Oral Answers to Questions

Robert Neill Excerpts

Tuesday 6th March 2018 Commons Chamber

[Mr Speaker]

The hon. Gentleman’s offer is an interesting one. It might also be thought by some to be a divisible proposition.

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

The Secretary of State’s speech this morning and his emphasis on more use of release on temporary licence is extremely welcome and constructive. Will he bear in mind, though, that the Through the Gate programme currently involves careers and employment advice being given only towards the very end of a prisoner’s sentence, whereas all the evidence suggests that that should happen much earlier?

[Mr Gauke]

I thank the Chair of the Justice Committee for his comments. I do want to look at whether we can expand release on temporary licence and provide these opportunities more widely. On his second point, I am keen to ensure that we provide as much support as possible and make it clear that there is a second chance for people who have gone to prison. If they abide by the rules and comply with the system, we want to give them the support to turn their lives around.

HMP Liverpool

Robert Neill Excerpts

Thursday 22nd February 2018 Commons Chamber

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

This report results from what was described by Her Majesty’s chief inspector of prisons as one of the worst inspection reports of a prison that he had ever seen. It was certainly the worst inspection report that our Committee had ever seen, and because of the gravity of the situation, we took the unique step of holding a specific evidence session on that individual inquiry. It highlighted conditions at Liverpool prison that the chief inspector described as “squalid”, a history of deterioration over a two-year period, and a history of management failure at local, national and regional level over time. It also highlighted a number of systemic problems that we believe need to be addressed by the Ministry of Justice and Her Majesty’s Prison and Probation Service, and the need for approaching afresh the way in which we deal with Her Majesty’s inspectorate of prisons itself.

I pay tribute to my Committee colleagues, a number of whom are present today, for their work on this report, and I also welcome the Minister to his place. I particularly appreciated that he came to give evidence to our inquiry so early on after being appointed to the post in which he now serves.

I will briefly give an outline of the report against that grave background. Liverpool prison was inspected in 2015, and it was failing then. It was re-inspected in 2017, and it had got worse. Some of the conditions—a man with mental health problems was in a cell that was not fit for habitation; there was a serious maintenance backlog, which had doubled from 1,000 to 2,000 over that period; and the prison’s markings against various tests had gone backwards—indicate that there was not only a gross failure of management locally and of regional and national oversight, but that the detailed recommendations of Her Majesty’s inspectorate that were made in 2015 had not properly been addressed. That is the first systemic matter that we deal with.

It is pretty clear that the national leadership was not alert to the situation on the ground. The head of the Prison Service, Mr Spurr, told us that he had been informed by the local management that some 60% of the recommendations in 2015 were on track to be met. That was wrong. In fact, only 25% or so were met, and 60% were not met. The leadership nationally was out of touch. What was the role of the deputy director of corrections, who is supposed to have oversight of 12 prisons in that region? Clearly, there was not just a failure of communication, but a breakdown in how the system operates there.

This is not unique. Her Majesty’s chief inspectorate indicated to us that it is a regular occurrence for its recommendations not to be acted on. The Minister rightly said to us that much greater use should be made of the inspectorate’s recommendations to drive changes in behaviour. He is right. We recommend therefore two specific matters to effect that.

First, at the moment, the Prison Service marks its own homework. That is not satisfactory and it can breed complacency. We therefore recommend that HM inspectorate of prisons be given additional resource so that it can follow up on the implementation of its recommendations and hold the prisons to account. This is not a large sum in the overall scheme of things; perhaps one inspection team would be sufficient to do that task and probably the overall saving would mean that that would be offset. Secondly, Ministers should take personal responsibility for seeing that inspections reports are acted on and should account to the House for that, perhaps through a letter to the Justice Committee. That is the first of our practical recommendations, which we believe would offer a way forward.

There is also the whole question of the oversight itself. Given that there were these failings, we believe that greater work should be done to ensure the transparency and accountability of the above-establishment teams in the Department. There was also a clear problem with the facilities management contract. Not only had the backlog got worse, but it is pretty clear that basic issues that should have been picked up in the contract were not. The fact that there were rat and cockroach infestations shows the level of the problem. We are not satisfied with the explanations we were given for the failures in that contract and we therefore believe that there is a need for greater transparency, so we recommend that major contracts—this is a national contract with Amey—should be subject to a public framework outlining the expectations, performance and penalties levied against a provider for failure. If there are penalties, there should be a system of naming and shaming, frankly. There should be a public notification of where failures occur and how much of a penalty is levied against the provider as a percentage of the contract. That is the whole point of outsourcing—to drive changes in behaviour—but we need transparency and openness to do that.

We also noted that part of the problem derives from persistent overcrowding. Liverpool prison was not understaffed—it was up to establishment—but it was nevertheless pressed for numbers. We therefore recommend that the Ministry and the Prison Service publish a plan to resolve the persistent overcrowding of the estate to take some of the pressure off governors. The new governor at Liverpool is clearly doing a very good job under difficult circumstances, but we need an overall plan to deal with overcrowding and that must aim to reduce the prison population and/or increase safe and decent capacity. We cannot have it both ways.

We were also concerned about the poor situation with healthcare that was discovered. We were glad to see commitments from the Prison Service and NHS England to publish a partnership agreement on how they are working together. However, the last partnership agreement expired in April 2017 and the new one will not be in place until 2018. The gap of a year is not satisfactory in that regard and we need steps to be taken to ensure that that does not happen again.

Finally, we need a commitment to ensuring that there is decent healthcare. It was explained to us that the overcrowding and the nature of the regime meant frequently that prisoners could not be brought from their cells to healthcare appointments. We need a much more joined-up approach to that.

Those are the principal recommendations of our report, which I commend to the House. At the end of the day, the decency of a society is judged by how it treats those who offend against it as much as by how it treats those who do well by it. Liverpool failed in that regard. We did not house prisoners in the decent conditions that common humanity and our international and domestic legal obligations order that we should. That failure cannot be allowed to happen again. Making greater use of the inspectorate and its tools and adopting our recommendations will, I hope, be a constructive way forward in assisting the Minister in what I entirely believe is his intention to get back to getting the basics right and improving the Prison Service. It is in that spirit that we put the report before the House and commend it to the Minister.

[Dan Carden (Liverpool, Walton) (Lab)]

I welcome the Committee’s report and thank the Chair for his quick decision to hold an evidence session specifically on HMP Liverpool following the publication of the original inspectorate report. I further welcome his commitment, as stated here, to hold the Government to account when prisons fail. We have lost another life inside the prison this week. Anthony Paine, 35, who suffered with mental health problems, was found in his cell and died in hospital on Monday.

The report does not mention in detail the failure to invest in infrastructure and renovate wings or the loss and replacement of experienced prison officers and, critically, resources. Having seen the prison with my own eyes, I have no doubt that these are basic but expensive requirements, but in a written answer to me the Minister says that there is no plan to publish the costs or programme of urgent works at HMP Liverpool. Does the hon. Member for Bromley and Chislehurst (Robert Neill) agree that it is vital that we have transparency across our prison network and the improvements that are necessary if we are to see real change?

[Robert Neill]

I am grateful to the hon. Gentleman. I know that he knows Liverpool Walton jail, as it is often called locally, very well. I entirely understand the point of his remarks and I hope that the Ministry will reflect on that. The whole thrust of our report is that we need to shine the light of transparency and publicity on these matters. We also, in a separate piece of work, have in hand an inquiry into the shape of the prison population by 2020. Part of that, again, is this need to deal with overcrowding. Our recommendation on persistent overcrowding is part of that. Getting the fabric right is necessary. Walton jail—Liverpool prison—is one of the old Victorian prisons and there is a real need for work to be done there. If we are publishing the public framework on facilities maintenance, I do not see why we should not be able to have similar publicity about the capital works that are required.

[The Minister of State, Ministry of Justice (Rory Stewart)]

This is an historic opportunity. I think that this is the first time in more than 200 years of our Prison Service that we have had an individual prison debated on the Floor of the House. I pay tribute to the Justice Committee for bringing the matter forward.

The situation in Liverpool prison was, as the Chairman of the Select Committee has pointed out, genuinely shocking. It is very disturbing and it is unbelievably important that Select Committees, inspectors and Members of Parliament hold us accountable for prisoners. These are closed communities. They are often hidden away from the public. In many areas, they can be forgotten, and without scrutiny standards can drop. They dropped very seriously in Liverpool prison.

The condition in the cells was unacceptable; how prisoners were treated was unacceptable, and the lack of purposeful activity was unacceptable. We are now addressing this hard and quickly, but there are still huge lessons to be learned through the system. I pay tribute to the new governor, Pia Sinha, who has come in, taken cells out of commission and made it clear that she has cleaned the prison and that her objective over the next six months is to get those cells into a smart, good condition. We now have the money in place to put in the new windows and she is focused on ensuring that the education and employment activity is good.

More generally, there are lessons right the way through the prison system. We need to get the basics right. There is no point talking about rehabilitation or dealing with reoffending unless we have clean, decent and safe spaces for all prisoners. We want our prisons to be smart and well-functioning. We are bringing in more than 2,000 more prison officers, and that will relieve some of the pressures on the prison estate, but these are new prison officers and will need training and support until they have the prisoncraft to deliver what we require. We also need to invest a lot more in training. Because prisons are unbelievably complex environments, the governor needs the support and training—this could mean months of training—to ensure that they are in a position to turn around the prison. That training should also apply to the uniformed staff. Finally, the role of the inspector and the Select Committee will be vital in improving performance.

[Robert Neill]

I am grateful to the Minister for that response. He is very much on the case in recognising that we must get basic things: cleanliness, decency, the maintenance of the establishment, and the ability to run a regime where people can get out to healthcare appointments and rehabilitative work. All that is critical. Unless we turn the existing problems around, we will face a real crisis in our prisons.

I look forward to working with the Minister on those matters. In particular, I hope that he will take up our recommendations on the inspectorate and the constructive role that it can play. I can honestly say that this is a case of a small investment being likely to pay off in the long term.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

As co-chair of the justice unions and family courts parliamentary group, I welcome the report, but it is amiss that the Justice Committee did not take evidence from unions representing frontline professionals. I understand from the Professional Trades Union for Prison, Correctional and Secure Psychiatric Workers that the maintenance contractor, Amey, refused to undertake pest control at HMP Liverpool, and the previous governor—who was also not called to give evidence—had to use his already hard-pressed budget. I wonder whether the Chair would agree that governors’ autonomy is convenient cover for the Government’s failure to be accountable for the dire condition of the prison estate.

[Robert Neill]

Let me say first that the Committee engaged with the POA on a number of occasions, and on an ongoing basis. Secondly, the issues relating to facilities maintenance were examined in some detail. We said in our report that we were not satisfied with the outcomes and intended to return to the issue. Thirdly, it was specifically not our role to examine the position of the previous governor in terms of the future. We heard evidence from the inspectorate about the position at that stage, and we heard evidence from the current governor about what is happening now, which is an improvement, but we did not think that going into further past history would be constructive. Our recommendations are for ways to try to ensure that this state of affairs does not occur again.

[John Howell (Henley) (Con)]

One of the most distressing aspects of the report relates to healthcare. My hon. Friend has already spoken briefly about that. Does he feel, as I do, that we can have no confidence in the partnership agreement? One thing that it will not do is get prisoners out of their cells to attend appointments.

[Robert Neill]

I am particularly grateful to my hon. Friend for his work in the Committee on this and many other reports. He is absolutely right. We are calling for the partnership agreement to be published, so that we can examine it, because we cannot be satisfied that it is yet fit for purpose. Previous partnership agreements have broken down, so we need to know how this will be different—in terms of both its structure and the way in which it will operate—to be reassured that there will be no repetition of what went wrong in the past.

[Tony Lloyd (Rochdale) (Lab)]

I congratulate the hon. Gentleman and the Committee on an excellent, timely and important report. However, while it does move us forward, if we are to change our prisons from being simply places of detention in various outrageous conditions to being places where rehabilitation is central—which is what they ought to be—we still have an awfully long journey to travel. Her Majesty’s inspectorate of prisons should be given the resources that it needs for re-inspection, but we also need to be able to establish whether we are delivering the quality of healthcare, education and all the other things that are necessary in prisons that will allow—mainly—our young men to come out and become acceptable citizens.

[Robert Neill]

I know how closely the hon. Gentleman followed this issue during his time as a police and crime commissioner and as the interim mayor in his part of the world. He is absolutely right. The report is a useful step forward, but I do not pretend it can be more than that. It has to be part of a systemic change, and I hope that it will help to drive that, but we must think about the systems and about a long-term strategy that relates to the real purpose of our prisons.

[Mr Philip Hollobone (Kettering) (Con)]

I commend my hon. Friend for his statement and his Committee for its report.

When the Care Quality Commission investigates local hospitals and makes recommendations, it returns to those hospitals at a later date to see whether they have been implemented. I do not understand why the same system cannot be introduced for Her Majesty’s inspectorate of prisons.

Is it not extremely alarming that the information given by Liverpool prison to the head of the Prison Service was so inaccurate? Given the speed with which the Committee’s report was produced, will my hon. Friend encourage the Minister to be equally quick in responding to its findings?

--- Later in debate ---

[Robert Neill]

The quick answers are yes, yes, yes and yes. My hon. Friend is right on those points, and I am sure that the Minister will respond quickly. It would be bizarre if recommendations from the Care Quality Commission or Ofsted were ignored in the wholesale way in which those of Her Majesty’s inspectorate of prisons have been ignored in the past, and that absolutely needs to change.

[Ms Marie Rimmer (St Helens South and Whiston) (Lab)]

I pay tribute to the Chair of the Justice Committee, which I have recently rejoined. I also pay tribute to the Minister for the quick actions that he has reported. However, we must not forget why we find ourselves in this situation.

I am pleased about the announcement—made some time ago—of the recruitment of an extra 2,500 prison officers, but we must bear in mind that we lost 7,000, so there is still a gap of 4,500. The prison population figures are falling now, but they did go up. The nature of the inmates changed somewhat. The health needs of those imprisoned for historical sexual abuse, for instance, were obviously different from those of the other, existing prisoners, but the budget was not increased to deal with such differences. There has been a drain on resources. At the same time as the loss of the 7,000 prison officers, the drug Spice appeared, and became big business. There were fewer resources with which to manage the inmates, and morale went down with the loss of those prison officers. When recruitment did begin, a baggage handler could be paid more than one of the new recruits. It is important that when we do recruit—and we are recruiting now—those people are trained properly, not for a week but for months. Resources are what is needed. Of course money is important, but there is also the issue of how that money is used. As far as I can see, there has been absolutely no contract management. When I initiated a debate on mental health in prisons, I noted that there appeared to be no communication between the prisons and the health service. Contracts were awarded and money was given, but there was no monitoring of those contracts.

As the Justice Committee said, and as its Chair has said today, this is about systems and about getting them right. However, it is also about resources. It is about recruiting the right people, training and valuing them.

[Robert Neill]

I welcome the hon. Lady—in fact, I will call her my hon. Friend, because that is what she is—back to the Committee. I am very glad that she is with us once more.

It is true that we must look at all the issues. There is no single silver bullet. We need a comprehensive plan, and I urge the Government to work on that. I take the Minister’s assurances at face value, because I believe that he does have a desire to achieve what is needed. I look forward to working with him, on behalf of the Committee, to ensure that that happens. Staffing, resources, training, morale, the fabric of the establishment, facilities management and proper contract management are all part of the mix that we need to address.

Joint Enterprise

Robert Neill Excerpts

Thursday 25th January 2018 Commons Chamber

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

I join every other Member in welcoming you back to the Chair, Mr Deputy Speaker.

I congratulate the hon. Member for Manchester Central (Lucy Powell), my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) and the right hon. Member for Tottenham (Mr Lammy) on securing this debate. I wish to speak for several reasons. First, as Chair of the Justice Committee, I think it is important that we keep this matter under review. The Committee has given some consideration to this matter in the past, and no doubt we will again.

Secondly, throughout my adult life, I have been a practising barrister. I concern myself very much with the justice system because it is something of which I am part and in which I believe. A belief in that system was one reason why I came to this House. It is massively important that it does what it is supposed to do—that it does justice and that we get it right. Where we fail to get it right, we should not be afraid to say so.

Thirdly, I have a constituent—I think their partner is in the Public Gallery today—who is serving a life sentence, with, I think, a 23-year tariff, as a result of the application of the joint enterprise principle to a case of murder. He made no bones about the fact that he had been party to an offence of dishonesty, but was convicted of murder, by the application of the joint enterprise principle, as a result of the act of violence perpetrated by another individual. Therefore, that case comes exactly into those with which we are concerned.

For all those reasons, this is a very important debate. I am sorry that there are comparatively few people in the Chamber today. One thing that has struck me since I have been here is how, by comparison with the past, this House takes comparatively little interest in reform of our criminal justice law. Through the ’60s and ’70s, Members of this House—either through private Members’ Bills or the pressure that they put on Government to make changes to Government legislation—effected major changes for the better in many aspects of our criminal law: reforms of the law in relation to homicide and the abolition of the death penalty; and changes to the law in relation to the criminalisation of abortion and homosexuality. A vast number of other really important matters of criminal justice reform emanated from debate in this House. Sadly, too often, that gets squeezed out in the current climate. Perhaps we should debate it rather more.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

I am reluctant to intervene on such a good speech, but the hon. Gentleman knows of my interest as co-chair of the all-parliamentary group on miscarriages of justice. Does he not think that the Criminal Cases Review Commission is lacking in that it does not intervene enough, or early enough or persistently enough in these cases?

[Robert Neill]

There are a number of areas where changes are needed. I have great respect for the work of the Criminal Cases Review Commission, but I am conscious that it is under pressure both in terms of resource and of its terms of reference. It would not be unreasonable to look at that. Miscarriages of justice do occur. I know that full well because I vividly remember prosecuting one once—not in a murder case, but in a rape case. At the time, the evidence and the legal test appeared compelling, but, thanks to the work of the Criminal Cases Review Commission, evidence came to light, and I had no hesitation in not seeking to resist the appeal when it came to the Court of Appeal a second time. Its work, therefore, is really important. It is also important that it has the means to carry out its vital job, as its role is a significant one. However, there are other gaps that we must look at as well.

Everybody accepts now that there was a serious departure from good reasoning in the case of Chan Wing-Siu in Privy Council back in 1985. When one reads the case, the odd thing is that the judgment, which was described as “taking a wrong turn” in the Supreme Court, was, actually, almost not based on the principal facts or arguments that had brought the appeal to start with. The noble Lord, the member of the Privy Council, giving the judgment in that case rather went off on a tangent and developed what was then regarded as the concept of secondary parasitic accessory liability.

The matter could have been resolved perfectly well on the facts of its own case. It is set out very well in what is a very detailed judgment of a strongly constituted Supreme Court in the Jogee case. I certainly do not fault the judgment of the Supreme Court in Jogee at all. It is exceedingly well-reasoned, and it is significant that not only the then President of the Supreme Court, Lord Neuberger, but the current President, the then deputy president, Baroness Hale, were there. The then Lord Chief Justice, Lord Thomas of Cwmgiedd, took the unusual step of sitting in the Supreme Court because of his experience in criminal justice matters. Intellectually, the Supreme Court in Jogee got the answer right and said that the approach, which had encompassed so many people into secondary liability in homicide offences, was wrong. However, some practical errors remain in its application.

[Mr Mitchell]

I am most grateful to my hon. Friend for giving way. He is a lawyer, so can he explain to me, as a layman, why, following this extremely well-written judgment on Jogee, which I have also read, the criminal justice system did not react with enormous alarm and immediately set in train reviewing the very large number of cases affected by that judgment?

[Robert Neill]

That brings me to my next point. There is a concern that, in practice, the filter effect that has been put to the bringing of appeals out of time and the way that it has been interpreted in cases such as Anwar and others has been particularly restrictive. That is the difficulty. It is very clear that the Court of Appeal in the Anwar case and subsequent cases has taken a very narrow interpretation of the substantial injustice point. That does not necessarily have to be the case on the basis of Jogee, but it was always made very clear in the Supreme Court’s judgment that one should not assume that the Jogee case would mean that every conviction for murder on the basis of joint enterprise should be overturned, or that in many cases, even where convictions for murder were overturned, there would not also be a conviction for manslaughter, where appropriate, but the level of foresight and involvement was less. That is the important point that we have to consider.

None the less, it is really important that we get to a situation in which people are convicted, certainly, of offences where they have done wrong, but they should be convicted of and sentenced for offences that properly reflect the level of culpability of their behaviour. When we do not get that right, confidence in the system is understandably undermined. That is my concern, which is shared by the Members who have already spoken, about the difficulty of bringing cases out of time to the Court of Appeal. Clearly, it is something that needs to be looked at. If the rule of precedent makes it difficult for a court to do that, perhaps Parliament and Government should indeed consider it.

I just observe in passing that there is, in any event, the proviso to the Criminal Appeal Act 1968, which would mean that if, once the case has been heard, no material injustice occurred, the conviction can be upheld. At the moment, we have a double test: a test to bring the appeal out of time; and then the proviso. The difference is that, in the test to bring the appeal out of time, the onus is on the appellant to meet that test, whereas, under the Criminal Appeal Act, the test in relation to the proviso puts the onus on the prosecution. That is something that needs to be considered.

When the Justice Committee looked at this matter with some care in evidence sessions in the last Parliament, the view was that it had to be seen in the context of a very unsatisfactory state of the whole law of homicide. The distinction between murder and manslaughter remains extremely unclear in this country. Unfortunately, the Government have not so far taken up the opportunity of examining that. The logical route would be to ask the Law Commission to carry out such an examination.

In evidence to the Justice Committee in the last Parliament, Professor David Ormerod, a former chair of the Law Commission, a senior commissioner for criminal law and a distinguished academic Queen’s Counsel in criminal law matters, identified exactly that point. He said that a review of the law of homicide still represents the

“best solution”

that

“could encompass the decision in Jogee.”

It would enable us, thereafter, to encompass the consequences that stemmed from it. Referring to the Supreme Court’s decision, he said that

“they are constrained, as ever in the common law, by the facts of the case and the nature of the argument.”

That is our common law system. He went on:

“It was not possible for them to offer a comprehensive review of the whole of the law relating to secondary liability, which the Law Commission could do”.

One of my asks of the Government, as well as revisiting the test for bringing the appeals out of time, is to take up the Law Commission’s willingness to examine that area. There is vast expertise in the Law Commission, which is sometimes under-used. It can look at the matter dispassionately and set the difficulty that we have with secondary liability in these cases into the broader difficulties that we have with the law of manslaughter. We heard compelling evidence from criminal practitioners, representatives of the Criminal Bar Association, about the real difficulty and complexity of giving direction to juries in manslaughter cases.

Judges have given most careful directions, after discussions with counsel on both sides, but none the less they frequently find juries returning and sending a note seeking further clarification. The greater the lack of clarity, the greater the risk of injustice. I hope that issue can be resolved. I suggest to my hon. and learned Friend the Minister, whom I welcome to her post, that that would be a sensible and measured approach to find an intellectually sound way forward on this intractable issue.

The other matter that I would like the Minister to consider is the review of the Crown Prosecution Service guidelines, which the Justice Committee has taken evidence on. The fact that the review is taking place is welcome. The hon. Member for Manchester Central and my right hon. Friend the Member for Sutton Coldfield referred to the disproportionate impact that the use of prosecutions using joint enterprise has on certain communities.

The fact is that a doctrine developed some 300 years ago still has effects on the social life of 21st century Britain, and those effects are very different from what Lord Hale described in his “History of the Pleas of the Crown” in about 1670. We need to have a means of applying that prosecutorial tool in a way that reflects modern society.

I hope that the public interest element of the Attorney General’s guidelines can be strengthened to consider the appropriateness of using this tool in the way we have discussed, given the impact on certain communities within the United Kingdom. I hope that those are constructive suggestions that we can take forward from this debate.

--- Later in debate ---

[Stephen Pound]

Absolutely. The Supreme Court ruled that the law had been interpreted incorrectly, but that is only half of it. Interpreting the law incorrectly is one thing, but righting the wrong is what has to happen now.

[Robert Neill]

rose—

[Stephen Pound]

When it comes to righting wrongs, I give way to the hon. Gentleman.

[Robert Neill]

The hon. Gentleman is making a passionate case, and I agree with him that righting this wrong in the way the law has been applied is important. Does he agree that there is a distinction between the concept of joint enterprise and how it has been applied? For example, if he and I jointly agreed to commit a burglary, the application of joint enterprise in those circumstances would be perfectly reasonable. The problem is the extension to groups of young people when one of them commits acts of violence and when it is suggested that foresight can be equated with intent. That is taking the doctrine beyond a sensible application.

[Stephen Pound]

The hon. Gentleman has indicated a way forward. He knows the case of Craig and Bentley, which I remember very well indeed. Let us not forget that one of them was hanged in a joint enterprise. Is it not a salutary thought that if the present law on joint enterprise had been applied when we had the death penalty, 20 young men would have been hanged. Can you imagine? If everybody in a group of people where somebody dies was said to be guilty, as with Craig and Bentley, would they then all have been hanged? The mere thought of that is so horrific—so disgusting—that it surely brings into sharp relief the insanity of this legislation and the idea that this great blanket of culpability is cast over a whole group of people. This law is nonsensical. It is cruel; it is brutal; it is outdated; and it has to go.

Amazingly, this is the first time that we have debated this subject on the Floor of the House. I hope that today will be the beginning of a process that leads to people like Alex Henry seeing daylight, and his child and his family, again. When I last saw Alex—I have visited him a couple of times—he was keeping his head down and keeping his nose clean. He was working in the kitchen. He actually had kind words for the staff at HMP Whitemoor, but the hope was going out of his eyes. You could actually see him looking at that long, long stretch ahead of him.

As my hon. Friend the Member for Huddersfield (Mr Sheerman) mentioned, Alex is a man on the autism spectrum. In his appeal, evidence was submitted on his behalf by none less than Professor Baron-Cohen. One cannot get a higher authority than that. Was that opinion accepted? Clearly not, because my constituent is still in prison. He is a young, autistic man who, for 40 seconds of his life, did not stop something happening. He did not do anything wrong; he did not stop it happening. Can it really be right in this day and age that the law we are all sworn to uphold—that we are a part of as part of the establishment of this country—is having that impact on people, disproportionately on young black men, and disproportionately on the innocent?

I profoundly hope that this debate is one of those occasions when something really good comes from this place—where we put down a marker to say, yes, we thank JENGbA for all its work, but even without JENGbA, in our own heart of hearts, in our own knowledge and analysis of the situation, we realise that this stinks. It is wrong—dangerously, destructively, corrosively wrong. We have to do something about it. Let today be the day that we consign the present interpretation of joint enterprise to the dustbin, move forward and bring the law back into repute—take it away from ill-repute. I hope that Kenneth Alexander and Alex Henry can then take their rightful places in society where we want them to be. May they be here in the House of Commons, in the Gallery or wherever, rather than behind bars at the nation’s expense. We cannot go on like this.

--- Later in debate ---

[Mr Lammy]

My hon. Friend’s point is exactly right. The issue is: what would happen if the principal’s intent was graver than the accessory’s? In all the cases that have been mentioned, that is absolutely the case. What would happen if the outcome of whatever act the principal carries out is far graver than the accessory was aware of? Getting into questions about the foresight and intent of a young adult is next to impossible, given all that we know in modern times about child psychology, so it is absolutely right that young people should not be convicted in those cases.

[Robert Neill]

The right hon. Gentleman is making a powerful case and perhaps I can offer him some support. As evidence to the Justice Committee has made clear, practitioners feel it would be of greater assistance to juries deciding on these issues if there were a statutory framework within which they could work. We have done that with the Theft Act 1968, which replaced out-of-date common law arrangements. Ironically, in the Jogee case, the trial judge of first instance was this country’s first black woman High Court judge, but she was obliged to follow the rules of precedent. Had there been a revision of them by statute, the situation might have been different.

[Mr Lammy]

The hon. Gentleman is right. He makes the case that it is now for the House really to get thinking about these matters.

As the hon. Gentleman will be aware, an accessory party can be liable under joint enterprise, even if they withdraw from a group before any crime is committed. Many hon. Members will think of the example of a group of students in a playground or a park, where someone talks about teaching someone a lesson—in fact, we might recall such an occasion from our own lives when we were younger—and one of those individuals thinks that teaching a lesson involves significant violence, assault or even something ending in murder, and just because the group had discussed teaching someone a lesson, someone else may end up in prison for murder.

We have been in the House when or know of times when Members have picked up the Mace—I am thinking of the former leader of the SNP and Lord Heseltine. If you picked up the Mace and an older Member thought it was coming towards them and died from a heart attack, you would be in serious trouble. However, if you had discussed it with your colleagues beforehand, they too would be in serious trouble. A whole political party—on that occasion, the SNP—might have been heading towards that. That shows how ridiculous this situation has become, and it is why we need an urgent review.

We are having this debate after politicians have said, “We have to crack down on gangs and that is why we are doing this.” But has it worked? Knife crime is rising: in England and Wales, there were 36,998 knife crime offences in the 12 months to the end of June. Hospital admissions as a result of knife crime and the use of sharp objects are rising. We have a real problem in London, which the Mayor of London is trying to deal with. Has this therefore had the effect that people suggested it would? It has not. It has not had that effect because it is not minors driving knife crime—it is serious organised criminals: gangsters and kingpins. They are driving the trafficking of cocaine and drugs, which is leading to the turf wars that are making some of the communities we represent more violent. The 14, 15 and 16-year-olds or those in their early-20s locked up for the offence of joint enterprise do not know anything about getting a tonne of cocaine from Bolivia or Colombia. We must go after the gangsters, but we are hearing very little about that.

The Ministry of Justice’s own research on joint enterprise convictions understands the psychology of young people. It understands the need of teenagers and juveniles to belong to a group. It understands that they have a predisposition towards risk, seeking excitement and reckless behaviour. It understands their inability to inhibit their impulses and the fact that they have less self-control. All of us in the House who are raising or have raised teenagers will recognise all those characteristics. Are we really going to throw young men—black and white—into prison because they are young?

I have two boys at home. They navigate the streets of north London on their way to school and one in particular goes through some high knife-crime areas. I am raising boys who would never ever take a knife out of the house and use it on anybody else—I am absolutely sure about that—but can I say, if something is going on in a park, that one of them might not drift towards the action? Hand on heart, as a father, I cannot say that. I do not ever want to have to visit one of my own children in prison. None of us should want ever to have to visit young people in prison. None of us should want that waste. None of us should want those criminal records. It is time that this House acted.

--- Later in debate ---

[Ruth Cadbury]

I thank the right hon. Gentleman so much. Anybody who has had any contact with people who have been diagnosed with autism at a later stage knows that the condition is often not diagnosed early. Many people go though many difficulties in their lives before being diagnosed, if at all. Alex was one of those in that unlucky situation. Because autism is an invisible disorder, many assessments found traits of autism as highlighted in Professor Baron-Cohen’s report. That could be a factor in appeals.

The refusal of Alex’s appeal has left the family devastated, as the House can imagine, but they are determined to see him proved innocent. In their view—and mine, from what I know of the case—he is not a murderer. How many people in prison for joint enterprise have undiagnosed autism? We need to look at that.

Since Alex’s appeal was rejected last year, his sister Charlotte has applied to challenge the “substantial injustice” at the Supreme Court. The family are also taking Alex’s case to the European Court of Human Rights. They believe that joint enterprise breached article 7 of the European convention on human rights and the principle of legality that holds that there shall be no punishment without law. Since those convicted under joint enterprise were not actually convicted under a true law, their presumption of innocence under article 6(2) remains, and it is breached by the need to prove that the change in the law would have made a difference.

In October 2016, the Select Committee on Justice, on which I have the pleasure and honour of serving, wrote to the chair of the Law Commission to suggest that it review the law of joint enterprise, given the lack of legal clarity in the wake of the Jogee judgement—particularly on how juries should be directed on the question of intention. Unfortunately, the final version of the 13th programme of reform omits any work on joint enterprise. I know, however, that the Justice Committee’s Chair will continue to push those points.

[Robert Neill]

The hon. Lady is right that the Committee will want to pursue that point. However, there is nothing to stop the Government themselves asking the Law Commission to carry out a review, as has happened a number of times in the past.

[Ruth Cadbury]

Like the hon. Gentleman, I look forward to the Minister’s response.

As we have heard, the Justice Committee also wrote to the Director of Public Prosecutions suggesting clarification on the intention of the defendant. I support the clear demands put forward by my hon. Friend the Member for Manchester Central: proportionality, the need for proper data, a review of the CPS guidance and a review of older cases. All those are essential, and we look forward to the Minister’s response on all those issues.

For the sake of Alex, the thousands of others imprisoned under joint enterprise and their loved ones, I support the calls of colleagues across the House that the injustice be rectified. Let us right the wrong. If we really want to address knife crime, let us learn from the places that have actually brought it down.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

I am very grateful to my right hon. Friend for his comments. I would like to start the debate by commending the hon. Member for Manchester Central (Lucy Powell) for securing this debate on an issue that is close to her constituency and to her heart. I also want to thank my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell), my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) and the right hon. Member for Tottenham (Mr Lammy) for supporting the motion today.

I fully recognise the importance of the law in this area. When anyone is charged and convicted of a crime, it will have serious consequences for them, their families and their victims. This is especially the case when the charge may be for such a serious crime as murder. I also recognise the sensitivity of this issue, given that the youngest of those that JENGbA supports was 12 when he was charged with the offence, as many Members have mentioned. That will obviously have a significant impact on his life.

Many Members have identified what the Supreme Court decided, but it is important to set out the principles involved because some Members put forward hypothetical circumstances that could result in a conviction for accessory liability, and I am not sure that all those circumstances were right. It is important to be clear what we are talking about from the outset.

First, I will summarise a few of the points in the Supreme Court judgment in the case of Jogee, which was handed down in February 2016. It concerned a very specific area of the law on joint enterprise called parasitic accessory liability, rather than the whole law of joint enterprise. Such liability arises when two people, person 1 and person 2, participate together in one offence, such as a burglary, and during those events, person 1 commits a second offence—for example, he or she murders a security guard. Under the law as it stood before Jogee, if the second person foresaw that the first person might act with the intention to kill or cause really serious harm and participated in the burglary none the less, that second person would be guilty of murder alongside the first.

In the Jogee judgment, the Supreme Court said that that was wrong, as the motion recognises. A person cannot be guilty merely for foreseeing that an accomplice might commit a second offence during the course of the original plan. Rather, the Supreme Court held that such a person can be guilty only if he or she intentionally encourages or assists a person to commit such an offence and intends them to have the mens rea required for that offence. The effect of Jogee is that members of a gang who are not the principal perpetrators of the crime will not necessarily be guilty of the crime in question unless it can be shown that they have intentionally encouraged or helped the principal perpetrators to commit that crime. As many Members have said, the Supreme Court also held that offenders convicted under the old test would be granted permission to appeal only if they had suffered “substantial injustice”. That is the position as it stands, as a matter of law.

I should like to respond to some of the points that have been made today. In the short time allotted, I am afraid that I will not be able to respond to them all. I shall concentrate on those that are identified in the motion. There has been a suggestion that the number of cases brought under joint enterprise has been unchanged since the Supreme Court judgment. As the hon. Member for Bolton South East (Yasmin Qureshi) and others have pointed out, however, the difficulty with that argument is that there are no official statistics to enable us to confirm or deny that. A number of Members have criticised the Ministry of Justice for not collecting that data, and we are looking into that. It might be possible to address that under our reforms relating to the common platform. I can confirm that the Ministry of Justice is looking into the matter.

The point was also made that there has not yet been a successful appeal. I understand that that could be extremely frustrating for the parties concerned, but it does not mean that there is no route to an appeal. There is a system to challenge any previous decisions. It is possible for an appeal to be made by an individual, who could also apply to the Criminal Cases Review Commission to have their case reviewed by the Court of Appeal. Indeed, a number of cases have been brought. [Interruption.] They have been brought, but they have been unsuccessful. There has also been criticism of the threshold that the Court of Appeal applies in relation to substantial injustice, but this is not a new test brought in by the Supreme Court in relation to Jogee. It is a long-applied test that the Court Appeal uses in relation to out-of-time appeals.

The key point that has been advanced in relation to the motion today is that there is a need for legislation. I should like to identify a few reasons why it might not be appropriate to bring forward legislation at this stage. First, the law on joint enterprise is not set out in statute; it has evolved through case law. Some criticism was made of that by the right hon. Member for Tottenham, but the evolution of law through the courts has always been an important part of our common law justice system. In our law, the common law has equal weight with law made by statute. No judge in the Jogee case identified a need for Parliament to change the law. Indeed, the hon. Member for Manchester Central has accepted, today and previously, that the Supreme Court ruling said that it was the responsibility of the courts to put the law right. Many Members have accepted that the law as set down by the Supreme Court is right, but some have identified that the implementation of that decision is flawed. I would like to make a few points in relation to that.

The Crown Prosecution Service has already amended its guidance and it is currently operating on guidance in line with the Supreme Court decision. More importantly, it has consulted on revised guidance for use by prosecutors. The hon. Lady has contributed to that, which is to be commended. I am told that the CPS aims to publish a summary of its response to the consultation and the final version of its guidance in the early part of this year.

Many Members have rightly identified the disproportionate number of black and minority ethnic defendants in these cases, and I am pleased that the CPS has confirmed that the revised guidance will take account of the Lammy recommendations, which task the CPS with taking the opportunity of reworking its guidance on joint enterprise to consider its approach to gang prosecutions in general. The CPS has also revised its internal resources on gangs in the light of the recommendations resulting from the Lammy review.

The motion calls for clarity in the law, but it does not identify what the lack of clarity is or how the law could be improved. Indeed, as the hon. Lady has said, what is needed is for the Supreme Court judgment to be followed. There is no suggestion that the law itself needs to be changed; it just needs to be enforced.

[Robert Neill]

Does my hon. and learned Friend agree that it is not the doctrine of joint enterprise that needs to be put on a statutory basis or given clarification, but that its operation in relation to homicide, and the law of homicide itself, would benefit from a statutory review? That has been suggested by the Law Commission and by the Criminal Bar Association, and it would give us an opportunity to deal with the anomalies in joint enterprise in the context of homicide. I think that that is what we are looking for.

[Lucy Frazer]

My hon. Friend is prescient; I was about to go on to the broader points that were made during the debate. He made that point in his own speech, and he has raised it in the Select Committee as well. As a new Minister, I am happy to consider that in due course.

Some other, broader points were made. My right hon. Friend the Member for Sutton Coldfield mentioned disclosure, which I know the Attorney General is looking at. Many other points were made, and I will happily address them when time allows.

To return to the motion, I recognise the importance of the law on joint enterprise and the impact that it can have on people, such as the constituents of the hon. Member for Manchester Central and the others mentioned today. For the reasons set out, however, the Government do not believe that the time is currently right for any changes to the law on joint enterprise. It is for the courts to interpret the law, as laid down by the Supreme Court. I hope that the revised guidance on secondary liability will provide a clear direction for prosecutors in this area of law, and I am happy to keep the matter under review. With that in mind, I invite the House to reject the motion.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 23rd January 2018 Commons Chamber

[Mr Gauke]

The hon. Lady raises an important point. Having satisfactory arrangements with the European Union in that and other matters is important. It is right that we are ambitious so that the interests of children are put at the heart of what we do.

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

I welcome my right hon. Friend to his post—it is nice to see a lawyer there. I hope that he has a lengthy tenure, if not quite as long as that of the last lawyer from Ipswich who was Lord Chancellor, and with a better ending.

Much of the debate has been concentrated on criminal justice co-operation. In his speech on being sworn in, my right hon. Friend rightly referred to the importance of the UK as a jurisdiction of choice in civil and commercial litigation. Will he make sure that that aspect is not lost in our negotiations, in particular the importance to London and the UK’s financial services sector of having contractual certainty?

[Mr Gauke]

I thank my hon. Friend. Given that the last Lord Chancellor from Ipswich was Cardinal Wolsey, who ran into some difficulties in negotiations with a powerful European supranational body, I should tread carefully. It is important that in our negotiations we try as best we can to provide the certainty my hon. Friend seeks.

--- Later in debate ---

[Lucy Frazer]

As I have outlined, there is a £1 billion modernisation programme, which is very complex and which we need to get right. It involves a number of aspects that need scrutiny. PwC is replacing a number of smaller providers and fulfilling an important service.

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

Recent reports by Her Majesty’s inspectorate of prisons reveal a consistent failure by the Prison Service to act on recommendations made by the inspector in previous reports. Does the Minister agree that compliance with inspectorate reports should be the norm, rather than the exception?

[Rory Stewart]

Absolutely. Peter Clarke, the chief inspector of prisons, does an extraordinary job. We are doing two things to make sure that we implement those recommendations better. First, we have set up a special unit in the Ministry to follow up on every one of those recommendations. Secondly, we have introduced an urgent notification process, which requires us to reply within 28 days to any issues raised by the inspector.

Parole Board: Transparency and Victim Support

Robert Neill Excerpts

Friday 19th January 2018 Commons Chamber

[Mr Gauke]

I thank the hon. Gentleman for his questions. In the context of wanting to support the victims, he was right to focus on the areas that he did, and I am grateful to him for not pressing me further on either the facts or the legal advice.

It is right that the victims be treated with concern and sympathy and that all due processes be followed. We need to understand precisely what happened in this case and whether support was provided as it should have been, which is why I am pleased that Dame Glenys Stacey is undertaking that role. I share the hon. Gentleman’s instincts for greater transparency in Parole Board decisions. It frustrates victims that they do not get to know what is happening or the reasons for a decision. Equally, it can be frustrating for the Parole Board, too, if it cannot articulate its reasons. We need to look carefully at this, but we also need to move swiftly, which is exactly what I intend to do.

On an end-to-end review, my focus has been on transparency and victim support, which are the immediate issues in front of us. I recognise that there is a debate about the original investigation and how these indeterminate sentences for public protection, which we have now abolished, operated, but it is right at this point that our reviews focus on transparency and the victims and that they continue as a priority to look at how these matters are dealt with.

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

Happy birthday, Mr Speaker.

It is clear that my right hon. Friend the Lord Chancellor has applied himself to what is a very serious and troubling case with the greatest scrupulousness and care. He is to be commended for having applied a difficult legal test to what is ultimately a legal decision, and I welcome his extension of the review into the operation of these matters. Does he agree that one political and policy decision we could make as soon as possible would be to change the Parole Board rules to permit Parole Board panels to give reasons for their decisions. It would likely command support across the House and, as he rightly observes, have the support of the Parole Board itself. It would also be of great reassurance to the public.

[Mr Gauke]

My hon. Friend makes a good point. We understand the full implications of greater transparency in Parole Board decisions and what those implications might involve. It is not my desire that as a matter of course offenders should take cases where, for example, Parole Board panels have taken the firm line, based on the evidence in front of them, that they should not be released. We need to understand the full implications, but there is clearly a case for much greater transparency.

Parole Board and Victim Support

Robert Neill Excerpts

Tuesday 9th January 2018 Commons Chamber

[Mr Gauke]

I thank the hon. Gentleman for his remarks. He makes the case for transparency, as did Nick Hardwick, and I completely see and, indeed, sympathise with the argument being made. This case does demonstrate the need for us to look at the issue of transparency again, and it is important that we do so in some detail. I say to the House that I start off on the basis that more transparency is needed, as this case has demonstrated.



The hon. Gentleman asked me about an end-to-end review. It is right that we focus on how we can make this system more transparent to provide reassurance to the public that it is working in the way that it should. That should be a priority, as should victim support. The hon. Gentleman asked whether the basis of the system should be not opting in but opting out. That is something that the review will be able to consider.

We must be sensitive to the fact that, whereas some victims of crime will be keen to be fully informed at every stage, others simply may not want to hear the name of that criminal again. Different people will have different views about how they want to be treated, and we need to find a system that accommodates both approaches.

I was also asked about prioritising cases. Clearly, there is a need to look at cases in which the tariff has been completed. They will be higher priority than cases in which the tariff still has some years to run. That is what happens in practice.

The hon. Gentleman raised the Supreme Court case. The matter is sub judice and I cannot comment further on it, but I reassure him and the House that we need a system that has the confidence of victims. That is what we all want to ensure.

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

I welcome my right hon. Friend the Secretary of State to his new post. It is nice to see that it is still possible for a lawyer to become Lord Chancellor.

I thank my right hon. Friend for his offer of co-operation with the Justice Committee investigation into this matter. I welcome his statement. Will he bear it in mind that Professor Hardwick has indicated a greater desire for openness in the system, and consider the suggestions that he made in his Butler Trust lecture last autumn? Will he start very swiftly with reviewing the provision in the parole board rules that prevents the board from giving reasons for its decision, even if it might want to do so? Giving the reasons might help to reassure both the public and victims.

[Mr Gauke]

My hon. Friend is right to raise that case. I met Professor Hardwick this morning and he is already participating in this debate. He has been making the case for greater transparency and, as I said in an earlier response, he makes a good case. There is a strong case for ensuring that the reasons for particular decisions are put in the public domain, where that provides reassurance.

European Union (Withdrawal) Bill

Robert Neill Excerpts

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Dominic Raab]

I am going to make some progress.

Amendment 116 would require a referendum on accepting the deal or remaining in the EU before the clause 9 power could be used. I do not think that is feasible, and it is not desirable. The Government are clear that the British people have voted to leave the EU. We will deliver on their direction. We will deliver on their mandate. Frankly, this is a pretty thinly veiled attempt to block Brexit and defy the result of the referendum, in contrast to some of the other, legitimate, concerns raised across the House. If hon. Members wanted to hold a second referendum on the terms agreed with the EU, the proper time and place to argue for such a requirement was when the EU Referendum Act 2015 was passed. I therefore urge that the amendment not be pressed.

New clause 4 would require separate legislation to set the exit day, and new clause 66 states that the exit day cannot be set before Parliament has given its approval for the terms of the withdrawal agreement. The Government accept the case for legislative prescription of the exit day for the sake of finality and legal certainty, so I hope that the new clause has been rendered unnecessary.

New clause 19 and amendment 55 mandate that the power in clause 9 cannot be used until the publication of the withdrawal agreement, and that it should not be available until all other exit Bills have passed. It is clear that regulations cannot be made under clause 9 until an agreement exists and its contents are known. It is not necessary, then, to require on top of that that the agreement be published and placed in the House of Commons and House of Lords Libraries before the power can be relied on. It is of course standard practice to lay international treaties before Parliament under the Constitutional Reform and Governance Act 2010. Equally, it is not right to tie the use of this power to the publication of other primary legislation passed in this Session. I therefore urge the hon. Member for Nottingham East (Mr Leslie) not to press the amendment.

Amendment 361 was tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), who is the Chair of the Justice Committee.

The amendment would create a separate power to legislate for the implementation period. I hope that the Government’s announcement of a separate Bill—primary legislation—covering the withdrawal agreement and the implementation period addresses his concern.

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

I am grateful for that. It was intended as a probing amendment, particularly to ensure that these issues were ventilated. Given the assurances in previous days of the debate, I obviously will not push it. While I am on my feet, however, may I ask the Minister to reflect again on the point made by my hon. Friend the Member for Stafford (Jeremy Lefroy)? I really think that the Government would find a means of resolving these matters if they were to bring forward their own amendment in the form suggested.

[Dominic Raab]

I thank my hon. Friend for his comments. I hope he understands how, in good faith, I am seeking to engage with hon. Members on all sides of the House. It was my suggestion that the assurance would be made to him. We will reflect further as we lead into Report—

[Robert Neill]

May I correct an error of mine?

[Dominic Raab]

I give way.

[Robert Neill]

I mentioned the wrong constituency name. I am sure that my hon. Friend the Member for Stafford would not at all want to be involved in that matter. The Minister knew who I meant. It was my hon. Friend the Member for Stone (Sir William Cash) who made the point, and I hope that the Minister will consider it.

[Dominic Raab]

My hon. Friend’s point is well made.

I turn now to equalities legislation. Last week, the Government tabled amendment 391 to schedule 7. My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) said that the Government had not come back with any amendments in response to requests. This is a clear example of where we have listened and returned. The amendment will require Ministers to state in writing, when using the powers in clauses 7 to 9, whether they amend equalities legislation and that they have

“so far as required to do so by equalities legislation, had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010.”

Prison Reform and Safety

Robert Neill Excerpts

Thursday 7th December 2017 Commons Chamber

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

I beg to move,

That this House takes note of the Justice Committee’s Twelfth and Fourteenth Reports of Session 2016-17, on Prison reform and the Government Responses to them; notes with concern the continuing crisis in prisons in England and Wales, with an historically high prison population and unacceptably high levels of violence, drug availability and use, disturbances and self-harm and self-inflicted deaths in the adult and youth custodial estate; further notes the critical reports by HM Chief Inspector of Prisons on individual establishments and thematic issues; welcomes the Government’s intention to proceed with a programme of prison reform and to produce a prison safety and reform action plan as recommended by the Committee, and the publication of performance data on each prison from 26 October 2017; regrets the fact that the Government does not intend to bring forward legislation to establish a statutory purpose for prisons, enhance the powers of HM Chief Inspector of Prisons, and place the Prisons and Probation Ombudsman (PPO) and the UK’s National Preventive Mechanism on a statutory basis; further regrets the Government’s rejection of the Committee’s recommendation that it should report at six-monthly intervals on the impact of governor empowerment on complaints made to the PPO and Independent Monitoring Boards; and calls on the Government to ensure that information on prison performance and safety is published regularly, and with sufficient detail and timeliness to enable the effective scrutiny of the management of prisons by the Ministry of Justice and HM Prison and Probation Service.

Let me begin by thanking the Backbench Business Committee for giving us the opportunity to debate this very important topic. I thank the co-sponsor of the motion, the right hon. Member for Delyn (David Hanson), and other members of the Justice Committee from both sides of the House who have contributed to our work over the last two years or more, both in this Parliament and in the previous one. I thank the many organisations involved in prison reform and other prison issues that have assisted us with their advice and experience. I also thank officials in Her Majesty’s Prison and Probation Service, and many prison officers across the country, for their co-operation. They all deserve our thanks.

[Mrs Madeleine Moon (Bridgend) (Lab)]

Will the hon. Gentleman give way?

[Robert Neill]

I will, but I hope that the hon. Lady will bear in mind that I should like to make a bit of progress.

[Mrs Moon]

Did the hon. Gentleman visit Parc prison during the Committee’s investigation? Its fantastic work with Invisible Walls Wales is making a huge difference to people’s attitudes to prison, as it shows that prison can change the lives of prisoners and their families, and prevent reoffending.

[Robert Neill]

We regularly visit a number of prisons. We are indeed aware of the very good work done at Parc, and we will continue our visits.

Let me explain why we tabled the motion and did so in these terms. We cannot avoid the reality that our prison system has reached a stage at which we have to use the phrase “a crisis”. I do not do so lightly. More than 30 years’ experience of practising criminal law and visiting prisons to advise prisoners, and subsequently, since coming to the House, working with the criminal justice sector, have led me inevitably to the conclusion that the system is under unprecedented strain.

I do not for one second doubt the good intentions of the Minister or his predecessors, the Secretary of State or his predecessors, or the management of Her Majesty’s Prison and Probation Service. I also acknowledge the good work that we see carried out by many individual members of that service as we travel around the country. However, the fact is that despite the extra money that has been invested in the system over the past year or so following one of our reports, and despite all that good work, all the indicators were going in the wrong direction at the time of our two reports—one on prison safety and one on governor empowerment and reform, which were produced in the 2015-16 and 2016-17 Sessions respectively—and they are still going in the wrong direction.

[Norman Lamb (North Norfolk) (LD)]

I am grateful to the right hon. Gentleman—

[Robert Neill]

I fear not.

[Hon. Members]

Not yet!

[Norman Lamb]

Not yet, although the hon. Gentleman clearly deserves it. I am grateful to him for giving way.

I agree with the point that the hon. Gentleman is making, but is not the truth that we simply incarcerate too many people, particularly people with mental health problems? A staggering percentage of people in Britain have mental health problems, learning disabilities or autism. Should we not be investing more in keeping people out of prison and ensuring that they receive the treatment that they need to help them to avoid the criminal justice system in the longer run?

[Robert Neill]

The right hon. Gentleman makes an important point—I agree with him. Although the two reports that gave rise to the debate do not touch on this directly, he may be pleased to know that our Committee has agreed to embark on an inquiry in which we shall examine projections for the prison population up to 2025. The issue that he raises will prove to be a particularly important aspect of that inquiry.

[Sir Greg Knight (East Yorkshire) (Con)]

Does my hon. Friend agree that literacy levels among prisoners are a problem? I understand that more than 30% of people in prison have the reading age of an 11-year-old. Does not that issue really need to be addressed?

--- Later in debate ---

[Robert Neill]

My right hon. Friend is absolutely correct. The former Justice Secretary, my right hon. Friend the Member for Surrey Heath (Michael Gove), rightly drew attention to that on a number of occasions. If we do not turn our prisons into places of education, we will be failing, and we will continue to see reoffending. Part of the problem is the low attainment of people when they arrive in prisons, which is often linked with issues such as social deprivation, a lack of proper parenting and unstable family backgrounds. A particularly high percentage of prisoners have been in care. Low educational attainment is a real problem, and it needs to be tackled.

One of the problems that we have found is that because of other pressures on the system, many establishments are running regimes that are so restricted that it is virtually impossible for prisoners—even those who are well motivated and wish to do so—to gain access to some of the educational facilities that ought to be available. I am grateful to my right hon. Friend (Sir Greg Knight) for that important point.

[Jo Churchill (Bury St Edmunds) (Con)]

Does my hon. Friend agree that prison can offer people a second chance to gain access to education and to find the right track? Charities such as Greener Growth, which works in Norfolk prisons in particular, and with which I work in my constituency, help people to understand and connect with the environment, and to learn about food and nutrition, as well as many of the other basics in life that most of us take for granted.

[Robert Neill]

That is absolutely true. I and the Committee recognise the very good work that is being done. What we must do, however, is to ensure that we have a programme of prison reform that genuinely enables us to draw that good work together, and establishes a comprehensive and holistic strategy. For example, the good that is done by many people on existing programmes ought to be reinforced by a more imaginative use of release on temporary licence, but sadly there has been a decrease of some 40% in the use of such release over the last couple of decades. That is one of the indicators that are going in the wrong direction.

[Rebecca Pow (Taunton Deane) (Con)]

If we could engage many more outside bodies—local authorities and experts on health and education, for instance, and indeed experts on the environment such as the Wildlife Trust, all of which run many good programmes on rehabilitation—we could not only save money by setting up the right framework, but benefit offenders, as the courses would give them skills and make them feel confident about going into the outside world.

[Robert Neill]

My hon. Friend is right. I cannot do better than quote a 19th-century prison reformer, Thomas Mott Osborne, a former politician who is described by my right hon. Friend the Member for Surrey Heath as having “turned to good works”. That might seem to be a tautology. Osborne became immersed in the prison system, becoming a prison reform commissioner in New York just before the first world war. He said:

“Not until we think of our prisons as in reality educational institutions shall we come within sight of a successful system; and by a successful system I mean, one that not only ensures a quiet, orderly, well-behaved prison but has genuine life in it— one that restores to society the largest number of intelligent, forceful, honest citizens.”

He was right then, and I think that what he said rings true now as well.

[Colin Clark (Gordon) (Con)]

I was recently very glad to speak to a group of sixth-formers who were doing modern studies. They asked me about prisons, and I said that at the first opportunity I would raise the subject on the Floor of the House and ask one of their questions. Given that my hon. Friend is so well versed in the subject, I will ask him this question: “Do you think that the support on offer to those prisoners who suffer mental health disorders is effective?”

[Robert Neill]

All the evidence that our Committee has seen so far suggests that it is not effective. Far too many people in prison suffer from mental health difficulties. David Cameron, the former Prime Minister, rightly emphasised that in a speech that he made back in 2015.

[Victoria Prentis (Banbury) (Con)]

In February.

[Robert Neill]

My hon. Friend clearly remembers it vividly.

The point was well made. There are some people whom we will always have to imprison, because they deserve to go to prison, and I saw enough of them during my career as a barrister practising criminal law. However, many others are in prison due to far more complex reasons, such as bad choices, lack of support, lack of background, poor education and mental health issues. We need to be much more discerning, and that means that we need a much more sophisticated approach to our penal policy. We need to introduce genuinely robust alternatives to custody, in the right cases, for those who do not pose a threat and a danger to the public, and who can be reformed without their going to prison. That is critical. We have not yet achieved that. The objective must be not only that the public have confidence in sentences, but that we have proper systems for the rehabilitation of those who are incarcerated. However, as almost everyone will be released at some point, we must make sure we release them in a better state in which they can contribute to society than at present.

[Ms Karen Buck (Westminster North) (Lab)]

The hon. Gentleman rightly emphasises the importance of education and rehabilitation, but may I add to that the critical aspect of access to family? May I also commend to him the report on mental health in prisons by the Joint Committee on Human Rights, and the work that we did in particular to look at the risks to young people and offenders with mental health problems? Such people were not always guaranteed access to family support at critical times when they were self-harming or at risk of suicide?

[Robert Neill]

That is a good point. I know that other Members are likely to take up such issues in our debate.

While we welcome a number of the initiatives the Government have implemented, more still needs to be done. We particularly regret the loss of the prison element of the Prisons and Courts Bill from the last Parliament, because implementing that statutory purpose, which would have covered rehabilitation for prisoners, would have been an important umbrella under which to link the good work that is done. It is good news that we have a proper prison reform and safety plan, but it needs to be put into a full context. We need positive actions, not just the good aspirations that are set out.

It is essential that there is a genuinely independent and robust inspectorate, so it is regrettable that we have so far lost the opportunity to place on a statutory basis not just the chief inspector of prisons, but the whole inspectorate as an institution, and to strengthen the requirement for his recommendations to be complied with. It is scandalous that at present only a minority of his recommendations in some cases are taken up. That needs to change. It is also regrettable that the prisons and probation ombudsman has not yet been placed on a statutory basis. I hope we will find a legislative opportunity to do so. I believe that that is what the Minister wants to do, but we must not lose it from the agenda.

Our present indicators on safety in relation to self-harm, suicides, prisoner-on-prisoner assaults and assaults on staff continue to go in the wrong direction. More prison officers have been put in, but we must look in the round, too, at how many people we are sending to prison and why, and what sort of regimes are in place.

We have heard reference to an action plan on prison safety and reform, and what we hope to see are specific strategies on employment, mental health, women in prison, and the retention and recruitment of officers, because keeping experienced officers is particularly important. We need a proper robust inspection mechanism under which the inspectorate, which includes excellent people, has genuine teeth to do what is necessary. We also need more transparency, and I know that my hon. Friend the Member for Banbury (Victoria Prentis) will talk about transparency and data.

It is not acceptable that of the 29 local prisons and training prisons inspected this year, 21 were judged to be poor or not sufficiently good. I know that the Minister agrees that we have to turn that around, but all too often I have found a culture of defensiveness among some of the senior management in Her Majesty’s Prison and Probation Service. We must use the changes that have been made to the structure of the service to refresh that culture at every level. That is a most pressing matter. Great work is done further down, but all too often prison officers and governors have said to us that they feel cut out from what can still be too hierarchical a chain of command. That needs to change.

Prison reform was rightly described by David Cameron as a “great progressive cause”, and so it should be, for politicians on both sides of the political divide. Let me end with this thought. A former Home Secretary who became Prime Minister said that one of the purposes of prison was to seek the treasure in the heart of every man. That was said by Winston Churchill in 1910. I say to the current Prime Minister that, as she has had the same career trajectory, such a phrase would fit very well with her desire to tackle burning injustices in society. Some of the injustices and challenges are as acute in our prisons as anywhere else. This is a great cause, and we hope that we will have some more specific responses from the Minister to our reports, and a further indication of the direction of travel. Above all, I hope the House will not let this issue slide down the agenda.

[Several hon. Members rose—]

--- Later in debate ---

[John Howell (Henley) (Con)]

I have three questions for the Minister. First, he has heard our concerns about the quality of the ageing estate and the living conditions of prisoners. What is he going to do about it? My second question relates to the status of the Government’s closure plans and the plans to update and replace our ageing prisons. What is he going to do about it? My third is about the impact of the uncertainty over closures on what the prisons are trying to do to update and improve their facilities.

To deal with my first question, the Minister will have seen, as we have, responses from the chief inspector of prisons. The Minister has heard from Members today that in many prisons they have seen the showers and lavatory facilities are filthy and dilapidated, and there are no credible or affordable plans for refurbishment. In a report published only a couple of months ago, the chief inspector of prisons said:

“prisoners are held in conditions that fall short of what most members of the public would consider as reasonable or decent”.

My question on what the Government are doing to address that is therefore very relevant.

On my second question, the Minister himself said only a couple of months ago that although his first priority is to ensure public protection and provide accommodation for all those sentenced by the courts, the commitment to close old prisons remains a viable option with which he wishes to continue. I would like to hear some detail about what is happening with that programme. The prison estate transformation programme reconfigured the estate into three functions looking after reception, training and resettlement, and those three are crucial to the better treatment of prisoners. The Ministry was also given £1.3 billion in 2015 as part of the spending review to invest over the next five years to transform the prison estates. What exactly is happening to that, what progress is being made and how is it being dealt with?

As for my third question, on the impact of the uncertainty about closure on prison performance and staff morale, I would echo the comments made by the hon. Member for Lewisham West and Penge (Ellie Reeves) about the visit to Rochester prison. I was unable to go on that visit myself, but it is crucial that the lessons from it are learned. One lesson was, as governors told the Committee, that the decision about investing in maintenance or improving the facilities had not gone ahead since the announcement that the prison would close. As we have heard, the old 1840s prison buildings there are described as “deplorable” and “deteriorating”. That has an impact on recruitment, which had been frozen in Rochester, and it proves demoralising to staff.

I think that those three questions are the most pertinent.

[Robert Neill]

I am grateful to my hon. Friend for raising the Rochester issue. He might like to know that we found on one wing that some 22 showers had been out of operation for months. When we spoke to people there, they said that the nub of the problem was that the facilities management contractors do not see the governors as their client. They see their client relationship being with MOJ’s commercial arm. That needs to be got right, because it means that the efforts of governors get nowhere—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Can I be honest? We need shorter interventions. The hon. Gentleman was hoping to get two minutes at the end of the debate; he is eating into those two minutes, and he will understand if he does not get them.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Mr Sam Gyimah)]

I congratulate my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) and the Justice Committee on securing the debate. I thank Members for their contributions, and I say genuinely that almost every one of today’s contributions was constructive, made in good faith and had some merit to it. My hon. Friend set out with characteristic clarity many of the issues that our prisons face. As we all know, and as the hon. Member for Leeds East (Richard Burgon) mentioned, nearly all prisoners will one day be released, and our prisons should therefore be places that put offenders on a path that will enable them to turn away from crime after release. That means providing a safe and secure environment, and providing the right interventions and support to help them to turn their lives around.

No one doubts the challenge that we face with prisons or expects the situation to be quick or easy to turn around. I do not shy away from conceding that our prison system faces unprecedented challenges, but I am confident that we have a clear and coherent plan to face them. That plan will secure the safety and security of our estate and staff, empower governors to make decisions that are right for their prisons and ensure that we have the right tools in place to support offenders to rejoin society as productive citizens.

The hon. Members for Lewisham West and Penge (Ellie Reeves) and for Paisley and Renfrewshire North (Gavin Newlands)—the hon. Gentleman is no longer in his place—referred to the motion, and specifically to its mention of our “historically high prison population”. We can all agree that the prison population is too high, and we want it to fall. We have, however, made a considered judgment deliberately not to set an arbitrary target for reduction, because we will not compromise on our responsibility either to the victims of offences or to the safety of the wider public.

We will always hold in prison criminals whose offences are so grave that no other penalty will suffice, or who would pose a genuine threat to the public if they were released. The hon. Member for Paisley and Renfrewshire North mentioned that the Government should have a presumption against prison sentences of less than 12 months. Indeed, in England and Wales there is a presumption against custody at all, and a judge will send someone to prison only if they deem it right to do so.

It is important to remember that our current prison population reflects the number of serious offences—including sexual offences—that are coming before the courts. That has changed the nature of sentencing, with fewer people being sent to prison on short sentences but more people in prison for serious crimes on longer sentences. To give the House one example, there are now 4,000 more sex offenders in prison in England and Wales than there were in 2010.

I can assure the House that we will always have enough prison places for offenders who are sentenced to custody by our courts, and that protection of the public and providing justice to victims will remain our principal concern. Our latest statistics show that we have operational capacity of 87,370, and a current headroom of 1,241 places. The current population is 86,129, which includes 4,048 women prisoners. Of course, we cannot simply build our way out of the situation, but we have a plan for bringing in new capacity to the estate to provide modern, cost-effective, fit-for-purpose accommodation that will deal with the concerns that have been raised about overcrowding in the estate. HMP Berwyn currently has 800 places in use and will, when fully operational, provide 2,100 places. In addition, we have announced plans to build four more modern prisons.

[Robert Neill]

The Minister has talked about capacity, and I understand the work that is being done. A specific point that has been raised with the Select Committee is the slowness of repatriation of foreign national prisoners who are serving sentences in the UK. Repatriation of such prisoners would certainly take some pressure off capacity. Can he help on that point?

[Mr Gyimah]

The Chair of the Select Committee makes an important point about the repatriation of foreign national offenders. He will be aware that the most effective scheme to repatriate foreign offenders is the early release scheme, under which 40,000 foreign national offenders have been moved out of the UK since 2010. Prisoner transfer agreements are also in place but they are a lot more challenging because they require the co-operation of the receiving Government, who do not always seem that keen to receive their own criminals back. A cross-governmental task force is focused on that very point.

To realise our vision for prisons, we must first make sure that they are secure environments that are free from drugs, violence and intimidation. Again, I do not shy away from acknowledging that the use and availability of drugs in our prisons is too high. The House has often discussed how the rise of psychoactive substances in our prisons was a game-changer, but it was when organised criminal groups moved in to take control of supply routes into prisons that the rules changed. Those groups have embedded themselves throughout the prison estate, becoming ever more sophisticated in driving the drug market and making enormous profits from peddling misery to those around them. Their activities have been facilitated by the rise of new technologies, such as phones and drones, which they have used to try to overcome our security. Those things represent an unprecedented threat that we have not faced before.

As our prison officers and law enforcement partners across the country regularly prove, however, we are more than up to that challenge, and our investment in security is bearing fruit. Last year alone, HMPPS officers recovered more than 225 kg of drugs from the prison estate. Our new team of specialist drone investigators has already helped to secure over 50 years of jail time for those involved, and the team is supporting ongoing investigations across the country.

We are providing officers with the tools that they need. We have already introduced drug tests for psychoactive substances across all prisons, provided every prison with signal detection equipment and trained more than 300 sniffer dogs specifically to detect new psychoactive substances. The right hon. Member for Delyn (David Hanson) asked about the availability of sniffer dogs to prisons. The dogs operate on a regional basis and are therefore available for prisons to call on as and when they are needed.

We are investing heavily in security and counter-terror measures, including £25 million to create the new security directorate in HMPPS. This year we will also invest more than £14 million in transforming our intelligence, search and disruption capability at local, national and regional level, to enable us better to identify and root out those who seek to supply drugs to our prisons. That investment includes more than £3 million to establish our serious organised crime units, which will relentlessly disrupt our most subversive offenders.

We are already seeing early successes from the new capability. A recent joint Prison Service and police operation at HMP Hewell, involving our specialist search teams and dogs, recovered 323 items, including 79 mobile phones, 29 improvised weapons, 50 litres of alcohol and a large quantity of drugs.

--- Later in debate ---

[Mr Gyimah]

The hon. Gentleman is being unfair. Recruiting more staff, investing in intelligence and technology, rolling out a drugs strategy, introducing an urgent notification process, giving more power to the inspectorate—all these things will solve the issues in our prison. I hear him on the Scrubs—I admit that there are deep-seated challenges there—but prisons are, always have been and always will be difficult places to manage. That said, we are making significant investment in tackling the problems in our prisons. As I have always said, it will not happen overnight, but the actions I am outlining show our determination and will to overcome the problems and make sure that our prisons are places of safety and reform.

Hon. Members have touched on employment and education. We have recently announced the new futures network, which will be a broker between prisons and the employment sector so as to help prisoners to find work on release and get better purposeful activity in prisons. The hon. Member for Enfield, Southgate (Bambos Charalambous) mentioned that sometimes drug habits develop because prisoners are bored. Having more and better purposeful activity is important to ensuring that prisoners are purposefully occupied in prison and can gain new skills and improve their chances of finding a job on release.

My hon. Friend the Member for Henley (John Howell) rightly mentioned the estate. Yes, the plan is to create 10,000 additional places. Of course, there have been issues with maintenance, but those are issues for facilities managers, and I am in direct contact with them to ensure that, whatever the future plans for a prison further down the line, we maintain standards of decency in that prison.

In conclusion, reducing reoffending, protecting the public, reforming offenders and ensuring the safety and security of our staff and those in our custody remain my Department’s top priorities.

[Robert Neill]

I appreciate the Minister’s remarks and the spirit of them. Will he confirm that the Government remain committed, when a legislative opportunity occurs, to placing the powers of the inspectorate, the prisons and probation ombudsman and the national prevention mechanism on a statutory basis?

[Mr Gyimah]

I can confirm that we are very alive in looking for legislative opportunities to do exactly what my hon. Friend says. He will be aware that where there are other avenues, such as private Members’ Bills—one to enable us to switch off mobile phones is going through the House now—to make practical progress, we are doing so.

We must break the ongoing cycle of reoffending that has for too long blighted communities the length of our country by helping offenders to turn their lives around and prepare them for a productive and law-abiding life on release. I will end by reiterating some of the remarks I made at the start of the debate. Reforming our prisons to be places of safety and reform will not be easy, but the House should be in no doubt about the energy and resolve with which we will continue to tackle head on the challenges that we face. I welcome many of the points made today. They were constructive. I disagree on a number of issues with the Opposition spokesperson, but I know that we all share the same intention: to make our prisons places of safety and to ensure that when people come out of prison, they do not reoffend.

[Robert Neill]

I thank my 14 Back-Bench colleagues who contributed to this debate, and I appreciate the spirit of the Minister’s response. We look forward to working with him and his colleagues. He has not by any means answered all the questions raised in the debate, but that was partly a matter of time. We will need to continue to press the Government on several matters, but we look forward to doing that.

Since there is a lot of speculation today about what people have framed and put on their walls, in various contexts, perhaps I might commend something for the Minister’s wall. When Thomas Mott Osborne took over responsibility for Sing Sing penitentiary in New York, he said he was going to turn the jail from a scrap heap into a repair yard. That would not be a bad thing to have on the wall of every prison governor’s office and every office in NOMS and the MOJ.

Question put and agreed to.

Resolved,

That this House takes note of the Justice Committee’s Twelfth and Fourteenth Reports of Session 2016-17, on Prison reform and the Government Responses to them; notes with concern the continuing crisis in prisons in England and Wales, with an historically high prison population and unacceptably high levels of violence, drug availability and use, disturbances and self-harm and self-inflicted deaths in the adult and youth custodial estate; further notes the critical reports by HM Chief Inspector of Prisons on individual establishments and thematic issues; welcomes the Government’s intention to proceed with a programme of prison reform and to produce a prison safety and reform action plan as recommended by the Committee, and the publication of performance data on each prison from 26 October 2017; regrets the fact that the Government does not intend to bring forward legislation to establish a statutory purpose for prisons, enhance the powers of HM Chief Inspector of Prisons, and place the Prisons and Probation Ombudsman (PPO) and the UK’s National Preventive Mechanism on a statutory basis; further regrets the Government’s rejection of the Committee’s recommendation that it should report at six-monthly intervals on the impact of governor empowerment on complaints made to the PPO and Independent Monitoring Boards; and calls on the Government to ensure that information on prison performance and safety is published regularly, and with sufficient detail and timeliness to enable the effective scrutiny of the management of prisons by the Ministry of Justice and HM Prison and Probation Service.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 5th December 2017 Commons Chamber

[Dominic Raab]

I understand the point that the hon. Lady is trying to make, and she has done so in a constructive way, but I am not sure that the evidence is there to back up her assertion. We provide a wide range of legal help, for example in civil and family cases. Last year we spent £100 million on legal help, including practical support and telephone helplines that provided advice on 20,000 occasions last year. There are also online tools to make it clear to people when legal aid is available, but other sources of legal advice are also available.

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

When changes were made to legal aid in family matters, it was anticipated that there would be considerable growth in the use of mediation. In fact, the numbers using mediation have dropped massively, and all the evidence indicates that that is because early legal advice is a gateway to mediation for assisted parties and reduces the burden of litigants in person in the courts. Is it not time that the Minister looked again at the issue?

[Dominic Raab]

My hon. Friend is absolutely right that we need to be encouraging more alternative dispute resolution, and I think that there is agreement on both sides of the House that we should incentivise cases being settled and not going through the courts, because of the cost and the trauma for those involved. The LASPO review provides an opportunity to look at all of this in the round, but I do not think that the answer will be exclusively about money; it will also be about the positive incentives that we put in place.

--- Later in debate ---

[Dr Lee]

I recently met the chief executive of the Criminal Injuries Compensation Authority and was convinced that it has in place systems to deal appropriately with all cases. However, if there is a particular case that is of concern to the hon. Lady, would she please write to me? I will respond.

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

Repeated failures in facilities management contracts are discovered every time the Justice Committee visits a prison. The latest example is the 22 showers left unrepaired for months at Rochester that we saw last week. Will my right hon. Friend conduct an urgent review of the operation of the contracts and the appropriateness of penalties, and will he speed up the work that is required to be done?

[Mr Lidington]

My hon. Friend makes a good point. When an inspector or, for that matter, my hon. Friend’s Committee draws attention to problems of that kind, we certainly take that up firmly with the contractor concerned. I am also keen that we learn and apply lessons about how previous contracts were negotiated to ensure that we get better performance in future.

European Union (Withdrawal) Bill

Robert Neill Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Theresa Villiers]

That was certainly the stated intention when the charter was originally drafted, but the judicial activism of the ECJ has seen the scope of the charter expanded. Essentially, what we are talking about is the division of power between our courts and our legislature. I do not believe that we have the national consensus to deliver such a significant change to our constitution as to enable our domestic courts to strike down our laws.

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

My right hon. Friend talks about the expansion of the charter through the role of the ECJ. Can she give us an example where it has actually been the charter that has caused that expansion? In reality it is the European convention on human rights rather than the charter of fundamental rights that has tended to lead to an expansion.

[Theresa Villiers]

Of course, the key expansion as far as the United Kingdom is concerned was the confirmation by the European Court of Justice in the Åklagaren v. Hans Åkerberg Fransson case that the charter did actually apply to the United Kingdom and that the opt-out that was supposedly obtained by Tony Blair was not valid.

That brings me to my final reason for scepticism about the charter and the amendments. I was an MEP during the period when the charter was drafted in the EU constitutional convention with a view to inserting it in the abortive EU constitution.

--- Later in debate ---

[Alex Sobel (Leeds North West) (Lab/Co-op)]

I thank the hon. Member for Eddisbury (Antoinette Sandbach) for her speech, which showed her great experience and knowledge from her many years practising in the legal profession. I have heard many other Members from both sides of the Committee who have eminent knowledge in this area—they have spoken in this and previous sittings and will speak in others—not the least of whom is my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), who is in his place. He studied in the school of law at the University of Leeds; I studied in the school of computing at the University of Leeds, and I hope to apply that knowledge later in my contribution.

Opposition Members are looking to the Bill to ensure that retained EU law within UK law keeps us aligned with EU rights and regulations. I am going to outline my concerns about the Government’s decision to exclude certain elements of EU law through the EU withdrawal process. For instance, it makes no sense whatsoever to me to exclude from that process the charter of fundamental rights. Where is the analysis of the effects of removing the charter from our law? What safeguards are in place to ensure that we are not creating a legal chasm that has unknowable effects on individuals and businesses?

Article 8 of the charter covers the protection of personal data—the right to privacy and the right to data protection, which serve as the foundation of the EU’s data protection law. Getting rid of article 8 could prevent businesses from building customer profiles across the EU, which will directly harm the ability of small companies to compete when selling their products on social media platforms, an area in which the UK has seen huge growth. I am very pleased that my right hon. Friend the Member for East Ham (Stephen Timms) has tabled amendment 151 on this matter.

The charter is fundamental to our response to the Government’s failures on clean air, an issue that is engulfing many cities across the UK, not least my city of Leeds. Article 37 ensures that people have recourse to the courts when there are environmental breaches. In fact, the UK has been sent a final warning that it must comply with the EU air pollution limits for nitrogen dioxide or they will face a case at the European Court of Justice. In the Environmental Audit Committee, on which I sit, the Secretary of State for Environment, Food and Rural Affairs could not articulate what powers and mandate a new UK environment protection agency would have to replicate the loss of article 37. He said that

“we will consult on using the new freedoms we have to establish a new, world-leading body to give the environment a voice and hold the powerful to account. It will be independent of government, able to speak its mind freely.… We will consult widely on the precise functions, remit and powers of the new body”—

no definition there. He also said:

“We also need to ensure that environmental enforcement and policy-making is underpinned by a clear set of principles”—

no definition of those principles. How can we be satisfied with an EU withdrawal process that does not provide for our leaders to be accountable for their environment failures? My constituents voted overwhelmingly to remain in the EU and do not expect to lose the rights provided by the charter of fundamental rights.

Many of those rights, as has been pointed out, are well established in UK law, but many others are new rights that have been introduced since our membership of the EU and the signing of the Lisbon treaty. Will the Government argue for each of those rights in turn in the House, or are we to take it on trust that they will be retained and that we will continue to enjoy them post-exit day? Attempting to scrap the charter is cowardly and speaks to the suspicions of people up and down the country that the Government are not working for them but instead working for the hardest possible Brexit.

[Robert Neill]

There have been a number of powerful speeches from Members on both sides of the Committee on this important issue. I shall be as brief as I can, but I want to begin by picking up the point made by my hon. Friend the Member for Eddisbury (Antoinette Sandbach). This is what we are supposed to be doing in this House. This is about proper parliamentary scrutiny. I do not care about the views of writers of newspaper headlines. If any one of us stands up and seeks to scrutinise the Bill to improve it, we are doing our duty by our constituents. Anyone who thinks that doing so is somehow opposing either the Bill or the wishes of the electorate has precious little knowledge of—or, even worse, no respect for—our parliamentary processes.

In an endeavour to seek to improve the Bill and assist the Government, I supported a number of amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and others, and I stand by that. I hope—I get the impression from the spirit of what has been said—that the Government recognise those issues and will find a means to take them forward constructively. That is in everyone’s good interests, but I want to reinforce as swiftly as possible the significance of that. The Government’s position in relation to the protection of human rights has been grossly mischaracterised by some Opposition Members. That does the debate no good. I do not believe for a second that it is the Government’s intention to diminish rights protection. Equally, it is important that we get right the way in which that is protected. I hope that my hon. and learned Friend the Solicitor General will reflect on that.

I particularly want to refer to Francovich litigation, because this is a classic case of making sure that we do not inadvertently do injustice to people as we take necessary measures in the Bill to incorporate existing European law into our own. No one has a problem with that, but it is not right to deny people the ability to seek effective remedy for a course of action that arises under retained law. The whole point of having sensible limitation Acts is to prevent people from being denied a remedy with the passage of time when they have done nothing to deserve that. We need a bit more clarity—for example, if there is a pre-existing right to a course of action that is available until the moment we leave the European Union, it ought to be possible for someone, once they have become aware of that course of action, to pursue it through our courts.

[Mr Grieve]

I agree entirely with my hon. Friend. While the Government have made an argument that there is a problem because of the international law aspect in such a piece of litigation going all the way to the European Court of Justice, there can be no argument that the same rules that applied when we were in the EU should apply to any such piece of litigation, even if the end-stop is our own Supreme Court. It is perfectly easy to do, and the Bill has to be altered to allow that to happen.

[Robert Neill]

The case that my right hon. and learned Friend makes is completely unarguable. There is no answer to that thus far from the Government, and the only answer is to change and improve the Bill. To fail to tie up that clear, apparent and recognised loose end in the Bill could have the effect, almost by negligence or a measure of inadvertence, of denying UK citizens rights they might otherwise have. That would seem to me to be almost verging on the disreputable. I do not believe that the Ministers on the Treasury Bench wish to do that for one second and I know they will want to put it right. I hope that they will make it clear that it is the Government’s intention to make sure that that lacuna is resolved.

--- Later in debate ---

[Sir William Cash]

On amendment 10, I am sure that my hon. Friend observed what was said about the absence of reference to paragraph 5 of schedule 1, which deals specifically with the question of interpretation. Does he also agree that one of the greatest dangers is the idea that the Supreme Court, of its own volition after we have left, will be able to disapply any legislation? Does he not agree that that is a fundamental principle, too?

[Robert Neill]

I think the most important principle is legal certainty. It may well be very sensible for us to start to remove, as soon as possible, bits of retained law that we do not want to keep, but it seems to me to be equally implausible to retain something without following through on the logic from whence it comes. I recognise my hon. Friend’s point, but the issue, as my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) pointed out, is one of the Bill’s own making. I hope that the Government will table an amendment—before the Report stage—to remove these internal contradictions sooner rather than later. I think we all want to be in the same place, but justice requires not only independence of the courts but a proper framework in which it can operate. Above all, it requires certainty. The Bill as it stands runs the risk of creating uncertainty, and that cannot be in anybody’s interest.

I have been struck by the tone of the responses we have had from the Government Front Bench so far, but it is really important to stress that this is a matter of very significant principle. We wish to give the Government the best possible fair wind. I have no doubt whatever about the intentions, credit and integrity of the Solicitor General, who will reply to the debate shortly. What he says will weigh very heavily with many of us. I am sure he will do something that is constructive and helpful, and will help to improve the Bill. This is an important point that I wish to put on the record, because if there is not something of that kind, we will have to return to the issue as the Bill progresses. I hope that that will not be necessary. I believe it will not be necessary, but it is important to stress how fundamentally significant it is. These matters may seem technical, but they are vital to the underpinning of a sound piece of proposed legislation going forward.

[Tommy Sheppard (Edinburgh East) (SNP)]

I support those amendments that seek to ensure that the charter of fundamental rights is not exempted when we transfer powers from the EU after Brexit. Like many people I expect, I have received a lot of correspondence from constituents, and I wanted to start by reading from one—because time is short I will just read the last section of a letter from one of my constituents, Andrew Connarty:

“I feel that the EU and its legislative and judicial bodies protect me as a citizen and have a process of checks in place to protect my human rights, my legal rights and provide me with security. A lot of conversation in the media covers the rights of EU citizens in the UK who are foreign nationals, but what about the rights of EU citizens in the UK who are British nationals?”

Andrew Connarty is one of the great number of people in this country who are fearful of what is about to happen. For them, the process of leaving the EU is not some great liberation or removal of an alien superstate that oppresses them and over-regulates them. They see this as a loss of something of themselves; they see themselves as being diminished and lessened by this process.

Some on the Government Benches will say, “Well, that view does exist, but it is the view of a small liberal elite”. Indeed, a Member earlier tried to taunt a colleague by suggesting that the vote for remain in her constituency could not possibly have been motivated by concern about the charter of fundamental rights. I accept that the great mass of people are probably completely unaware of what particular rights we are talking about, but that does not mean they are unconcerned about them. Joni Mitchell probably summed it up best with the line,

“you don’t know what you’ve got

‘Till it’s gone.”

The reason is that by their very nature political rights do not put obligations on the rights holder—they do not have to be defended and claimed every day; they put obligations on everyone else. We all have to respect the rights of others. In particular, private corporations and public institutions have to respect the rights of others. It is not until they are changed and that relationship alters that people understand that something has been taken away from them. That is why it is absolutely vital that we educate people about the process now happening.

There was some debate about whether the rights in the charter are substantial at all, about whether they mean very much and about whether they are covered elsewhere in legislation. In 2006, this Parliament established the Equality and Human Rights Commission to advise us on such matters. I have read its briefing—I suspect most have—in which it cites clear examples of articles in the charter that are not replicated in other forms of legislation and states that, if the charter is not transferred or incorporated into British law, these rights will be lost. They include—I will not read them all: article 22 on child labour; article 8 on the right to be forgotten on the internet; article 26 on independence for disabled people; and article 24 on the access of children to both parents. These are rights that we have now that we will not have if the charter does not come over post Brexit.

It is not necessary to lose these rights in order to achieve Brexit. I say to the Brexiteers: I am not one of you but you can have Brexit without losing these rights. It is entirely possible. We do not need to do this, so why are we discussing it at all? The Minister said earlier that it makes no sense to have the charter if we are not a member of the EU, because it refers to the EU, yet the entire canon of European law is being taken over and incorporated into British statute, and this charter goes along with it to give citizens rights in respect of it. It makes total sense, therefore, to bring the charter over in the process of repatriating these powers.

There has been talk that it would be silly to bring the charter over because it would create anomalies and inconsistencies with other parts of the Bill, but the Bill already recognises that there are a million anomalies in the process and makes provisions to deal with them. We wonder, then, what is so special about the charter that it cannot happen there, too. Leaving that to one side, however, the most telling argument, as colleagues have said throughout the last six hours, is surely that it is operational at the minute. Why is our legal system not grinding to a halt under the pressure of these contradictions if they are so great? The truth is they are not so great. It works at the minute, and there is no reason it could not continue to work beyond 2019.

In the absence of a rational argument for the retention of clause 5 and schedule 1, I am compelled to find myself reaching the same conclusion as the right hon. and learned Member for Rushcliffe (Mr Clarke): what is happening here is pure politics. There are those on the other side who will be satisfied by being thrown this bone, and, as the right hon. and learned Gentleman put it himself, the idea of being able to get rid of a provision that includes both the word “Europe” and the word “rights” creates a double salivation, but I do not think that it just about sating those who are so Europhobic that they will get pleasure from this; I think there is something else going on as well.

The hon. Member for Eddisbury (Antoinette Sandbach), who is no longer in the Chamber, said earlier that the Government did not intend to remove or weaken our human rights, and I take that at face value. The Government have certainly not come here and said that that is their intention. In fact, no Members—or almost none—have said today that they want to remove people’s human rights, to weaken protection at work, or to lessen consumer protection laws in this country, although I rather fear that the hon. Member for Gainsborough (Sir Edward Leigh) nearly let the cat out of the bag when he referred to “the wrong people” having rights in the charter.

The hon. Gentleman talked about the repatriation of powers so that he could have “real human rights” in this country. I dread to think what he means by “real human rights”. I find him an honourable fellow and I am sure that he means no malintent, but I know that there are plenty of people in our society and in our community who will take advantage of any roll-back of civil and human rights protection to ensure that our religious and political freedoms are constrained so that they can adhere to theirs. I think we need to be eternally vigilant, and I hope very much that the Government will feel able to think again.

I say this to those in the centre ground of the Tory party: “If you are just trying to keep the good ship together and keep every faction on board, and if you think that by giving this concession on human rights you will shore up the Government’s support, remember that your former leader David Cameron thought he would be able to do that by having a Brexit referendum in the first place, and look how that has worked out.” I sincerely say to them, “Once bitten, twice shy. Please think again.”