Victims and Prisoners Bill

Debate between Sarah Champion and Robert Neill

2nd reading
Monday 15th May 2023 Commons Chamber

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

I start by warmly welcoming my right hon. and learned Friend to his position, to which nobody in this House is better suited. I know that he will fulfil it in the most distinguished manner; he comes to the position of Secretary of State and Lord Chancellor with a background in our criminal justice system that is second to none and a reputation at the Bar for scrupulous fairness and integrity.

My right hon. and learned Friend and I both used to deal in the same kind of work and we are both still in contact with many who work in the criminal justice system. His reputation as both prosecutor and defender was impeccable. It is right that the House should know that, and it is important because it means that he will know the importance of going on the evidence and of acting on a fair, rational and ultimately humane basis. The best prosecutors are the fairest and the most humane, and he was a very good prosecutor. I hope he will bring those attributes to the role of Secretary of State and Lord Chancellor.

My right hon. and learned Friend was also an active and distinguished member of the Justice Committee. I hope he will remember some of the work we did together. I am delighted to see another former Justice Committee member in the form of the Attorney General, who is sitting on the Treasury Bench as well. I feel a little like Banquo—not on the Treasury Bench, but the father of Law Officers. I am proud of having worked with both of them.

I turn to the Bill, which is an admirable place for the Secretary of State to make his debut. It is a bit dangerous to make classical allusions, but the Bill is a bit like Caesar’s view of Gaul—divided into three parts—and one can come to different judgments about those different parts.

Let me start with part 1, which relates to victims. It is welcome. It fulfils a manifesto commitment of our party, and I am glad to see it there. The Justice Committee very much appreciated the opportunity the Government gave us for pre-legislative scrutiny of part 1. That was helpful and I hope the Government found it so. We also welcome the fact that the Government accepted a number of our recommendations—in particular the inclusion of bereaved families specifically as victims in the Bill, the strengthening of the role of Victims’ Commissioner, and the statutory obligation on statutory agencies to make victims aware of the contents of the code.

Those are important steps forward, although, with respect, I think that more could be done. I particularly thank the Minister of State, my right hon. Friend the Member for Charnwood (Edward Argar), for his constructive and full engagement with the Committee throughout the pre-legislative scrutiny. It was a good example of how such scrutiny can help the process. I might come back to that point in relation to other parts of the Bill.

I think that more could be done in some areas, but I nonetheless welcome the Bill. I suggest that we look at a couple of areas that the Select Committee picked up as the Bill goes forward. There are more areas as well. One is that although it is right to put the code on a statutory basis, there is a gap at the moment. If we give individuals legal rights, it is important to give them proper means of enforcing those rights and a proper remedy for their breach or for when there is non-compliance from the agencies charged with delivering those rights. At the moment, specificity is still lacking in that regard. As the Secretary of State knows, if we give somebody a right we must give them a remedy—that is basic sound law. At the moment, the clarity about the remedy is lacking. I hope that we can consider that as we go forward.

There is also an important point, which the Justice Committee report referred to, about victims of antisocial behaviour that does not end up being charged as a crime, for whatever reason. There would be no harm at all in adopting a more generous and broad approach on that issue, and I hope the Government will consider that. Our evidence on both points I have mentioned was pretty strong. Subject to that, however, this is a good part of the Bill, and I hope that we can work constructively across the House to improve some aspects of it.

Part 2, which deals with the appointment of an independent public advocate, is an addition that I broadly welcome. I know that there are those who will say that it does not go far enough, and I accept that. The Committee did not have a chance to look at it in detail, although we did hear some evidence connected with it in relation to other inquiries—notably from the Right Rev. James Jones, who did such fantastic work on the Hillsborough inquiry. I think there is something helpful to be learnt from that evidence. I also pay tribute to the right hon. Member for Garston and Halewood (Maria Eagle), my fellow Committee member, for her exceptional work in relation to the Hillsborough disaster, and the work that has followed from that. Those in the House and beyond are in her debt.

While I think that the appointment of the independent public advocate will be valuable, I hope we can look at some other issues, in particular the scope of the scheme—the areas into which the advocate might be able to go—and the question of equality of arms for bereaved families at inquests when the actions of a state body are in question and that state body will inevitably be represented, at public expense, by lawyers, while the bereaved families are not. I hope that, for the sake of fairness, the Secretary of State will think again about that. Equality of arms is a concept with which both he and I are very familiar, and this strikes me as a gap in the system that it would not be onerous, in the overall scheme of things, to remedy.

Part 3 deals with prisoners and parole. Here I am afraid I must adopt a slightly different tone, because this is a rather less welcome addition to the Bill. That is not because the policy objective is wrong. As the Secretary of State said, it is clearly right and proper for the public to have confidence in our parole system, and that means there must be both a robust test of the grounds on which a prisoner can be released from sentence or moved to open conditions, and a robust system of ensuring that the test is applied. I think that the difficulty has been in the detail thereafter, and that may be reflected in the fact that this part of the Bill was not subject to any pre-legislative scrutiny. The Justice Committee wrote to the then Secretary of State offering to provide such scrutiny, but the offer was declined. I also note that the evidence we heard from the Parole Board only last week indicated only the most perfunctory engagement with the board itself. There was no face-to-face engagement; there was, I think, one meeting and a notification, effectively, after the event.

The Secretary of State, who has seen the transcript of that evidence session, will know that the Parole Board is a serious and expert body of people. As he rightly said, the vast majority of cases deliver results because people do not reoffend. It is perhaps surprising that a little more attention was not paid to the views of the board or, indeed, those of many other people working in the criminal justice system. The absence of outside consultation with almost anyone with knowledge of the system weakens the credibility of part 3.

[Sarah Champion (Rotherham) (Lab)]

In his role as Chair of the Justice Committee, the hon. Gentleman has done some remarkable work on the Bill, and I pay tribute to him and his Committee. I was stunned, although not surprised, to hear that there had been no consultation with either him or the Committee on part 3. I am also not aware of any consultation with the broader non-governmental organisations, campaigners, charities and survivors. Is he aware of any such scrutiny?

[Sir Robert Neill]

The short answer is that none has come to my attention or that of the Committee. We did endeavour to secure a range of views, particularly from practitioners in the field. It is helpful to hear such views, and I therefore hope that as the Bill proceeds, the Secretary of State and his Minister of State, my right hon. Friend the Member for East Hampshire (Damian Hinds), will, as fair-minded people, find opportunities to take them on board.

What we want is a system that is robust, because that is critical, but also—as the Secretary of State said—a system that is operationally effective. One of my main concerns is that the evidence we did receive suggested, in respect of nearly all the principal aspects of part 3, that there were serious question marks over how operationally effective it would be. This is a classic case of where Committee improvements ought to be made, and I hope the Government will move to do that.

I want briefly to flag up some of those areas. The current test is a very short one of some 20 words, but it is robust. Essentially it says that the protection of the public comes first, and that is what we want to achieve anyway. It is expanded somewhat by a non-exhaustive number of other matters that can be taken into account. There is nothing wrong in that, but I hope that it does not make the test unduly complicated. It is also worth remembering that there is sometimes a misunderstanding, particularly in media reporting, in relation to the work of the Parole Board. That comes in two forms. First, as the Secretary of State said, in 99% of cases people released on parole do not reoffend, and that context is important. Secondly, there is a suggestion of some kind of balancing test, but that is not the case.

It is clear from the evidence that since the case of Knight in about 2017, the Parole Board very properly changed its guidance to reflect the primacy of the protection of the public test. I think there is an element in this part of the Bill of trying to solve a problem that does not exist and therefore a risk of over-engineering the system, which we might not need. So let us look again at the best way to do the test. There is nothing wrong with changing it, and perhaps nothing wrong with expanding it, but are we sure that we are getting this right?

The next matter is the way in which the Secretary of State will, from time to time, step in and review. There is nothing wrong with a review but I have two concerns about the way it is done. In certain cases set out in the Bill, it will be necessary, if the Secretary of State chooses to carry out those powers, to intervene and substitute the Secretary of State’s decision, including on the facts, for those of the board, which will have heard first-hand evidence. The Secretary of State is not in a position to hear first-hand evidence, so he would have to rely on a provision that enables a person to be appointed to interview the applicant for parole and then report to the Secretary of State. I do not think the Secretary of State would normally feel happy acting on hearsay in such circumstances, because at the end of the day it is second-hand evidence and he would have to substitute his judgment for that of those who had heard first-hand evidence. I am not sure that is a fair or satisfactory way of resolving that problem.

The second concern relates to the very proper means of review. As the Secretary of State rightly said, there has to be an independent review, but at the moment the suggestion is that, among other things, this could go to the upper chamber. I would ask him to reflect on the appropriateness of the upper chamber. Logically, the element within the upper chamber that would hear these cases is the upper tribunal. The upper tribunal, as a logical part of that, would be the administrative chamber, which is essentially there to deal with points of law; it is not a fact-finding body.

The route of application to appeal against the Secretary of State’s decision has two grounds. One is the normal ground of public law and judicial review—involving unreasonableness, for example—and that is fine. The administrative chamber no doubt deals with those kinds of things. This also includes an appeal on the merits, and it has to, to make it ECHR-compliant, but this would involve a rehearing, and the upper chamber has no experience of re-hearing the merits. So this route of appeal does not seem to be right or practical.

Another point to remember is that there is no requirement for leave in this route. If someone appeals to the upper tribunal on the ground of legal deficiency, such as unreasonableness, they have to get leave. If they apply on the ground that the Secretary of State got it wrong on the merits, they do not have to get leave at all and they can have a rehearing, so everyone who feels aggrieved at the Secretary of State’s decision will apply on the ground that they want to challenge the merits and therefore have a rehearing. The number of unmeritorious appeals will therefore greatly increase, which is hardly the objective of this piece of legislation. It would also put these matters into a chamber that—with absolute respect to those who sit in the administrative chamber—is not geared up to hear evidence to do rehearings. It is going to the wrong place, so I hope we at least reflect on a better means of achieving that end.

The same goes for the Secretary of State’s powers to intervene and rehear. Would it not be better simply to toughen the current power of redetermination? Surely asking for a case to be reconsidered by a differently constituted panel would be a more practical way forward. There are practical and sensible things that could be done, but unfortunately they were not picked up by the Bill’s drafting, perhaps because nobody who knows much about it was asked.

Clauses 42 to 44 disapply section 3 of the Human Rights Act for the purposes of these hearings. Whatever one’s view of the Human Rights Act, there is no evidence that this is a problem in such cases. In fact, the evidence we heard from practitioners, from both sides, is that it can be helpful to have to have regard to section 3 in these hearings. These clauses seem to be trying to solve a problem that does not exist, and I wonder whether we really need them. It is perfectly possible to have a robust system that still complies with section 3. This is a needless distraction that sends the wrong signal about a certain desire to pick unnecessary fights, which I know is not the current Secretary of State’s approach.

Clause 46 addresses the Parole Board’s composition and the appointment of board members. It is perfectly legitimate to have more people with law and order experience, which could be included as a category, but we must be careful to make sure there is no suggestion that the Secretary of State can say that a particular class of person should sit on a panel for a particular type of hearing, as that would go beyond independence. There is strong case law from our domestic courts, never mind elsewhere, to say that the Parole Board carries out a judicial function and therefore must have a proper degree of judicial independence. There is a risk that the clause, as currently drafted, offends against that.

The final issue that arises is with the power to dismiss the chair of the Parole Board. There is already a protocol for removing a chair of the Parole Board who loses the Secretary of State’s confidence, and it was exercised after the Worboys case—I think it is called the Mostyn protocol. Why do we need an extra statutory power when we already have a way to do it? Establishing a statutory power creates another problem, because clause 47 says that the chair of the Parole Board shall not sit on any panels of the Parole Board. When we heard evidence, no one could work out why, but it has subsequently been suggested to me that it would be interfering with judicial independence to remove a chair who is sitting on a panel.

Perhaps the answer is not to have the needless power to remove a chair, because we can see the illogicality: if we want a Secretary of State to be able to remove the chair of the Parole Board, we have to make sure they are not carrying out any judicial functions, because otherwise the Secretary of State would be interfering with judicial independence. But we already have a means of removing a chair of the Parole Board, and it works, so why go down this rabbit hole?

My observations on part 3 are intended to be helpful and constructive, and I am sure the Secretary of State and the Minister will take them on board.

The Victims and Prisoners Bill makes no mention of the continuing injustice, as the Secretary of State rightly said—the blot and stain on our judicial landscape—facing a particular class of prisoner: those imprisoned for public protection. The House recognised that indeterminate sentences had failed and so abolished them, but not retrospectively. An increasing number of people on open-ended sentences, which Parliament has abolished, are being recalled. People have no hope of their sentence coming to an end and, because they are also potentially subject to a life licence, more people have been recalled than are serving their original sentence. Something has gone badly wrong here, which is doubtless why Lord Blunkett, the creator of the sentence, said, “This has gone wrong and needs to be changed.” It is also why Lord Thomas of Cwmgiedd, a former Lord Chief Justice of England and Wales, and not someone generally regarded as a soft touch in sentencing matters, said, “The only logical way to resolve this is to have a resentencing exercise.”

Police, Crime, Sentencing and Courts Bill

Debate between Sarah Champion and Robert Neill

Consideration of Lords amendments
Monday 28th February 2022 Commons Chamber

[Sir Robert Neill]

I am grateful for the chance to speak in the debate. This area of the Bill raises a number of important criminal justice matters, and I am grateful to the Minister for his very open approach to engaging with me and others around it. I have much sympathy with both him and the shadow Minister, in observing that there are sensible things that I hope we will broadly agree upon on most of this. I hope that I can make one or two observations on how we might take things forward once we have passed the legislation.

I have made my point in relation to the manslaughter of emergency workers, and I do not seek to repeat it, save to say that the Justice Committee has looked at the law of homicide and I think that we are in danger of missing an opportunity there. That does not mean that what is proposed is wrong, but we should be more ambitious than that, because many other common-law jurisdictions have reformed their law of manslaughter in a way that makes it more comprehensible to a jury. I looked with particular care at, for example, the judge’s directions in the PC Harper case and others. Even with the most impeccable directions it is not easy to follow now, against the factual background that we often have. We ought to be prepared to look at evidence from other common-law jurisdictions going forward.

There was an argument, of course, that the victim being an emergency worker is always an aggravating factor, but I understand the point about putting it on the statute book, given the particular value and weight that we place upon the service that these emergency workers have done. Similarly, I welcome the provision for aggravation in relation to assaults upon public service workers. I visited one of the local Co-op stores in my constituency and met some of my constituents who have been assaulted and threatened pretty appallingly by people. They do a great job for the public, and I think that we are right to give them a measure of protection too. I welcome the Government moving on that.

I will just turn to two other matters, one of which concerns IPP—imprisonment for public protection—sentences. The Minister knows that the Justice Committee is currently drawing up a report on this issue. We heard most compelling evidence on this situation, which Lord Brown, a former senior law Lord, described as an enduring blot on the British justice system. I paraphrase his words—that may not be exact—but that was the essence of it. I welcome what the Government are doing. It is a step in the right direction, but we need to ensure that those who are capable of being released safely are processed through the system much more quickly. That has been a blot on our system for too long. Resources have not been made available and all too often the provision to do the courses that were necessary for them to meet the trigger levels for release were not available. The danger was—we heard very powerful evidence on this from clinical psychologists and others—that sometimes the failure of the system to deal with the underlying issues which caused them to be subject to a IPP in the first place had now made them more dangerous to release, because they got to a degree of institutionalisation which makes it harder for them to be reformed. We need to be very alert to that.

[Sarah Champion]

I am very grateful to the hon. Gentleman for giving way and for starting the inquiry. One piece of written evidence received is from one of my constituents, who is suffering under an IPP with no hope of getting out and no understanding of why he is stuck there. I fully accept and agree with what he is saying. The impact that this is having on people’s mental health, the lifelong torture that these people are being put under, is just totally unacceptable. Of course one should serve one’s time, but I cannot even imagine what having an indefinite time ahead must do to someone’s psyche.

[Sir Robert Neill]

I am very grateful to the hon. Lady. We heard very compelling testimony on precisely those points. That is not to say that some people who are serving IPP sentences have not committed very serious offences and that some of them, because of their background, do not present a very real threat to the public. It may well be that in certain cases it will be a very long time before they are capable of being released, if ever, but there are many others who fall below that threshold who are trapped unfairly in the system, and who ought to be capable of being looked at afresh, processed and released safely into the community, but we have not yet managed to do that. The Government’s amendment holds the feet of the Parole Board to the fire on that, which is good so far as it goes.

The other point I want to make is that we heard compelling evidence from Lord Blunkett, the originator of the IPP sentences, who accepted that it had not worked out as he had intended. That was powerful and very humbling testimony. There was also very powerful testimony from Lord Thomas of Cwmgiedd, the former Lord Chief Justice, who has taken up this cause. He made the point that what we are doing so far is helpful. Improving the ability of people to access courses and gain the threshold for release is helpful and that is what the Government are, through their amendment, seeking to do. The need to review every case, rather than leaving them in limbo, is really important so we do not get drift.

However, there are two things we are not yet doing. We are not tackling the issue of needless recall. Recall is an important tool to have while we have a licence, but there is a real concern that in many cases the trigger for the recall bears no proportion to either the index offence which had caused the original sentence or the amount of time that might then be spent inside thereafter. In some cases, there was a real concern that recall was triggered for comparatively administrative breaches of the licence, rather than substantive ones linked to reoffending or increasing risk. I urge Ministers, when the Parole Board looks at each case as it will now be obliged to do under the legislation, to ensure that we do not have, frankly, risk-averse recalls. It is always a terrible balance to strike and I am very conscious of the burden on the Parole Board and probation officers in doing that, but we ought to ensure it is not done on a tick-box basis just to make sure we have protected ourselves against criticism—almost a back-covering exercise, I hate to say.

There is a temptation for that in the current arrangements, but we can do better than that and I hope we will. We ought to be assessing whether the breach suggests there is an ongoing risk of reoffending or a danger to the public. That ought to be the test.