Criminal Justice System: Families Bereaved by Public Disasters

Alex Chalk Excerpts

Thursday 16th September 2021 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

Occasionally—very occasionally—a debate takes place in this House that has such searing force that it lodges forever in the memory because of the way in which it measures up to the gravity of the subject matter. This is one such debate. I thank the hon. Member for Garston and Halewood (Maria Eagle) for securing it, but even more for giving a speech that was of such exceptional clarity and force that I hope not just her constituents, but those more widely in the great city of Liverpool, will read it and, even better, listen to it.

I also thank my right hon. Friend the Member for Maidenhead (Mrs May), to whom I shall return in a moment; the hon. Member for Bootle (Peter Dowd)—what a joy it is to see him in his place—my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill); the hon. Members for Liverpool, Wavertree (Paula Barker) and for Birkenhead (Mick Whitley); the hon. Member for Liverpool, West Derby (Ian Byrne), who also made an exceptional speech; and the hon. Members for Wirral West (Margaret Greenwood), for Liverpool, Riverside (Kim Johnson) and for Strangford (Jim Shannon).

I want to mention the former Prime Minister, my right hon. Friend the Member for Maidenhead, because it says an awful lot that, having acted as Home Secretary and as Prime Minister, she now acts as a Back Bencher. That can be encapsulated neatly, hon. Members may think, by the single word “duty”. She encapsulates duty, and Parliament is the richer for it.

The Government recognise the fundamental importance of placing the bereaved at the heart of any investigation that follows a major disaster. That, perhaps, is taken as read. We remain committed to ensuring that bereaved people are supported. That means that they are not just treated with the basic humanity and respect, which I am afraid was not the case in the past, but provided with—the hon. Member for Garston and Halewood used this word—agency, given a voice and thought of not as spectators but as participants. The way she put it—I think she was absolutely right—was that the bereaved cannot be considered a mere adjunct to proceedings. I cannot put it better than that.

Stepping back from inquests for a moment, I think that there is a new and welcome culture in that regard in criminal courts, as well as in inquests, in so far as I remember that when I began prosecuting as a barrister, witnesses and the bereaved were considered to be completely incidental. In fairness, because of reforms made when the Labour party was in power and while we have been in government, there has been a welcome trend to ensure that witnesses are spoken to by prosecuting barristers, shown round the court, given a copy of their statement and so on. However, we do need to go further.

Before I turn to the IPA proposals specifically, I want to take a moment to set out a bit of context. Just before I do that, however, let me reiterate that the apology that was made from this Dispatch Box by David Cameron for the double injustice that the hon. Lady referred to is as relevant today as it was then. It is worth spelling out what that double injustice was: the first injustice for the families was losing their loved ones, and the second was being traduced.

Let me turn to that context. In recent years, as the House has discussed, a forensic spotlight has been shone on the experience of the bereaved, and on bereaved people in general. First, there was the report by Dame Elish Angiolini into deaths and serious incidents in police custody. Then, most pertinent to today’s proceedings, there was the report by Bishop James Jones, commissioned by the former Prime Minister, to ensure that the pain and the suffering of the Hillsborough families would not be repeated. I want to take a moment just to focus a little on what was said in that report, a copy of which I have here and have had the opportunity to re-read.

In section 2 of the report, on the proper participation of bereaved families at inquests, Bishop James Jones talked about two things in particular: first, legal representation for bereaved families in appropriate cases; and, secondly, cultural change. Legal representation can be so important. It was, in fact, the former Home Secretary, my right hon. Friend the Member for Maidenhead, who ensured that in those second inquests the families did have legal representation. If one takes a moment to read what is in Bishop James Jones’s report, one can see that he included some of the testimony from the bereaved families. One said:

“The second inquest gave me my children back.”

The opportunity to lodge pen portraits, and to have those lawyers to speak to, was transformational in terms of providing the very agency to which the hon. Member for Garston and Halewood referred.

Bishop James Jones went on to talk about another matter as part of proper participation: cultural change. Here, I wish to pick up the point made by the former Home Secretary, my right hon. Friend the Member for Maidenhead. Bishop James Jones, in paragraph 2.95, said:

“I believe that ‘proper participation’ of bereaved families at an inquest is not just a question of funding, but also of cultural change.”

What he observed was the point that others have made:

“the highly adversarial behaviour of some lawyers employed by public bodies suggests that additional training may be required for solicitors and barristers working in the inquest system.”

He was not the first person to make that point. The Lord Chief Justice Lord Judge, in his judgment of 19 December 2012 which quashed the original inquests, described the original proceedings as having been “scarred” by having degenerated into “a kind of adversarial battle”. That is something we need to consider as well.

The current Chief Coroner, his honour Judge Teague QC, said publicly that it is “precisely the inquisitorial nature of the coroner’s investigation that is important to the centrality of the bereaved. Where proceedings take on a more adversarial character, the focus is liable to be diverted away from the bereaved where it properly belongs and channelled instead into some extraneous satellite dispute, with the risk that it ends up as yet another form of litigation.” I speak as a lawyer myself. I know that sometimes that can make the situation worse.

[Sir George Howarth]

Mr Deputy Speaker, I neglected to apologise earlier for not being here at the start of the debate. I was chairing Westminster Hall and it was therefore impossible for me to be here.

The Minister is making a very good point. I can remember an exchange between the right hon. Member for Maidenhead and myself when she was Home Secretary in which we talked about the stereotyping of people. Somewhere at the bottom of all this, the way in which the judiciary and some sections of the media dealt with it was all about a stereotype—a stereotype of football fans—which was convenient for them, but actually, in this case, bore no resemblance to the truth. Does he agree that stereotyping in any situation is wrong, but that in this one it has been absolutely appalling?

[Alex Chalk]

What an excellent point. The idea that all football fans are the same, behave the same way and think the same way is an absurdity. Perhaps we understand that better now than was the case 30 years ago.

To conclude the point about the context, what has happened since 2017 is a document that was referred to, but which I just want to take a moment to discuss—“A Guide to Coroner Services for Bereaved People”. I mention it because there is a welcome focus on bereaved people and it contains all the information that one would expect. I will not rehearse it in exhaustive detail, but I just want to pick up on one point made by the former Home Secretary and former Prime Minister, my right hon. Friend the Member for Maidenhead, which is that it is really important that there is never inequality of arms—in other words, in a situation where the state is potentially on trial or certainly under scrutiny, it acts towards the bereaved parties in a way that is defensive and unfair. So I was very pleased to see the annex to that document effectively has a code of conduct in those circumstances. It states:

“Where a Government department has interested person status to an inquest, the Government and the lawyers it instructs at inquests will adopt the following principles”.

I will not read them all out, but it includes, in paragraph 3:

“Communicate with the bereaved in a sensitive and empathetic way which acknowledges and respects their loss.”

Hon. Members would have thought that that is obvious, but it bears emphasis. The annex also includes:

“Keep in mind that the bereaved should…Be at the heart of the inquest process…Feel confident that the inquest will get to the facts of what happened…Feel properly involved throughout and listened to.”

That is part of a new code of conduct and it is absolutely right.

I want to make a final point in focusing on there not being a “closed door of the public sector” , which is the phrase that my right hon. Friend the former Prime Minister used. The Bar Standards Board published, I think as recently as this week, resources for those practising in the coroners’ courts, which includes instructions to:

“Adapt your style of communication and engagement to the unique purpose of inquests”—

and so on. That effectively says to representatives, “Remember bereaved people. They are not simply observers in this. They are participants. They are vulnerable people. They deserve to be treated with respect.”

Finally on context before I turn to the IPA, there have been very important changes made to the exceptional case funding scheme. I know that there are a lot of people in the House who greatly value legal aid, and we certainly do. The Government recognise that although legal aid is generally not available for inquests—by the way, that is as it should be, because the inquest is essentially a fact-finding process—there are some circumstances where legal representation may be required for bereaved families, as the former Prime Minister noted in respect of the second inquests, and that is provided through the ECF scheme.

We believe that where there should be legal aid for bereaved families, access to it should be as simple and easy as possible. That is why we have reviewed this process as part of our legal aid means test review. Following that work, I am delighted that we have made a commitment, in the Government’s response to the Justice Committee’s report of its inquiry into the coroner service, that ECF applications for representation at inquests will no longer be means-tested. That is a very important development. It will broaden the scope and access to legal advice and support.

Let me turn to the IPA and the Bill that the hon. Member for Garston and Halewood prepared, which I have read. As the House knows, in 2018, the Government consulted on proposals to establish an IPA, and the consultation looked at a range of issues about how best to support those bereaved following a public disaster. It asked a number of challenging questions because, as always, we know in this House that the devil is in the detail. We need to focus on issues such as: how exactly an IPA should interact with investigatory bodies, how one avoids duplication, whether the IPA should be involved only where fatalities occur, whether it ought to have a wider remit, and so on.

It is right to say that there was a mixed reaction from those who provided responses, including on the circumstances in which such an appointment should be triggered. There was also the issue of the name. As the consultation document noted, the Government do not see an IPA as providing legal advice and representation—of course not—and it is not an advocate in that sense. It also noted that such an IPA may be supporting a

“diverse group of people whose views may differ, perhaps strongly”.

Just as the right hon. Member for Knowsley (Sir George Howarth) made the point that it is absurd to put all football fans in one category, it is also very dangerous to put all the bereaved in one category, and we must be mindful of that. There was, however, more agreement on the importance of the IPA dovetailing with other support already provided. Plainly on that latter point, it will be important to consider the new and, we would suggest, significantly improved landscape, in terms of the culture and support that I referred to.

Since that consultation, there have been a number of significant events, such as a new Government, a general election and a pandemic, but perhaps most importantly, there has been a criminal trial, which has been referred to. Right hon. and hon. Members will be aware that that does mean that there are necessarily some things that cannot properly be discussed for fear of prejudicing, but that is now behind us, and I am pleased to announce today that we will be responding to the 2018 review by the end of this year, and I expect it to be rather earlier than that.

Quite apart from that, the Government are committed to continuing their engagement with the families bereaved by the Hillsborough disaster. Indeed, we have done so earlier in the summer and will continue to do so. It is critical that the lessons that can be learned from their awful experience are not lost. To that end, the Home Office has been working closely with its partners in the relevant Departments and organisations, and is now engaging with the Hillsborough families before publishing the Government’s overarching response.

The former Prime Minister made the point that we must make sure that other types of inquiry do not fall within the loophole that has been observed in criminal cases such as this. If an inquiry is not set up under the auspices of the Inquiries Act 2005, we need to ensure that we do not have a situation in which people can apparently avoid the consequences of their actions. We are considering very carefully a report from the Law Commission, which, as Members will know, is there to look at lacunae in the law and try to improve it. The commission came up with some recommendations in December last year, considering potential offences of corruption in public office and breach of duty in public office. Those are two potential offences that we are looking at with great care.

Ensuring that the bereaved are still at the heart of the investigatory process that follows a major disaster remains fundamentally important, and important steps have been taken. However, we are going to go further and, as we do so, we will continue to welcome the interest and, yes, the challenge—the proper challenge—from people standing up for their constituents, standing up for their city and standing up for accountability. I thank Members on both sides of the House for some measured, powerful and principled contributions today.

Information Disclosure: Pre-trial Abuse of Process Hearings

Alex Chalk Excerpts

Wednesday 22nd May 2019 Westminster Hall

[Dame Cheryl Gillan]

In the context of the debate, the hon. Gentleman makes a very valid point.

My constituent, Mr Perry, was heavily involved in the case of Caldicott School, which was heard in Aylesbury Crown court. As a pupil there in the ’60s, he and many other boys suffered very considerable and grave child abuse that has been the subject of criminal proceedings. The Minister may recall that in that case, the defendant, former headmaster Mr Wright, was eventually tried and convicted on 17 December 2013, and was sentenced to eight years imprisonment on 6 February 2014.

I say “eventually”, because there were two indictments brought in this case. The first was in 2003 and the second in 2012—tried in May and June 2013 and re-tried in November 2013. Of the two indictments, only the second proceeded to trial. The first was stayed by an order made by his honour Judge Connor, following the application of the defendant and his legal team, at a non-evidential pre-trial abuse of process hearing in Aylesbury Crown court on 26 September 2003.

In criminal proceedings, an order to stay an indictment results in the termination of that indictment. The counts that related to the extensive abuse suffered at Caldicott School by my constituent, as well as by four other former pupils, were contained in the first indictment, which was stayed. That meant that the history of abuse suffered at the school by my constituent and the other former pupils was never heard in open court. Not unnaturally, my constituent and the other former pupils were deeply unhappy with that outcome.

My constituent was even more unhappy about that negative outcome because it later emerged that the court had been gravely misled by the failure of the defence, which applied for the stay, to disclose relevant information to the court. With that information, his honour Judge Connor might not have considered the stay of the indictment justified. My constituent tells me that all the details of that were set out in correspondence with the Crown Prosecution Service at the time and copied to the office of the Attorney General.

It emerged in particular that before the hearing in September 2003, the defence solicitors, Blaser Mills, had engaged in private correspondence with the school on the subject of the availability of the school pupil records to the defence. Had that correspondence been disclosed to the court, it could have assisted the prosecution in opposing the application for the stay and, in all probability, would have undermined the grounds of the application to stay the proceedings on the indictment. However, neither the judge nor the prosecuting counsel ever saw the correspondence because it was never produced in open court, even though, according to the transcript of the proceedings, the counsel for the defendant, A. J. Bright QC, had it with him in court and was aware of its contents.

The contents of the hidden correspondence only became known publicly five years later, when in November 2008, the school released it into the public domain. It then became apparent to everyone involved in those proceedings how the non-disclosure meant that the court had been misled and, in effect, deceived into making the order for the stay of the original indictment. That situation was bad enough, but according to my constituent, what followed was arguably worse still.

With the trial on the second indictment looming, my constituent and his co-complainants, who had resigned themselves to the impossibility of their cases ever being heard in open court, were naturally concerned about the position of the other five former pupils whose abuse at Caldicott School was the subject of the second indictment. Their concerns grew when it became known that the defence intended to argue that the second indictment should be stayed on the same grounds as had applied to the first indictment. Accordingly, they repeatedly pressed the CPS to ensure that those submissions made to the judge and accepted by him in the September 2003 abuse of process hearing should be formally corrected to the court.

Their argument was that those submissions, which the defence already knew to be false at the 2003 hearing, were now known to be wrong by all parties and the public at large following the release into the public domain of the correspondence between Caldicott School and the defence solicitors, Blaser Mills. Formal correction of those false submissions was needed to prevent the possibility of the court being misled in the same way that it had been in 2003.

Attention was drawn to the explicit wording of both the Solicitors Regulation Authority handbook and the Bar Standards Board handbook—I have made the relevant sections of both available to the Minister—and to the professional obligation resting on all solicitors and counsel, as officers of the court, to correct submissions of fact made to the court once they are known to be erroneous, to prevent the court from being misled further. It was noted that no one, not even those responsible for making the wrongful submissions in the first place, has been heard to deny that false submissions had been made at the September 2003 hearing or that the effect of that was that the court was misled and proceeded to rule on the basis of false information.

To my constituent’s complete and abiding astonishment, the CPS did absolutely nothing. While not disagreeing that the defence had acted improperly by telling the judge that the pupil records could not be obtained from the school, or even tacitly accepting that the court had been misled by that, it took no action at all. However, not only were the records available but, in the hidden correspondence that the judge never saw, the defence had actually relinquished its request to be given them.

In addition, the Solicitors Regulation Authority and the Bar Standards Board took no action. Likewise, the Office of the Attorney General, from which at least my constituent might have expected some intervention, given the failure of the regulatory bodies to deal with the situation, did nothing. Only at a much later stage, when the defendant, following his conviction and sentence, applied for leave to appeal to the Court of Appeal, did the CPS finally agree with the complainants that, if leave to appeal conviction were granted and if the defence were to argue that the grounds of the imposition of the stay of the indictment in September 2003 were relevant to the appeal—in fact, it transpired that the defence did intend to argue exactly that—it would finally take action. It would require corrections to be made to the false submissions made in 2003 by counsel and solicitors for the defence in order to ensure that the Court of Appeal would not be misled in 2014. However, the appeal did not proceed and in the event, therefore, those corrections were never made.

At the request of my constituent, I have referred to what he considers—as I do—the embarrassing irregularities that unexpectedly and unusually came to light in the Caldicott School case, and those have a public profile. I have been led to believe, however, that similar problems were experienced in a number of other cases of lesser profile. My constituent has generously offered to provide the Minister with the details, if she so wishes.

It is too late now for the complainants in the Caldicott School case to be accorded the simple justice of the correction of known false submissions that were made to the court, that derailed the first indictment and that they believe denied them justice in 2003.

[Alex Chalk (Cheltenham) (Con)]

Will my right hon. Friend give way?

[Dame Cheryl Gillan]

I would like to make progress.

The abiding concern of those complainants, however, is that to their knowledge nothing has been done to prevent the distressing situation in which they found themselves recurring in other cases, concerning other abused children. The men involved feel rightly aggrieved about the wrongfulness of the Law Society and the Bar, and their respective regulators, holding out to the public the existence of certain published professional standards intended for the protection of the public, while at the same time appearing in this case to have had no intention of taking any action at all, even when the published professional standards were found unarguably to have been breached. Throughout this case, those men have felt that they have been stonewalled. They have now lost faith in the so-called professional standards.

Such matters are the responsibility of the Office of the Attorney General. That can be seen clearly in the “Protocol between the Attorney General and the Prosecuting Departments”, at page 7, under the heading “4(d) Superintendence of casework”:

“The Attorney General’s responsibilities for superintendence and accountability to Parliament mean that he or she, acting in the wider public interest, needs occasionally to engage with a Director”—

the Director of Public Prosecutions—

“about a case because it…has implications for prosecution or criminal justice policy or practice; and/or reveals some systemic issues for the framework of the law, or the operation of the criminal justice system.”

In the Minister’s response, I trust that she will provide the reassurance that is sought by my constituent, together with many of his former school colleagues, who were the subject of such appalling abuse at Caldicott School. I trust that she will now agree to include in her review the dual problem: first, non-disclosure of relevant facts and matters by the defence in criminal proceedings in situations in which a duty of disclosure rests on the defendant and his legal team; and, secondly, the apparent impossibility my constituent faced in attempting to procure corrections of the records of the court to solicitors and counsel, and the refusal of the Solicitors Regulation Authority and the Bar Standards Board to assist him in any way.

I look forward to hearing the Minister’s comments on those failures to disclose and on the misleading of the court consequent to the erroneous submissions made to it. The formal confirmation of the Minister is needed to reassure my constituent that solicitors and counsel are professionally obligated to make such corrections as soon as possible, and that in future, where necessary, robust and firm action will be taken by the Solicitors Regulation Authority and the Bar Standards Board in order to prevent the possibility of any court being misled in that way in the future.

I hope that the Minister, in responding, will bear in mind that I have known my constituent, Mr Perry, for 20 years. I have been dealing with his case and other matters pertaining to him for a long time. He is a man of great honour and integrity, and he has come forward to speak out in public about some horrendous abuse he suffered in childhood, thereby hoping to prevent something similar happening to other children in the future. This is just part of that pattern. I hope that the Minister will give a positive response in this debate.

[The Solicitor General (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Mr Robertson.

I thank my right hon. Friend the Member for Chesham and Amersham (Dame Cheryl Gillan) for raising these important issues. I acknowledge the hurt and anger of her constituent, and how he feels as a result of what happened to him at school many years ago. Sexual abuse of children by those in positions of authority or power who abuse their position of trust is a devastating crime.

I cannot imagine what Mr Perry has been through, but I commend him—as my right hon. Friend has done —for his courage in continuing to speak out about his experiences so as to contribute to the debate on how we improve the criminal justice system for victims. I also understand what she says about her relationship with him, and I am pleased that he has been able to contribute to improvements and to the future of those who have suffered as he has. I am pleased that we have the opportunity today to discuss the concerns expressed by my right hon. Friend about disclosure of information in pre-trial abuse of process hearings.

My right hon. Friend the Member for Chesham and Amersham spoke about the broader issues in relation to disclosure. Like her, we are concerned about the broad issue. It is imperative that disclosure in a case is made properly. She correctly identified the fact that last year the Attorney General published a review of disclosure, and will be publishing further guidelines in due course.

My right hon. Friend referred in some detail to the case of her constituent, Mr Perry. As she knows, it is not appropriate for me as Solicitor General to comment on decisions made by members of the independent judiciary in the two prosecutions of Peter Wright. I understand, however, that the allegations made about the conduct of those representing Peter Wright during the original criminal proceedings in 2003 have been considered by the police, as she said, the Bar Standards Board and the Solicitors Regulation Authority. Those are the correct bodies to look at allegations of that nature.

Furthermore, in 2012, one of my predecessors as Solicitor General personally considered whether to bring contempt proceedings arising from what the judge was told in 2003, but he concluded that there was insufficient evidence to do so. I understand that the trial judge in the proceedings that led to Peter Wright’s conviction in 2013, as my right hon. Friend said, also considered the arguments that had been employed in the abuse of process application in 2003 but declined to lift the stay on proceedings.

I am not aware of any adverse findings made against any lawyers involved in the criminal proceedings arising out of the abuse at Caldicott School between 1959 and 1970. None of that is in any way designed to diminish the profound effect that those crimes must have had on Mr Perry’s life, or to detract from our commitment as Law Officers superintending the prosecuting departments to promote best practice in the care that victims of sexual abuse receive from the criminal justice system. However, the issues that Mr Perry continues to raise have not been ignored and have received serious consideration in the past.

As Members know, it is open to a defendant to argue that a prosecution is an abuse of process—for example, because of the effect of delay on the fairness of the trial—and that proceedings should therefore be stayed. That arises from the overriding duty on courts to promote justice and to prevent injustice. In these cases, the burden lies on the defendant to prove on the balance of probabilities that there has been an abuse and that a fair trial is no longer possible.

There is clear authority from the Court of Appeal that there is a strong public interest in the prosecution of crime, and that ordering a stay of proceedings is a remedy of last resort, even where there has been significant delay in bringing proceedings. As the hon. Member for Strangford (Jim Shannon) pointed out, the bar for a stay is very high. Even when a judge imposes a stay of proceedings, the prosecution can apply to lift the stay in future. As my right hon. Friend the Member for Chesham and Amersham mentioned, such an application was made in Mr Perry’s case in 2012. Although the judge declined the prosecution application to lift the stay on the 2003 proceedings, she allowed the fresh allegations against Peter Wright to be tried by a jury, and also allowed details of the abuse that Mr Perry suffered to be admitted as bad character evidence during the trial. As a result, the jury found Peter Wright guilty of abusing five pupils during the 1960s and he was sentenced to eight years’ imprisonment.

My right hon. Friend makes some important observations about disclosure in the criminal justice system. Hon. Members will be aware that the Attorney General recently carried out a review of disclosure and made recommendations to improve performance across the criminal justice system. In our criminal justice system there is a statutory duty on prosecutors to disclose to the defence any material or information that may assist the defence or undermine the prosecution case. That duty applies to abuse of process hearings as well as trials. There is also a residual duty on the prosecution at common law to disclose any information that would assist the accused in the preparation of the defence case. That duty applies from the outset in criminal proceedings and requires the disclosure of material that might enable an accused to make an early application to stay the proceedings as an abuse of process.

[Alex Chalk]

The Minister is quite properly setting out the duties on the prosecution entirely accurately and fairly. Does she agree that there is a duty, however, on all parties to ensure that what they submit does not in any way mislead the court, and that applies to the defence just as it does to the Crown?

[The Solicitor General]

My hon. Friend makes an important point that I will come on to. It is absolutely right that counsel or solicitor must not mislead the court, as officers of the court with a primary duty to the court and not to their client, but the disclosure of evidence is a different obligation on the defence. There is no corresponding legal duty on the defence to disclose information that is harmful to its case, because that is consistent with the fundamental principle that it is for the prosecution to prove its case and not for a defendant to prove their innocence.

As my right hon. Friend the Member for Chesham and Amersham rightly identified, there is an important duty on counsel and barristers; they have a professional code of conduct that includes the requirement to act ethically and with integrity at all times. That includes a prohibition on knowingly or recklessly misleading anyone, including a court, and a positive duty to behave in a way that maintains public trust and confidence in the proper administration of justice. My right hon. Friend mentioned that her constituent may have details of other cases where a court has been misled; I strongly encourage her to share those details with the CPS and the professional bodies responsible for barristers and solicitors.

United Kingdom’s Withdrawal from the European Union

Alex Chalk Excerpts

Friday 29th March 2019 Commons Chamber

[Nick Thomas-Symonds]

Let me finish this section.

The Prime Minister went on:

“The EU has been clear that they come as a package. Bad faith by either side in negotiating the legal instruments that will deliver the future relationship laid out in the political declaration would be a breach of their legal obligations under the withdrawal agreement.”—[Official Report, 14 January 2019; Vol. 652, c. 826.]

How many times have I heard the Attorney General argue from the Dispatch Box, when we have spoken about the backstop and the future relationship, about the importance of reasonable endeavours and good faith in ensuring that we secure a future trade agreement in good time? Yet the Government have now decided to remove from our consideration in the motion today one of the documents against which we can judge bad faith.

[Alex Chalk (Cheltenham) (Con)]

The fact is that the withdrawal agreement would be accepted by the European Union—that is the first point. The second point is that it sorts out the implementation period and the money and, crucially, that it guarantees citizens’ rights for my constituents, EU nationals and Brits abroad. Which of those factors does the hon. Gentleman actually disagree with? The answer is none.

[Hon. Members]

Answer!

Withdrawal Agreement: Legal Position

Alex Chalk Excerpts

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

I am afraid I cannot disclose the latter without committing the very sin that I am trying to prevent. Does the hon. Gentleman ask me whether I regret that? Let me be frank: yes, I do. We should have opposed the motion—of course we should have. We should have voted against it. All I can say is that if we had lost on a contested vote, we would be in exactly the same position as we are now in.

[Alex Chalk (Cheltenham) (Con)]

If we found ourselves in the backstop, we might seek to argue that the European Union had not acted in good faith and had not used best endeavours. Who would appoint the body that would adjudicate on that dispute, and how could we be satisfied that we were going to get a fair hearing?

[The Attorney General]

The governance provisions, set out between articles 167 and 181, provide for 25 independent arbitrators, who are not members of any member state of the European Union or belong to the United Kingdom, to be appointed by both sides as a panel from which an arbitral tribunal can be selected. Ten are to be proposed by the United Kingdom and 10 by the European Union. Five chairmen are then to be proposed by each. If the parties are unable to agree, when a tribunal is formed two are appointed by the UK and two are appointed by the EU. Those four then choose the chairman. If they are unable to decide on a chairman, the permanent court of arbitration will appoint by lot.

Belhaj and Boudchar: Litigation Update

Alex Chalk Excerpts

Thursday 10th May 2018 Commons Chamber

[The Attorney General]

I entirely agree with my hon. Friend. It is important that we continue to strike that balance, and where we get it wrong, we say so.

[Alex Chalk (Cheltenham) (Con)]

I am very grateful to the Attorney General for his dignified and direct statement. It is absolutely right in these very troubling circumstances that the Government do not seek to cavil or equivocate. On two occasions in his statement, he referred to the unacceptable practices of international partners. Can he say anything more about what can be done to ensure that those do not persist in the future, and that if they do, the British Government play no part in them?

[The Attorney General]

I am grateful to my hon. Friend. He will recognise that some of the changes that have been made since this incident have, I hope, encouraged us to ask better questions and to ask them more persistently. I made reference to the consolidated guidance, of which he will know, and in relation to such documents, we make it very clear that intelligence operatives should ask questions, before information is handed over, about what will be done with that information and what may then happen. Therefore, we do need to see better questions asked more repeatedly, and that, I believe, is one of the changes that is occurring.

European Union (Withdrawal) Bill

Alex Chalk Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Mr Leslie]

If that were the right way, the Government would have introduced a Bill to provide such certainty, instead of saying, “Mañana. Maybe at some point in the future we will try to close this loophole.” We have the Trade Bill now, as well as the Nuclear Safeguards Bill and a customs Bill. We are supposed to have an immigration Bill at some point, although I suspect that the Government are having a few difficulties figuring out how to bring it forward. These Bills are supposed to be the fundamental underpinnings of the copy-and-paste process that the Government are pursuing. They are supposed to be taking aspects of European Union rules and regulations and ensuring that they will still be here after March 2019, but no Bill relating to the charter of fundamental rights has been brought forward.

[Alex Chalk (Cheltenham) (Con)]

The hon. Gentleman is right about the importance of some of these rights, but may I suggest that incorporating the charter would create complete legal confusion? Under the convention, there is purely a power to make a declaration of incompatibility. Under the charter, however, UK law can actually be trumped. The extraordinary situation could arise in which, if a prohibition against slavery were breached, the courts could merely say that it was incompatible, but if there were a breach relating to data protection, UK law could be trumped. That would create confusion and chaos, which is not what we need in this country.

[Mr Leslie]

Personally, I believe that Parliament does and should value the provisions of the charter of fundamental human rights. I trust our legal system to be able to reconcile textual difficulties between different Acts. I would rather operate on the precautionary principle and have those rights covered within our law than see the protections that are offered to our constituents expunged at this point, only to unwittingly discover later that the rights we used to have under the charter are no longer provided for because the Government of the day did not want to transpose them.

While talking about rights, but in a completely different context, I want to talk about new clause 7, which has been tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). It relates to animal sentience and the welfare of animals—not human rights but animal rights. If there is one issue that can be guaranteed to fill all our inboxes, it is the protection of animal rights. Our constituents really do care about this issue. The Government have already got into a tremendous pickle over this, and it would have been funny if it were not so tragic to see the Secretary of State for the Environment scrabbling around trying to pretend that, all of a sudden, the Government really cared about these matters.

Brexit will affect this area quite considerably. On the International Trade Committee, we heard evidence from various animal rights organisations and others involved in the agricultural trade sector, including the National Farmers Union and those involved with what are known as the sanitary and phytosanitary regulations relating to the import and export of animal products. There is a reason that the Americans dip their chickens in chlorine, Mr Speaker. I do not know whether you have had chlorinated chicken recently. I am not that fussy myself, but perhaps we will be invited to a tasting session at the new American embassy at some point. The reason they dip their chickens in chlorine is that the welfare standards that cover their abattoirs and the way in which their animals are looked after before slaughter are far worse than ours. Before the animals reach the consumer, they need to be cleaned up in a way that is not necessary here in the UK because we have higher welfare standards, not least by virtue of our membership of the European Union. Across all the European Union, we take a precautionary principle when it comes to this kind of regulation. We do not have to dip our chickens in chlorine, because they are already subject to certain health and safety standards.

Animal welfare issues matter in relation to trade as well. I find it perplexing when Conservative Members say that our salvation will be a trade deal with President Trump and the United States. We all know that the primary goal of the United States will be to have a treaty in respect of agriculture. If we do such a deal, the Americans will want to sell us animal products that have been produced under lower welfare and regulatory standards. That will be the deal they will seek. However, if the Secretary of State for the Environment says that we are going to have exactly the same regulatory standards as we have now, he will effectively be telling the Americans that there can be no trade deal. That would be the outcome—[Interruption.] It would certainly be a very big sticking point.

Oral Answers to Questions

Alex Chalk Excerpts

Thursday 29th June 2017 Commons Chamber

[The Attorney General]

I applaud all those who work to promote human rights, whether in a court or elsewhere, but it is important to understand that the European convention on human rights itself permits derogation in certain circumstances. The hon. Gentleman was, I think, a member of a Government who sought to do that in the wake of the 9/11 attacks. It is certainly within the hierarchy and system of the European Court of Human Rights that that should be allowed, and we need to ensure that the balance I described earlier is maintained.

[Alex Chalk (Cheltenham) (Con)]

I draw the House’s attention to my entry in the Register of Members’ Financial Interests. The right to the peaceful enjoyment of property is a valuable safeguard in the convention. Does the Attorney General agree that the Serious Fraud Office has a strong and growing reputation for upholding that right, and will he clarify his plans for the future?

[The Attorney General]

I certainly think that the Serious Fraud Office has an important role to play in doing what it can to deal with economic crime, as of course do other agencies. As for the future, we are looking carefully at how we can improve performance in tackling economic crime across the whole range of organisations that do that work.

Serious Fraud Office

Alex Chalk Excerpts

Tuesday 7th February 2017 Westminster Hall

[Stephen Timms (East Ham) (Lab)]

I beg to move,

That this House has considered funding of the Serious Fraud Office.

It is a pleasure to serve under your chairmanship, Mr Owen. The Serious Fraud Office owes its origins to the work of the fraud trials committee, set up under the chairmanship of Lord Roskill in 1983 after a series of failures to secure convictions in relation to high-profile City of London scandals. The SFO began its work in 1988.

I know from previous discussions on the SFO in the House that the Minister values its work very highly. He said in one debate that the Roskill model on which the SFO operates is

“essential when it comes to this type of offending. It works and it must continue to be supported.”

He also said:

“It is important that we give our full-throated support to the work of the SFO”.—[Official Report, 2 July 2015; Vol. 606, c. 1610.]

I very much agree with the view that he expressed and I hope it will be shared by other hon. Members contributing to this important debate. It was in the spirit of wanting the SFO to do the best possible job that I applied for this debate on how it is funded. However, it is worth just revisiting at the outset the case for the SFO, because the model has had its detractors, including the current Prime Minister when she was Home Secretary, so the case needs to continue to be made and the arguments need to be spelt out.

The SFO is unique among UK law enforcement agencies. Under the model recommended by Lord Roskill at the conclusion of the fraud trials committee in 1985, it is both investigator and prosecutor of the cases that it handles. A string of failed City of London fraud cases undermined public trust and inspired the recommendation and decision to break with the usual division between those two roles that we see in most of the rest of the English and Welsh legal system. I want to return to the issue of public confidence that justice will be done in fraud cases when arguing that the Government need to look again at the mechanisms by which the SFO is funded.

Legal cases are often complex, but the cases that the SFO deals with are frequently an order of magnitude more complex than others. They involve thousands of documents and a huge amount of complex financial data. The SFO requires multidisciplinary teams working under its case controllers: they are made up of lawyers, investigators, forensic accountants and so on. Those multidisciplinary teams ensure that legal scrutiny is applied to investigations from their commencement.

The Roskill model also ensures that there is no hand-off point, when specialist knowledge and insight developed by investigators and accountants who have been studying a case may be lost as it is transferred to the barristers. That does not happen in the SFO model. Institutional memory and continuity are very important in the prosecution of complex fraud cases, and I am concerned that that important virtue of the Roskill model might be being undermined by the way the SFO is funded at the moment.

The Prime Minister, when she was Home Secretary, tried in 2011 and again in 2014 to bring the SFO into the new National Crime Agency. The Financial Times reported on 5 October 2014 that she was

“to revive plans to abolish the UK’s main anti-fraud and corruption agency and bring it into her new FBI-style national crime force, according to officials familiar with the situation.”

I am glad to say that that move was resisted. The director of the SFO from 2012 to the present, David Green, QC, was clear in his statement that it would

“distract and destabilise the SFO in a really bad way at a time when”

it was “grappling with what” was

“probably its heaviest-ever workload and making real headway.”

He was not alone in making the case against abolition of the office. Bond, the umbrella organisation representing 370 international development organisations, which sees the impact of corporate corruption at the sharp end, with millions lost to public services and community wellbeing in developing countries, co-ordinated a letter to the then Prime Minister in 2015 from seven charity chief executives, in which they suggested three key tests for the Government on bribery and corruption. First, they stated:

“Investigation and prosecution teams should be combined in the same agency.”

The Roskill model achieves that requirement, and a number of observers think that moving the work into the NCA would probably end that beneficial arrangement. Secondly, the letter stated:

“Corruption must be a top priority for that agency, and not simply one amongst many.”

Thirdly, it stated:

“There must be specialist corruption teams”

in the agency.

The current arrangements for the make-up of the SFO meet those requirements, and as a result the UK is one among only four countries that are officially recognised as “active enforcers” of the OECD’s anti-bribery convention. I hope that maintaining that status will be an important concern of the Government and the Minister. Moving the anti-corruption role of the SFO into another agency would undermine UK leadership in this area. I agree with Transparency International UK, which says that it

“strongly opposes the abolition of the SFO unless an alternative is proposed which is demonstrably better. We believe that is highly unlikely given the SFO’s recent success, the instability and damage to caseload that would be caused by abolition, the detailed analysis that went into the creation of the SFO, and the lack of expertise and track record in any other government agencies regarding prosecutions of corporate corruption.”

I therefore hope that the model will be maintained, but how well is the current SFO doing? It is quite difficult to assess its effectiveness. Its case load is deliberately small: under David Green, it has focused its attention, taking the most serious and complicated cases through to prosecution. However, we can say that over the four-year period, 2012-13 to 2015-16, it had a case conviction rate of 81%, although that goes up and down from year to year, and since then it has achieved some important successes, including the first individual prosecutions for LIBOR rigging, which are welcome, and the recent landmark deferred prosecution agreement with Rolls-Royce, which resulted in a fine of £671 million, which was equivalent to the company’s entire operating profits. The SFO is undoubtedly making an impact. The question is whether it is as effective as it could be and as we would all wish it to be.

[Alex Chalk (Cheltenham) (Con)]

I declare an interest as someone who has previously been appointed to the SFO’s “A” panel of counsel. Does the right hon. Gentleman agree that in looking at the SFO’s achievements, it is right to focus also on the sums recovered under the Proceeds of Crime Act 2002 through confiscation? Its track record on that is certainly better than that of equivalent agencies.

[Stephen Timms]

The hon. Gentleman is absolutely right. I certainly do not want to argue that the SFO has not been effective; there is good evidence that it has been. The question is whether it is as effective as it could and should be, and that is why I now want to come to the numbers and my concerns about the way it is funded. It receives its funding as a mix of core costs and what is termed “blockbuster” funding.

--- Later in debate ---

[Stephen Timms]

Yes, it inevitably does. We have seen a big shift over time away from core funding towards blockbuster funding. That inevitably means fewer permanent staff at the SFO and more temporary staff. That raises a serious concern about how the SFO is able to function. In 2008, core funding was £52 million. In 2015-16, the total budget was about the same, but core funding was only £34 million. For each of the last three complete financial years, the blockbuster funding element was large: £24 million in 2013-14, £24.5 million in the following year and £28 million in 2015-16. In 2015-16, the blockbuster funding was more than 80% on top of the core funding. The SFO’s total expenditure has been as much—perhaps rather more—in recent years as it was in 2008, before core funding started to be reduced as part of the Government’s efforts to cut public spending, but a big slice of the funding today is in the form of this one-off, exceptional Treasury grant. I am grateful to the hon. Gentleman for drawing attention to the fact that, as a result of that, a large proportion of those working at the SFO are temporary staff brought in for a particular case and then laid off when it is concluded.

I would be grateful for the Minister’s comments on whether that is an effective way to run an organisation as important as the SFO. Her Majesty’s Crown Prosecution Service inspectorate certainly thinks that it is not. In its view, the current model is not satisfactory, and I think it has an important point. In its 2016 report, it stated:

“The blockbuster funding model is not representing value for money and it prevents the SFO building future capability and capacity. Temporary and contract staff are often more expensive than permanent staff and managing surge capacity is a constant drain on Human Resources (HR) and other staff. Increasing core funding would provide the SFO with the ability to build capacity and capability in-house and lead to less reliance on blockbuster funding.”

That is the case that I want to press upon the Minister this morning. The evidence is on the inspectorate’s side. At the time of the inspection, 21% of SFO staff were temporary. As of March 2016, 106 of the 510 staff were there on an agency basis and another 35 were there on a fixed-term basis. That level of instability and impermanence would damage any major organisation.

[Alex Chalk]

The right hon. Gentleman is making a powerful and important speech; however, the real question is whether the surge that we have seen in demand, which has given rise to the need for blockbuster funding, is likely to be sustained. Can he shed any light on whether that is perceived to be a likely outcome?

[Stephen Timms]

It certainly has been sustained over a lengthy period, although I think I am right in saying that in the most recent year the funding sharply reduced. For me, that accentuates the problem, because once the funding is sharply reduced, a large number of people get sacked or their employment at the SFO ends and the expertise and experience they have built up is dissipated. It seems to me that we should aim to hang on to that expertise and build up the capacity and skills that the SFO can deploy for its future work.

I am not saying that the 106 people who were there on an agency basis in March 2016 were second-rate or anything like that. I am sure that they were talented people, doing good work. However, as temporary staff they are more expensive than permanent staff and the additional expense does not make sense when the blockbuster funding is consistently high over an extended period—not permanently, but consistently over a long period. Temporary staff will build up skills and expertise during their work with the SFO, which will then be lost as soon as their contracts expire and they leave. That raises concerns about an inability to ensure consistency across the entire duration of a case and build institutional knowledge in the longer term, which was precisely the aim of setting up the Roskill model in the first place 30 years or so ago. Surely we want the SFO to build up its expertise, and having so many people on temporary contracts makes that a great deal harder. At a time when the Government are, for very good reason, pushing for the public sector to spend less on expensive agency staff in areas such as education, Ministers can surely see that the same considerations apply—I suggest even more powerfully—to the SFO.

Managing the human resources implications of blockbuster funding makes it harder, as the inspectorate points out, for personnel staff to do the other things they ought to be doing. The SFO is the only one of the Law Officers’ departments with fewer than half of its staff positions held by women and it has less than half the proportion of disabled people working for it than the civil service does as a whole, at only 3.6% of employees. We know that delivering diversity requires focused human resources effort, but with such high levels of turnover and agency staff at the SFO, HR attention is perhaps inevitably turned elsewhere. That weakens the organisation.

I am sure that the Minister will argue in his response that the director of the SFO has spoken favourably about the blockbuster funding system in the past. To an extent, that is true. Last October, he told the Justice Committee in the evidence session that I referred to:

“There are pros and cons to it.”

The SFO’s submission to the Committee prior to the session stated:

“It is a workable mechanism which allows the SFO to respond flexibly to a demand-led workload.”

That may well be the case, but “workable” is not the same as “optimal”.

I am not arguing that we should not have any blockbuster funding. I entirely accept that such a mechanism can enable the department to cope with fluctuations and ensure that it does not have to turn down a case on the basis of cost, but we have funded getting on for half the SFO’s budget for the last three or four financial years in that way. As a result, it has not been possible to build the expert, permanent workforce that I think we all want to see, so the balance must surely be wrong. Judging from the director’s comments to the Justice Committee, that appears to be his view as well.

There is another important issue. In requiring the SFO to ask the Treasury for additional funding on a case-by-case basis through a pretty opaque process, it is impossible to demonstrate independence about decisions on which cases are prosecuted. I do not want to make too much of that point, but being seen to be independent is important. Making the SFO dependent, case by case, on a Treasury sign-off does not provide that all-important assurance. That problem could be greatly reduced by making core funding a bigger proportion of the overall SFO budget. Another risk presented by the level of blockbuster funding—other Members have raised this matter in the House—is that justice may be delayed if an unnecessary layer of bureaucratic delay is added to the office’s work by its having to apply for blockbuster funding.

The model under which the SFO operates has established the UK as a global leader in tackling corruption, fraud and bribery. That is an important achievement, which we all want to maintain, and I commend the director of the SFO for his progress in focusing the organisation on its core purpose. The recent inspectorate report, however, was right to point out that over-reliance on blockbuster funding makes the SFO less effective than it should be. Will the Minister therefore commit this morning to looking again at the proportion of the SFO’s funding that comes from the blockbuster mechanism? Will he also look again at whether the SFO could do a better job, building up and maintaining better expertise more effectively in the long term, with more permanent staff, if a larger proportion of its funding was in its core budget?

[Sir Edward Garnier (Harborough) (Con)]

I congratulate the right hon. Member for East Ham (Stephen Timms) on initiating the debate. I listened to him with great care and gratitude, because he spoke as a critical friend of the Serious Fraud Office. As he gently pointed out, when the current Prime Minister was Home Secretary, she was perhaps not a friend, even if she was critical, of the SFO. Possibly—who knows?—one reason I remained a Law Officer for two and a half years, but no longer, was because I fell out with the Home Secretary over the independence of the Serious Fraud Office.

There is a misunderstanding among politicians about the Roskill model and its value. However, before I go on further, I declare an interest—as must be obvious—in the SFO and all that it does. I also declare an interest in that, like my hon. Friend the Member for Cheltenham (Alex Chalk), the SFO instructs me from time to time as a member of the private Bar. One of the most recent cases that I have been instructed in was that of Rolls-Royce, which the right hon. Member for East Ham spoke about. Although I do not want to talk too much about my wonderful case load, I want to use the case of Rolls-Royce to illustrate the successful way in which the organisation deals with criminal activity at the corporate and most complex level.

It is a given, certainly among those who know anything about the Serious Fraud Office, that the Roskill model of having a joint investigating and prosecuting system in the organisation works. Although plenty of people criticise the SFO—as the right hon. Gentleman said fairly, it is not beyond criticism, and there are things to be said about the blockbuster system and so forth—it is remarkably successful, given the limited resources under which it has to operate.

When I was shadow Attorney General in the lead-up to the 2010 election, I made quite a study of the way in which the Serious Fraud Office operated, not least because it was one of the most important aspects of our prosecuting system that came under the supervision of the Attorney General and the Solicitor General. When I got into office in 2010, it was clear that the comprehensive spending review that the new Government introduced would have a pretty direct and possibly damaging effect on the SFO’s ability to carry out its important work. That persuaded me that we needed to find other pragmatic ways of allowing the SFO to get on and catch villains, both human and corporate. I was particularly concerned that we were underperforming on—that we were inhibiting—the prosecution and conviction of corporate crime.

Of course we were, and still are, beset by the Victorian identification principle: in order for a company to be convicted of a crime, a directing mind of sufficient seniority has to be able to be identified in order to fix criminal liability on the company. That was fine in the 1860s, 1870s or the 1880s, when companies had a board of two or three and operated within a town or a county—or possibly even within the country as a whole—but the vast international conglomerates that there are now, with offices in several jurisdictions and boards, sub-boards, national and international boards, make it extremely difficult for the Serious Fraud Office to attach criminal liability for a crime to the company. Individual financial directors, country directors, or country managing directors can be prosecuted, as the SFO has—we have seen that happen in a number of the cases that the right hon. Gentleman referred to—but that has proved difficult when dealing with international companies that misconduct themselves.

That is why—this is a slight diversion, but an important one—this House and the Government should develop the “failure to prevent” model. Under section 7 of the Bribery Act 2010, it is a criminal offence for a company to fail to prevent bribery by one of its associated people or bodies. The first deferred prosecution agreement—in which I appeared, as it happened—dealt with the failure of a bank to prevent bribery by one, or a number, of its staff in Dar es Salaam in Tanzania. Under the terms of the deferred prosecution agreement, that brought in from the errant bank about US$25 million in costs and penalties.

As the right hon. Gentleman correctly identified, the Rolls-Royce case brought in something in excess of half a billion pounds sterling, which will be paid by that company over the next five years. Beyond the penalty, it will have to pay interest on the delayed payment. More importantly, as far as funding the Serious Fraud Office is concerned, part of the deferred prosecution agreement is that the respondent company pays the SFO’s costs, which, at the time of the announcement of the agreement before the President of the Queen’s Bench division, Sir Brian Leveson, 10 or so days ago, amounted to about £13 million. Sadly, that £13 million did not go into the Edward Garnier special holiday fund; it went into reimbursing the Serious Fraud Office for what was essentially the biggest investigation that it had ever done since its inception. That investigation required huge international co-operation with the United States Department of Justice and with investigators and prosecutors in a number of other jurisdictions—the criminal allegations against Rolls-Royce covered the company’s activities within seven jurisdictions.

While the Rolls-Royce matter was being brought to an end a fortnight or so ago in this country, it was also being brought to an end in the United States and in Brazil, where the company had to pay the authorities about $176 million and $25 million respectively. That illustrates how the Serious Fraud Office can be pragmatic, efficient and effective now that it has the deferred prosecution agreement model and can use its money wisely to bring international companies to book for international criminal conduct.

[Alex Chalk]

Now that the SFO has more tools at its disposal, including the DPA model, does my right hon. and learned Friend believe that its workload will increase? Does that make the case for a larger underlying capacity, as the right hon. Member for East Ham indicated?

[Sir Edward Garnier]

Yes. The DPA system is a new tool—there have been three DPA cases—but if the Serious Fraud Office is to carry out its international investigative work at the highest and most complex level, it will need a bigger budget. That was clear to me when I became Solicitor General in 2010 and it remains clear to me now. In 2010, as I understood it, the revenue budget was about £40 million and was set to go down over the course of the Parliament, under the comprehensive spending review, to something like £29 million.

When I went to the United States to discuss international corporate crime and learn from American prosecutors about the system for prosecuting corporate crime there, one of the federal prosecutors in Manhattan asked me how much our budget was. I said, “It’s about £40 million, going down to just under £30 million.” He laughed and said, “Is that just for one office?” I said, “No, it’s for the entire jurisdiction: England and Wales, and Northern Ireland”—unusually for a prosecuting agency in this country, the Serious Fraud Office covers England, Wales and Northern Ireland, but not Scotland. The American prosecutor found it unbelievable that one of the centres of the financial world had a serious fraud office that ran on that amount of money. He went on to joke that he spent more than that on flowers at home; I do not think that that was quite true, but I would not be at all surprised if he lived pretty well. Good luck to him.

What I want the House to understand is that there is no perfect way to sort this out. The right hon. Member for East Ham is entirely right to say that there are uncertainties and, to some extent, an absence of transparency—or at least prospective transparency—in how the blockbuster system works. There is retrospective transparency, because the Justice Committee, Parliament, the National Audit Office and non-governmental organisations such as Transparency International—to pick one organisation at random—can delve into the SFO’s financial workings. I accept that although the blockbuster system works up to a point, it is not ideal, but the best is often the enemy of the good; I would rather the SFO could apply to the Treasury for blockbuster funding than its being constantly in danger of having its budget slashed and slashed again. The SFO is unusual and not very well known and therefore not terribly politically popular. Obviously its work is often private, because if its investigations are not conducted in privacy, the villains get away—I take the right hon. Gentleman’s point about that.

To assist the SFO in its complicated and difficult work, we need to think hard about how to nail corporate misconduct. Will we be brave enough to move to the American system of vicarious corporate liability, so that when an employee commits in the course of their work a crime that has a benefit for their company, the company should be liable in criminal law—just as it would be in civil law for the negligence of one of its drivers, for instance? If not, we will have to extend the failure-to-prevent model. The Criminal Finances Bill that is going through the House at the moment will enact a failure-to-prevent tax offence; I have tabled some amendments that would extend the list of failure-to-prevent offences to a far wider collection of financial crimes. My amendments will not be agreed to, but Parliament needs to debate the issue. I look forward to co-operating with the right hon. Gentleman, who not only has experience as a Treasury Minister but can no doubt see the City of London across the road from his constituency office. I hope that the question of developing the criminal law to meet the increased sophistication with which business is done internationally will be cross-party and non-partisan.

On the right hon. Gentleman’s point about staff, I agree that any form of threat to any organisation from the promise or threat of change is distracting and destabilising. Now that the SFO is doing good work and building on its record of success with LIBOR, with the three deferred prosecution agreements and with the cases against Barclays bank, GSK and others, the one thing that it does not need is to be subjected to further interference. That would be destabilising and cause the employment equivalent of planning blight. Imagine a bright young lawyer in a City firm who thinks that it might be good to go and work for the Serious Fraud Office for a while. It would be, and it is, but if they know that the Government want to pull up the pot plant every 20 minutes and have a look at the roots, the SFO is not going to seem like a very stable place to go and work.

I want to see people from the private sector—the big City firms that have expertise in dealing with corporate crime, mergers and acquisitions and the highly complicated banking law that is sometimes involved—coming to work for the SFO for two or three years. I also want permanent members of the SFO staff to go into the City firms and other banking organisations, so that there is proper cross-fertilisation. What I do not want is for the current Whitehall fascination with sticking things with nice initials into great pots of alphabet soup to destroy David Green’s valuable work or distract him from it. I am proud to say that he is a personal friend of mine; he and his organisation have a proud record of demonstrating to the Government that it is worth every penny it gets and that it ought to get yet more money, so that it can catch more and more villains.

The reputation of our country is to a large extent built upon our financial services industry. Our corporations that sustain that industry—be they banks, be they insurance companies, be they whatever—and the people who work in it need to know that if they step beyond the line of honesty and acceptable behaviour, there is an investigating prosecuting authority that will not only come and get them but will make sure that they are convicted. That is what our constituents want. They want a vibrant financial services industry, but they also want an honest one, which attracts business, taxation and employment to our constituencies, whether they are in East Ham or Harborough.

Mr Owen, thank you for your patience. I hope that my hon. and learned Friend the Solicitor General can give me the reassurance that the SFO is safe from interference and distraction, and that we can look forward to another period of success, and well-funded success, for this most impressive organisation.

[Mark Field (Cities of London and Westminster) (Con)]

In congratulating the right hon. Member for East Ham (Stephen Timms) on securing this overdue debate on the workings of the Serious Fraud Office, I register my concern that the regular reliance of the SFO on special funding facilities from the Treasury lays it open to the charge that it lacks full and proper independence.

As we know, we live in financially straitened times for those agencies that depend on the public purse. Nevertheless, the sight of the SFO repeatedly having to go cap in hand to the Treasury for supplemental income opens up the Government to the potential accusation that they at least have the ability to close down what might be politically sensitive inquiries by the simple expedient of refusing the SFO funding.

I am not suggesting for one moment that the Government are behaving improperly. However, they must see that there is an inherent conflict of interest, which will persist unless and until the SFO’s funding is placed on a more sustainable and arm’s length basis.

[Alex Chalk]

Is it not important in this debate to keep a measure of context as well? The sums of money that we are talking about, while not insignificant, need to be set against a wider context. They are less in total, even including blockbuster funding, than the cost of one joint strike fighter and, given the ability of the SFO to protect British interests at home and abroad, that context is worth considering.

[Mark Field]

My hon. Friend makes a fair point, although in the comparison he draws he also possibly makes a point about the expense of defence procurement.

Those of us of a certain age cannot help but be transported back in time when we learn of the SFO’s requests for so-called blockbuster funding to pay for major investigations. Some Members will know that I am a keen pop music fan, and it is exactly 44 years ago today that the glam rock anthem “Blockbuster” by The Sweet was at No. 1 in the UK charts. Now, I am not sure that the 17-year-old future right hon. Member for East Ham was a great glam rock fan, but I am sure that his hair was fashionably longer back in 1973.

The cost of funding the SFO’s blockbuster investigations now invariably takes the SFO well beyond the Treasury’s year-on-year allocation of funding, as we have heard from other Members. Last year, the SFO’s spending reached some £65 million, which was a 12% uplift on the 2015 figure. Blockbuster funding has been applied for, not on an exceptional basis but for four of the last five years, so presumably that form of funding is here to stay permanently, at least in the eyes of the Solicitor General. I would be interested to hear what he has to say about that.

As my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) has pointed out, at the end of last year the SFO successfully secured funding to pursue criminal investigations against the Monaco-based Unaoil, which stands accused of securing complex corrupt contracts for a range of multinationals, including Rolls-Royce. I understand that the ongoing investigations over Barclays in Qatar and a range of potential fraud cases involving foreign exchange may yet have to be subject to special blockbuster funding appeals. Although I accept the Government line that that sort of mechanism allows the SFO great flexibility in the allocation of work, I trust that, as large and complex investigations become the norm, a serious re-evaluation of the pros and cons of the funding system for the SFO will be carried out.

I have to say something else, which I know will lead to my parting company with my right hon. and learned Friend in his paean to how wonderful the SFO is: I deeply regret that the reform of the entire workings of the SFO is overdue, and I believe that was yet another missed opportunity for the coalition Administration who were in office between 2010 and 2015.

For my part, as long ago as the autumn of 2009 I wrote two essays for the ConservativeHome website in the immediate aftermath of the financial crisis, setting out what I regarded as a proposed blueprint for the SFO. Then as now, I contend that an effective financial enforcement system requires the promotion of deterrence and competition, in order to boost consumer protection. Even at that time, a year after the financial crisis began, it seemed clear that, despite grandstanding galore from politicians, there was—indeed, there remains—a growing unease at the paucity of substantial change in the aftermath of that crisis.

Nowhere did that feeling resonate more than in the field of enforcement, where the prospect of adopting US-style powers to prosecute alleged wrongdoers in financial services has of course been dashed. Although over the past year or so the SFO has finally secured LIBOR convictions, it is in all honesty a body that I am afraid has long lacked clout and the respect of those who are most engaged in the financial industry.

As the right hon. Member for East Ham has said, the SFO has been operational since 1988 and the Roskill reforms. It is responsible for the detection, investigation and prosecution of serious fraud cases in England, Wales and Northern Ireland. Although it is operationally independent—as it should be—the SFO comes within the remit of the Attorney General and is given the power to bring criminal prosecutions directly. In contrast, the FCA is able to impose civil sanctions and launch criminal cases on matters such as market abuse, working in tandem with the City of London police and the Crown Prosecution Service.

There are some lawyers—perhaps those who are less close to the SFO’s workings—who continue to lament the difficulties associated with securing convictions for fraud, especially given the collapse of a number of highly complex jury trials. For that reason, many people feel that the introduction of a system of plea bargaining similar to that in the USA would not work. No one will risk blowing the whistle or turning themselves in when the likelihood of a successful prosecution being brought is—at least in recent years, as we have seen—so slim.

The SFO’s problems are not necessarily personnel problems; I agree with what was said earlier. However, having spoken to experts in this field, I have come to believe that one of the organisation’s main problems is in finding cases to investigate. Only when the police or the Attorney General have firm cause to believe that a criminal act has occurred is the SFO permitted to get involved. Moreover, when a case does get under way, its prosecutors routinely face months of battling defence lawyers before they can even get to trial. Of course, the defence has a strong incentive to engage in a war of attrition, in order to derail a prosecution on legal technicalities.

As a result, I think we have faced this task of reforming the financial services system and inculcating in the minds of its participants that sense of right and wrong, with an “umpire”—the SFO, in this case—that too often has lacked the tools or the respect from the market to do its job properly. I am not making any personal criticism of David Green, who, while at the helm, has developed a number of improvements to the SFO in the last three or four years.

Instinctively, I support a more robust economic crime policy, which would place the promotion of commercial competition at the heart of a new code of enforcement designed to deter fraudulent, anti-competitive or criminal activity. Such a policy should centre upon a new agency in place of the SFO, which would combine the SFO and the FCA’s enforcement division.

It is perhaps incongruous that the SFO stands under the jurisdiction of the Attorney General, although I very much appreciate that the right hon. Member for East Ham put that arrangement into some sort of historical perspective. Nevertheless, we should now look to place the SFO’s responsibilities within the remit of the Department for Business, Energy and Industrial Strategy, so that the SFO would work alongside the Competition and Markets Authority. By associating consumer protection with fraud and trust-busting, we would give competition its correct place as a central priority in the future commercial landscape.

Crown Prosecution Service: Funding

Alex Chalk Excerpts

Wednesday 11th January 2017 Westminster Hall

[Karl Turner (Kingston upon Hull East) (Lab)]

I beg to move,

That this House has considered the funding of the Crown Prosecution Service.

It is always a pleasure to serve under your chairmanship, Mr Hanson. Before I begin, I must declare my interests. I am a member of Wilberforce barristers’ chambers in Hull, but am not currently practising. My wife is a criminal duty solicitor with Williamsons Solicitors in Hull, and she is also a part-time judge. I thank the Criminal Law Solicitors Association, the London Criminal Courts Solicitors Association, the Bar Council and the Law Society for contacting me regarding this debate, and for very helpfully providing me with information, which I think will benefit this House.

Expenditure on the Crown Prosecution Service has been reduced significantly from £672 million per annum in 2009-10 to £487 million in 2015. That is a reduction of a massive £185 million per year. At the same time, the number of cases brought to magistrates courts is down from approximately 641,000 to 539,000. On the finances of the CPS, I understand that since 2010, some £83 million has been spent on redundancies, with £20 million of that spent on only 153 staff, or upwards of £131,000 per—senior, I suspect—member of staff.

What has been the effect on cases? The effect has been significant: there is a staggering 23% increase in vacated trials—cases that are due to go to trial but, probably on the day of trial at Crown court, are vacated for whatever reason. In my submission, the reason is often that the CPS is not prepared or ready. In my area of Humberside, 55% of cases are vacated, according to the Public Accounts Committee inquiry of May 2016; the lowest proportion of vacated trials was 11%, in Cleveland.

[Alex Chalk (Cheltenham) (Con)]

The hon. Gentleman is making a powerful speech. I refer the House to my declaration in the Register of Members’ Financial Interests. Is it not right that whether the CPS is ready at trial is down to several factors, and not only funding? In fact, the CPS’s ability to be ready at trial and to perform well has improved over recent years, in spite of funding not having gone up, as he rightly pointed out.

[Karl Turner]

I will read out a whole load of stats and talk about what is happening in the profession in the real world—about what lawyers and solicitors from the defence, and barristers who prosecute and defend, are saying is really happening. The hon. Gentleman wants to pretend that everything in the garden is rosy. Good luck to him, but I have to disagree. I know what is happening, not least because my wife is a defence solicitor in Hull and experiences the pressure on CPS lawyers day in, day out—although at the moment she is on maternity leave. Only today I was contacted by members of the profession, and they described a scenario in which a caseworker burst into tears when sitting in the Crown court behind counsel. If the hon. Gentleman thinks that things are rosy, he is mistaken.

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[Alex Chalk (Cheltenham) (Con)]

I was not planning on speaking, but having heard some of the remarks that have been made, I thought I would briefly volunteer a few thoughts of my own.

[Karl Turner]

I am surprised to hear that the hon. Gentleman did not intend to speak. I received an email that said he intended to do so.

[Alex Chalk]

First, by way of background, like the hon. Gentleman, I worked through the night to prepare long lists for the CPS, from 2002 to 2005. I went around the courts in Hertfordshire—going to the magistrates court and the Crown court, prosecuting and defending cases involving everything from rape to murder to terrorism offences.

I take this opportunity to agree with the hon. Gentleman that the calibre of some of the prosecutors and caseworkers in our Crown Prosecution Service is very high and stands up to comparison with any other prosecuting authority anywhere in the world. One thing I found disappointing was that prosecutors or caseworkers who were exceptionally conscientious or hardworking did not seem to get advancement any faster than people who were not quite as attentive. I thought that was a little unfair.

I agree with the hon. Gentleman on equality of arms. It is vital, particularly when dealing with a serious case, that the prosecution is able to show that there is equality of arms. It is therefore absolutely right, in a serious case, that silk should be instructed if they are up against silk. Where I begin to part company with the hon. Gentleman is on his bald assertion—made with the best of intentions, I accept—that everything can be attributable to funding.

[Karl Turner]

I did not say it is.

[Alex Chalk]

Well, one might be forgiven for thinking that that was part of the assertion. If one looks at the figures from 2010, although the hon. Gentleman is absolutely right that there has been a decline, I am afraid it is wrong to suggest somehow that there were no problems previously but there are now.

From my experience when I was in court, all too often the reason cases cracked, if there was a problem with the prosecution, was system failure. For example, if witnesses had not been warned, if dates to avoid had not been provided or if disclosure had not been served. Those were systematic failings. My hon. Friend the Member for Enfield, Southgate (Mr Burrowes) correctly made the point that systematic change can sometimes be as significant as financial change. The changes we are seeing to the digital case system are causing such an important step change in the quality of the prosecuting service that, for example, when one turns up at the Crown court, one can immediately see on the system that a disclosure has taken place. It provides for that in a far more efficient way.

[Karl Turner]

Does the hon. Gentleman think that those “systematic failings”, as he puts it, are getting better because the CPS is experiencing a £185 million a year cut to its funds?

[Alex Chalk]

Let me make it crystal clear: of course I would like to see more funding for the CPS. There is no question about that. However, I take slight issue with the blandishment that if we simply put in the money that has been taken out, everything would be improved. The reality is that, unless we reform the system to make it more efficient, we will be throwing money at the situation and not taking a sensible, radical and reform-minded approach. The simple point I make is that, where we are making real progress as a country, and where the CPS, through its diligent prosecutors and caseworkers, is able to make a difference, is through systematic changes such as those to the digital case system, which are achieving a step change and improvement in quality. That point is worth making.

The hon. Gentleman also rightly praised that excellent public servant, Alison Saunders. In that vein, is it not worth listening very carefully to what she herself said? She came before the Justice Committee, and I think it was I who asked—by the way, I have no difficulties with asking an open question to get an answer that might be unhelpful to the Government—if the CPS has enough money. I would have been perfectly prepared for her to say, “No, it’s hopeless; we’re going to hell in a handbasket and something has to be sorted out”, but her response was:

“Yes, we think we do, particularly now that we have the CSR settlement. I am not saying that it is easy; let me say that first. Over the last five years, our budget has reduced by 23% or so.”

She went on to talk about the sensible and pragmatic steps that have been taken, but she answered that question in the affirmative. On a subsequent occasion, she indicated she fully agreed with this CPS comment:

“This settlement will allow the CPS to respond to a changing caseload and the significant increase in complex and sensitive cases, such as terrorism, rape and serious sexual assaults and child sex abuse.”

One cannot have it both ways by saying she is a fantastic public servant—which she is, by the way—and ignoring what she says.

I respectfully and completely agree with the hon. Gentleman’s intentions. He wants an excellent Crown Prosecution Service. I do, too. He values excellent Crown prosecutors. I do, too. Equally, however, we have to look at this in a sophisticated way, not simply through the blunt instrument of funding. I believe, broadly speaking, that we are on the right track. We have excellent public servants; we should allow them to get on with their job.

--- Later in debate ---

[Alex Chalk]

The hon. Gentleman draws attention, quite properly, to a very salient figure, but how can one be absolutely clear that that is to do with the Crown Prosecution Service as against the list office, the offence or the actions of the court? Why focus specifically on the CPS?

[Nick Thomas-Symonds]

I hoped I had made it clear that this is about the performance of the system. The Conservative party, in one way or another, has been responsible for that system for seven years. Wherever in the system we isolate the cause, the Conservative party cannot escape blame for the performance of the system. That is the point I have been seeking to make.

When we talk about money, we have to be extremely careful about false economies, because things can seem as if they will save money. Let me give an example. I drew attention to the staffing budget, which I asked a specific written question about, and the Solicitor General was kind enough to answer very directly. It has been substantially reduced, but at the same time the Crown Prosecution Service is spending substantial amounts of money on agency staff. The response to my written question showed that in 2015-16, more than £7.8 million was spent on agency staff.

When we look at this in the round, we have to do so in two senses. First, of course this is not purely about money, but when money is cut from certain budgets, we have to be conscious of the effect on the system and whether false economies are causing problems further down the line or mean that we have to hire agency staff instead. The second point is about the whole system of which the Crown Prosecution Service is a part. I hope that all of us across this House want to see these measures improve. The responsibility is on the Government for these measures to improve. I am sure they accept that responsibility, but they have to act, and act quickly, because the performance of the system clearly needs to improve rapidly.

--- Later in debate ---

[The Solicitor General]

Again, I have spoken directly to many CPS staff, particularly in Wales; indeed, a lot of them used to instruct me. Some of the staff have been there for 30 years—the CPS’s retention rate is extraordinary. I think I get a bit of frankness from them, and they tell me that, in many respects, working practices have improved. The reduction in offices has helped them to work more smartly. They are now physically co-located in buildings with the police. They are working in ways that they did not dream were possible before.

[Alex Chalk]

Does my hon. and learned Friend the Solicitor General agree with me, and indeed the hon. Member for Kingston upon Hull East (Karl Turner), that if one is to use the independent Bar, it is also important to ensure that equality of arms is observed? There comes a point at which victims’ groups and victims’ families can rightly note the disparity that apparently exists between the seniority of counsel for the defence and the relatively junior status of counsel for the Crown.

[The Solicitor General]

My hon. Friend makes an important general point. Equality of arms is, of course, enshrined in article 6 of the European convention on human rights. It is something that we all understand as practitioners. It would be wrong of me to comment on individual cases, but I will say that where the Crown Prosecution Service is having to deal with complicated and complex issues relating to homicide, resource is never a bar to using the most experienced and senior counsel available, and that of course includes leading counsel.

Time is extremely short, and I want to give the hon. Member for Kingston upon Hull East a minute to respond, but let me say this. With regard to engagement, the most recent survey of employees of the CPS, of which two thirds took part, showed a welcome increase this year of 5%, right up to a figure of just over 59% telling us that morale in the CPS is good. They face significant challenges, but with increased numbers, particularly in the rape and serious sexual offences units, and an emphasis on the prosecution not just of volume cases but of serious sexual offences, conviction rates continue to stay steady and the numbers of people being brought to justice continue to rise, particularly in the important area of violence against women and girls. I could say much more, but I am mindful of the time.

Oral Answers to Questions

Alex Chalk Excerpts

Thursday 26th May 2016 Commons Chamber

[Caroline Dinenage]

I was one of those women—under the Labour Government, I was literally working to pay for my childcare. I am so proud that this Government have done more than any other to make childcare affordable and flexible; that is why parents with children aged three to four will be able to access up to 30 hours of childcare.

[Alex Chalk (Cheltenham) (Con)]

rose—

[Mr Speaker]

Order. We will get to the hon. Member for Cheltenham (Alex Chalk) in due course. He need fear not.

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[Dr James Davies (Vale of Clwyd) (Con)]

5. What steps the Government is taking to support older women in the workplace.

[Alex Chalk (Cheltenham) (Con)]

7. What steps the Government is taking to support older women in the workplace.

[Lucy Allan (Telford) (Con)]

12. What steps the Government is taking to support older women in the workplace.

--- Later in debate ---

[Caroline Dinenage]

I absolutely agree with my hon. Friend. That is why we have invested £1.7 million to look at the best ways to support carers to stay in employment, including exploring how businesses can give employees with caring responsibility more help through flexible working and setting up carers surgeries. We have extended the right to request flexible working, with more than 20 million workers now eligible.

[Alex Chalk]

Age discrimination remains a problem. I am delighted to hear the Government are taking the matter seriously, but what concrete steps can be taken to ensure that older women, who are increasingly important as the pension age increases, get the opportunities they deserve?

[Caroline Dinenage]

My hon. Friend is absolutely right. It is vital that women are supported in returning to work following a break in their career. I recently attended the launch of the Barclays and Women’s Business Council “Comeback Toolkit”, which is a fantastic example of innovative working practices and inspirational case studies, such as their “Bolder Apprentice”, Lucille Galloway. She spoke passionately about how returning to a role in the workplace has transformed not only her life but the lives of those around her.