Leaving the EU: Legal Services

Alex Chalk Excerpts

Wednesday 21st November 2018 Westminster Hall

[Robert Neill]

That is entirely right. Some of the worst examples, before we developed the mutual enforceability of judgments, related to child abduction. In cases involving non-EU states, in which we are a third country, the parent here—frequently the mother—was at a significant legal disadvantage and did not have the protections that we have under the current arrangements, particularly the recast Brussels arrangements. I am glad that my hon. Friend has raised that issue.

I want to make two other points very briefly. First, I support my hon. Friend’s point about English law. Those of us who have practised know that, because of the reputation of our system, it is almost the norm to find English law clauses in international contracts. We want that to continue, but it is concerning that the Bar Council and the Law Society have been reporting evidence—so far anecdotal, but strong—that the uncertainty and the risk of a crash-out arrangement without contractual continuity is leading some firms to advise their clients to have clauses excluding English law from contracts. It would be extremely troubling if that were to persist. The longer the uncertainty, the greater the risk.

Simmons & Simmons, a leading law firm, conducted a survey of clients in Germany, France, Italy, Spain and the Netherlands to look at what the courts in those countries might adopt if we were a third country and could not rely on the current arrangements. It reported that 88% of clients—people abroad buying British services—thought that the Government needed to make an early public statement to remove uncertainty, and 50% said that, without that, they would be inclined to move away from choosing English law or jurisdiction clauses. The situation is urgent, so I will back the withdrawal agreement because it will get us into a transitional arrangement, which will give continuity for that period. More importantly, contracts will run beyond the date on which we leave, and significant commercial litigation will almost certainly take more than two years to work its way through. I hope that those issues will also be taken on board.

Will the Minister consider a couple of suggestions by the City of London Corporation and TheCityUK, to which I am grateful, about failsafe devices—I do not like to use the word “backstop”, because it has certain controversial associations—that we could have in parallel with seeking to get the withdrawal agreement through and get into the transition period? It has been suggested that it would be reasonable to look at a means of copying the text of the Rome I and Rome II regulations into our own private international law. Those regulations, of course, determine the applicable law for contractual obligations. As well as seeking the transition, many lawyers think it would be advisable to copy those texts—in parallel, I suggest, as a belt and braces operation—which are much superior to anything that went before, into our law. It is also important that we consider re-signing The Hague convention as an independent party. That would be a failsafe, not my preferred objective, but we need to have those eventualities in mind. That would assist with certainty.

In her Mansion House speech, the Prime Minister talked about the Lugano convention. I think that most people would concede that Lugano, in its original form, is nothing like as good or effective as Brussels I and II in their recast form. They are the gold standard that my hon. Friend the Member for Huntingdon referred to. Will the Minister take away the idea that, to get us anything like as good as we have under Brussels, any Lugano would have to be a Lugano plus plus plus?

[Alex Chalk (Cheltenham) (Con)]

I am grateful to my hon. Friend, the Chair of the Select Committee on Justice, for giving way. The comments made in this debate bear a striking similarity to those made in the debate that followed the production of the Committee’s report. That just goes to stress the urgency of the situation. Law firms cannot wait forever to get a degree of certainty; the time for action is fast running out. Does he share my concerns about that?

[Robert Neill]

I agree that there is a danger of us becoming a legal version of groundhog day in these debates. I know that the Minister is absolutely committed to achieving continuity, but there is a real sense of frustration among practitioners because, although there are warm words, promises and statements of intent, and a Brexit law committee in which practitioners are involved is being set up, none the less, despite those strong wishes, the detail on future arrangements remains extremely scarce. If the Prime Minister succeeds in moving us on to the next stage, as I hope she does, it is absolutely critical that that detail is fleshed out at the earliest stage. I hope that we will take the opportunity of strengthening the political declaration that comes as part of the package with the withdrawal agreement, as the Prime Minister said today, so that it makes more reference to legal services in particular.

Oral Answers to Questions

Alex Chalk Excerpts

Tuesday 13th November 2018 Commons Chamber

[Lucy Frazer]

The hon. Lady makes an important point. I have looked at that study as I have many other studies that talk about the downstream impacts of the lack of legal help at an early stage. As she will know, we are in the process of a LASPO review. We are looking at these matters, and I am interested that she highlights the need for further independent study.

[Alex Chalk (Cheltenham) (Con)]

Citizens advice bureaux do exceptionally important work in providing early advice and assistance, which is invaluable for my constituents. Will my hon. and learned Friend pay tribute to Cheltenham citizens advice bureau for its important work and ensure that it continues to receive the support and assistance that it requires to do it?

Future of Legal Aid

Alex Chalk Excerpts

Thursday 1st November 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Sir Henry. I start by referring to my declaration in the Register of Members’ Financial Interests. I thank the hon. Member for Hammersmith (Andy Slaughter) for securing this debate on a very important topic.

I make no bones about approaching this debate with a rather personal stake. Before I came to this place, the whole of my working life had been as a barrister practising in the criminal courts, almost invariably publicly funded by legal aid to defend or by the Crown Prosecution Service or the Serious Fraud Office to prosecute. I hope I can recognise that this is not merely an academic matter. These things affect the lives of every one of our constituents and every Member of this House, regardless of party. I hope I will be able to approach the debate in that spirit.

It is a long history that we have to review. LASPO is just one step in the changes to legal aid that we have seen over the years. The hon. Member for Huddersfield (Mr Sheerman) referred to the famous quote by Mr Justice Mathew, later Lord Justice Mathew. At the turn of the 20th century, he said that the courts of England are open to all like the Ritz hotel. I am sure the hon. Gentleman was not actually there at the time—I was not either—but it has become a stock phrase. The point, however, is that Mr Justice Mathew was being ironic; for those who did not have means, there was precious little access to the courts of England at that time.

After that period, we developed a system of legal aid over a number of years. I accept that I was to some degree a beneficiary of that system, but the system was necessary to ensure that justice was done. Thereafter, it may be argued—I think it was part of the rationale behind LASPO—that in some areas, the system did not work as efficiently as it might. I can think of rolled-up conspiracy trials that went on for about six months, where two barristers for each defendant would ask about one question a week. Frankly, that was not an expenditure that could be justified, and it was not targeting things in the right way.

The problem is that successive Governments seeking to reform—it is worth remembering that changes to legal aid did not begin with LASPO or the coalition Government; they were set in train initially, in some measure, during the Blair and Brown Governments—have run the risk of throwing out the baby with the bathwater. In cutting down on some instances of needless expenditure that went beyond what was necessary to ensure justice, there is always a risk that the pendulum will go too far the other way. Having looked at the matter and tried as a lawyer to look at the evidence, I am sorry to say that I am driven to the conclusion that that is what has happened here.

The good news is that there is an opportunity to review things. It is a shame that it has taken so long, but we would all say, “Better late than never.” I know that the Minister is absolutely committed to ensuring proper, good-quality access for all who genuinely need it. I know her personal commitment to the Bar, the rule of law and our legal system and her personal experience of it, so I know she will approach this matter in the open-minded way she did when she was in practice herself. I urge her to look at the evidence. As the hon. Member for Hammersmith said, the evidence is pretty compelling that changes are needed. I do not expect her to say what those changes are going to be today, but I hope she will take away the message that the evidence does not purely come from pressure groups of self-interested lawyers. Nothing could be further from the case.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making an excellent point. Does he agree that our international reputation is at stake? The legal sector is one of the most important in our economy. If we want to continue to be a country that has a global reputation, generating revenues for our economy in respect of international law, we need to ensure that we hold up equality of access to justice for all as a touchstone of our liberty.

[Robert Neill]

My hon. Friend is absolutely right. He speaks with great experience from his time in practice in serious criminal matters and from his work on the Justice Committee, to which I pay warm tribute. We cannot disaggregate the justice system. As part of our post-Brexit strategy and our “Britain is GREAT” campaign, the Minister’s Department is rightly proclaiming the value of our legal system and legal services, which is real and profound. Their integrity depends on the whole system being properly resourced and funded. It is no good simply to say that we have the best means of commercial dispute resolution and arbitration in the world. It is not enough to say we have probably the best system of civil justice across the piece in the world. It is equally important that we can say the same about our criminal justice system, our family law system and our tribunals system. They are increasingly relevant and important to the whole system.

[Robert Neill]

With his experience, the hon. Gentleman makes an entirely valid point. The Justice Committee has looked at a number of those areas over the past two or three years or so, and we have looked at aspects of access to justice in all its forms. It is partly about legal aid, but there are other matters, too. I will concentrate on legal aid because that is the subject of the debate, but his point about other matters is entirely fairly and well made.

There is a clear case that in attempting to right what was perhaps extravagance in some limited areas, we may have inadvertently done injustice to potential claimants. We need to put that right. The first area that I would suggest to the Minister is important is funding advice, as has already been observed. The legal aid change was predicated—I was there at the time, as was the hon. Member for Hammersmith, and I was prepared to take this on face value—on the idea that it would be a good thing to move away from the comparatively adversarial approach to family cases to mediation and something much more collaborative. That has to be the right thing. The Minister’s Department is recognising that in another sense with the sensible proposals to reform the divorce laws to move away from a confrontational approach. The irony is that so far as legal advice and representation are concerned, those good intentions have not been followed through.

As has rightly been observed, early access to legal advice and a solicitor would point people in the direction of mediation. We can invest significant money in having much more public education so that people can assist themselves, but it may be just as cost-effective—I suspect it would be more cost-effective—to restore some measure of early advice in those family cases. Any good solicitor worth their salt will rightly advise their clients to adopt that course of mediation if it fits the circumstances of the case. Restoring the position there would be a sensible investment to save.

[Alex Chalk]

Does my hon. Friend agree that sometimes the best advice that a lawyer can give at an early stage is, “For goodness’ sake, don’t litigate”? If that good advice is given at an early stage, we can have a reasonable expectation that the courts will be properly allocated to deal with those disputes that they should be dealing with.

[Robert Neill]

Again, my hon. Friend is absolutely right. What he says applies not only to family work, but to any form of civil litigation and, in truth, to criminal work, too. When I defended people, I regarded it as my first and principal duty to give them an honest assessment of their prospects of successfully defending a charge.

--- Later in debate ---

[Robert Neill]

I take the hon. Gentleman’s point, and I agree that there was nothing malign in the intent. The changes were made at a time when the coalition Government were under considerable financial pressure because of the situation that we inherited. I have much sympathy with that, but to adopt the phrase of John Maynard Keynes, “When the facts change I change my opinion—what do you do, sir?” The Government need to do that too, because the evidence has been built up, and it is powerful.

For a number of reasons, it was thought necessary to introduce the LASPO reforms at some speed. They were probably not fully worked through, there was no chance to do sufficient impact assessments, and they were not tested. Again, it was not for a malign reason. At the time, there was a compelling budget imperative to get on with it, but it created unintended consequences. As the Prime Minister has observed, we are getting to a stage where, thanks to the Government’s good economic stewardship, we might be able to loosen the purse strings a little in some areas. That gives us the chance to adopt that Keynesian approach and adjust our conclusions to the fresh evidence that has come before us.

Early advice is essential. We have talked about family work and its importance in the criminal system. Any lawyer will advise his client, if the evidence against him or her is overwhelming, of the advantageous discount in sentence for an early plea. Proper advice by specialist lawyers saves time and money, and saves witnesses in criminal cases from the trauma of having to go to court. We should not forget that either, as it is an important part of the system.

Early advice is also important in cases of housing and debt, and related matters. People have come to my surgery, in a comparatively prosperous part of suburban London, having been in effect served with an eviction notice because they did not understand the court papers. Bailiffs were literally coming to the door. We cannot expect people who often have multiple problems in their lives necessarily to be able to resolve such things on their own.

We can certainly make the civil justice system easier to navigate. The reforms to an online court, for example, and better means of entering pleadings and dealing with smaller-sized claims are all perfectly worthy and worth while. However, ultimately, even if a computer can process the pleadings efficiently and effectively, it cannot advise someone on whether there is merit in their claim, whether they have a defence to an action brought against them or how they might best compromise the matter so that they do not, for example, end up on the street or saddled with significant debt. All those things require the legal element, and I suggest that there would be a saving in reinstating some funding there.

I keep in touch with many friends and colleagues at the Bar who now sit on the bench. I sometimes reflect that my career took a wrong turn somewhere along the line. The truth is that anyone in the judiciary—whether from the High Court or, perhaps even more significantly, down to circuit judges and district judges, who shoulder the vast volume of the work, as well as magistrates—will say that the amount of time that is now taken up by litigants in person is placing a serious burden on the system. I go to my local county court and talk to the district judges and the county court judge. Exactly the same thing can be seen at the magistrates court, and I have no doubt that it is replicated across the country.

It is generally thought that a litigant in person will take about three times as long to deal with a case than lawyers would, if they were involved. The upshot is that we are saving cost at one end of the system but piling it on in another part. The net benefit to the public purse is nil—perhaps even negative.

[Alex Chalk]

My hon. Friend has been so generous. Does he agree that one of the pillars of our world-renowned legal system is the integrity, skill and impartiality of our judges? It is no secret that they feel quite put upon at the moment, not least on pensions and other matters. Their time is being taken up with extremely complex issues where it is harder for them to achieve justice. Does he not agree that we should take that extremely seriously, so that we continue to have a pipeline of the brightest and the best?

[Robert Neill]

That is right. We could probably have a debate on judicial recruitment and retention.

[Alex Chalk]

Put in for it.

[Robert Neill]

Perhaps we should, and perhaps I will encourage my hon. Friend to join me in doing so.

Litigants in person are a real pressure on the totality of the court system, because if courts are being clogged up by cases that are being slowly presented—where the judge has to hold the litigant by the hand to take them through steadily and ensure that there is no miscarriage of justice—that uses up the time of the court building and the court ushers. It puts pressure upon listing, and means delays in other cases coming on. There are more likely to be adjournments because people will not have prepared the bundles properly or got their evidence together. That is all wasted cost in the system, which some early investment would save.

Those are key areas where more could be done. We perhaps need to look, too, at some areas in relation to tribunals—an increasingly important area of jurisdiction. Not all tribunal cases, of course, need legal representation, but they increasingly deal with more complex matters and more complex areas of law and of fact where it makes sense, for exactly the same reasons, to have proper legal advice.

Joining those thoughts together, I commend to the House the Justice Committee’s reports on access to justice, and on courts and tribunal fees. Although fees are separate from the legal aid regime, the unintended consequence of some of those changes was remarkably similar in making access to justice for deserving—that is the key bit—claimants more difficult. Finally, we recently wrote a report on criminal legal aid. I will end on that—it may be the subject on which I have spent most of my life.

We cannot have a situation where it is extremely difficult to get high-quality young lawyers to go into criminal work. The integrity of our system, to which my hon. Friend the Member for Cheltenham (Alex Chalk) referred, is seen most visibly in the way in which we deal with criminal cases. If the state, no doubt for good reasons, thinks it necessary to bring charges against an individual to be tested in our courts, it is only right and proper that that individual, having had the resource and power of the state brought against them, has as a matter of equality of arms and basic fairness the ability to defend themselves. To do that properly, they must be able to access lawyers who are as good, as well trained, and as competent as those who prosecute.

To do that, we have to be prepared to remunerate people. We cannot have a situation where criminal barristers are worse off, as they are under some aspects of the advocates’ graduated fee scheme at the moment, if they take on a complex and demanding case—for example, a multi-handed rape—as opposed to a single-handed offence of the same kind, because the extra work is simply not reflected in the fee. Those are precisely the cases— I did many of them myself—where experienced and sensitive advocates on both sides are critical. We are in danger of damaging the supply chain, as far as that is concerned.

It also cannot be right that the system does not remunerate defence lawyers for looking at the unused material in cases. Some of the main cases where miscarriages of justice have occurred, as you will know, Sir Henry, from your experience in these matters, are where there has been a failure in disclosure. Usually it is, as is often the case here, a result of unintended error. Although I have come across one or two cases where I could not say that that was the case, things genuinely go wrong, and it must be possible, in terms of the fairness of a trial, for the defence lawyers to be able to look through the unused disclosed material to ensure that there is nothing that might be exculpatory to their client.

That is only right and proper, and prosecutions have collapsed in high-profile cases because that was not properly done. People have been saved by the integrity of members of the independent Bar, on both sides, who took the opportunity, even though they were not going to be paid for the hours, to go through the unused material and highlight matters that meant that the prosecution could not safely proceed. It seems only right and just that the solicitors and barristers who were on legal aid on those matters should be paid for doing that, because we want to ensure that it is done properly. Let us face it: as those cases highlighted, the sooner it is done the fewer wasted hearings and adjournments, which have bedevilled some of those high-profile cases, there will be. It is not only the right thing but the common-sense thing to do.

We also need to recognise that early advice from solicitors at the police station is critical in criminal cases. Striking evidence was given to the Justice Committee inquiry that the average age of a police station duty solicitor is 47. Young people are not coming into the role because it is simply not remunerated well enough.

That all leads me to the conclusion that Lord Kerr got it right in his Supreme Court judgment on the Unison case. His view, to which I am driven by the evidence, was that regrettably, however good the intentions, the current arrangements under LASPO have adopted too transactional an approach to justice. He said that litigation is not merely a private transaction between parties; it also involves a greater public good. In that case, which was about employment tribunals, it involved the exposure of bad working practices and improvements that might stem from it, but the principle applies to any type of litigation. There is a public good in access to the courts that goes beyond the right—itself important—of the parties themselves to have access to justice. It is a bigger thing—a point that takes us back to our commitment to the rule of law, which my hon. Friend the Member for Cheltenham referred to.

I therefore urge a Keynesian approach on the Minister. Keynes was not always wrong, and he was certainly right about this. If we believe in following the evidence, as we all do in any legal process, and if the evidence indicates that things have gone too far the other way and we have the chance to change them, there is no shame in admitting that. It would be honest politics, good government and entirely consistent with the spirit that the Minister and her ministerial colleagues seek to bring to our approach. Where we can put things right, it is better to accept the position, act on the evidence and ensure that we have a better basis for legal funding and access to justice.

--- Later in debate ---

[Ms Buck]

Absolutely. I would love every Member of this House to watch that video and to be made aware of the case being made.

We know what is happening to legal aid providers. Law centres lost 60% of their income from legal aid post LASPO, and in the immediate aftermath we lost eleven law centres. I pay tribute to my own centre, Paddington law centre, which provides such an essential service. I also commend North Kensington law centre—this country’s first law centre, which I used to represent but is now just outside my constituency—for doing such extraordinary work in the aftermath of Grenfell.

Law centres are indispensable; they are an integral part of effective community life. The Chair of the Justice Committee was absolutely right to draw attention to the fact that justice is not a private transaction. These services—particularly law centres, but not only them—are part of a healthy community and a strong civic life. The consequences of undermining them go far beyond the individuals concerned.

[Alex Chalk]

Does the hon. Lady agree that there is a lesson for us in this place, too? There is no point in our standing up, making speeches, passing legislation and pontificating grandly if the laws that we give effect to are ultimately not capable of being enforced. Is that not a crucial point?

Civil Liability Bill [Lords]

Alex Chalk Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 23rd October 2018 Commons Chamber

The Government’s position is clear: we have enormous respect for the work of personal injury lawyers, who play an honourable and important part in society in representing the interests of victims as a whole, and in no way should this Bill be read as suggesting anything other than our respect for those individuals and the work that they do. However, we argue that the purpose of the small claims court is best dealt with through focusing on the nature of the claim, not on inflation. Many of the arguments that have been made, for example by the hon. Member for Lewisham West and Penge (Ellie Reeves) and others, have focused on the question of inflation. Indeed, the entirety of new clause 1 attempts to set up a system where we look at inflation over the intervening period and determine purely on that basis whether the limit should be raised. However, as the hon. Member for Hammersmith pointed out, our theory is different—it is respected by the practice of the European courts and other jurisdictions: the basic determinant of what goes into the small claims track is not inflation but the complexity of the claim.

[Alex Chalk (Cheltenham) (Con)]

Does my hon. Friend agree that it is important that claims against employers above £2,000 are taken outside the scope of this? It is right in those circumstances, where it can be difficult to make the claim stick, that people should be entitled to recover their costs in the event of a successful claim. Does he agree that making that change was a critical improvement to this Bill?

[Rory Stewart]

My hon. Friend makes a powerful point, which should, to some extent, reassure the hon. Member for High Peak, some of whose arguments rested on damages in the workplace. The rise to £5,000 does not relate to damages in the workplace. As has been pointed out, it relates only to whiplash injuries suffered in a vehicle.

--- Later in debate ---

[Gloria De Piero]

Amendment 2 gets to the heart of our issues with the Bill and would remove the whiplash compensation tariff system altogether. We are dealing with human beings who experience pain differently, who have different lives and who will all be affected by a similar injury in a slightly different way. We would not accept a pricing of insurance premiums that did not take account of whether we drove a Mini or a Maserati, and we would not accept a standard payment for damage to a car, regardless of its state after an accident. Where is the justification for using such a blunt instrument as a tariff to calculate pain?

We all want to stamp out false whiplash claims, but why should HGV drivers, firefighters or parents driving their kids to school be treated like fraudsters claiming falsely for whiplash, left with tariff compensation and no legal help? As Lord Woolf, the eminent former Law Lord who carried out a review of civil justice after being commissioned by a previous Conservative Government, pointed out in the Lords:

“The effect of whiplash injuries, with which we are concerned, can vary substantially according to the physical and mental sturdiness of the victim. This means that the appropriate amount of damages for a whiplash injury can vary substantially... I suggest that they are not suited to a fixed cap, as proposed by the Government.”

He went on to say that a tariff

“offends an important principle of justice, because it reduces the damages that will be received by an honest litigant because of the activities of dishonest litigants.”

The Government’s proposals will punish the honest based on the behaviour of the dishonest, but how big is that dishonest group? The ABI said in 2017 that insurers paid out in 99% of all cases and that fraud was proven in only 0.22% of cases. Woolf decried the Government’s move to

“interfere with the Judicial College guidelines by substituting tariffs or a cap, which lack the flexibility of the guidelines.”

He went on in speaking against the proposed dismissal of a tried and tested system of justice to say that the Lord Chancellor

“is motivated, at least in part, not by the normal principles of justice as I understand them but by saving insurers money, in the belief that this will result in a reduction in premiums for motorists who are insured when they come to pay for their insurance.”

Later, he put it as strongly as simply saying:

“There is no precedent for this intervention in the assessment of damages in civil proceedings.”—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1593-1595.]

He went on to quote Sir Rupert Jackson, who said:

“It is the function of judges (not Parliament) to set the tariffs for pain, suffering and loss of amenities in respect of different categories of personal injuries”.

Lawyers who deal with such issues all the time have pointed out how people who are already suffering, and perhaps unable to earn a living due to their injury, will be worse off under the proposed tariff. They include experienced legal practitioners from the Tory Back Benches, such as Baroness Berridge, who said:

“I have met many a claimant for whom the difference in damages now proposed by the introduction of the tariff, taking some damages from four figures—£1,200 or £1,400—down to the likes of £470 is a significant matter for many peoples’ incomes up and down this country. I cannot have it portrayed that this might not make a great deal of difference to many ordinary people in the country.”—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1611.]

That is from a Government Back Bencher.

[Alex Chalk]

The hon. Lady is making fair points, but it is important to take into account that the claim may consist partly of a general damages component and also a special damages component. Does she agree that if the individual had, for example, been required to take time off work and had incurred costs—or losses—in the process, he would still be able to litigate and seek to recover those damages?

[Gloria De Piero]

The tariff system would mean that somebody who today was entitled to £1,200 or £1,400 would be compensated with far less. I am quoting Baroness Berridge.

[Alex Chalk]

We have to be really careful in this debate to draw a distinction between general damages, which are for pain, suffering and loss of amenity, as with whiplash, and special damages, such as the cost of taxis or lost employment. Does the hon. Lady agree that special damages will still be recoverable in the normal way and that we should not be confusing the two?

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[Mike Wood]

Absolutely. Although I tend to argue for a slightly slimmer role for the Government, I do think that there is a place for them in this regard. When we insist on mandatory motor insurance, there is a clear role for the Government in ensuring that pressures on the price of that mandatory insurance are kept under control as much as possible. Having the Lord Chancellor’s oversight of the tariffs is one way in which we can ensure that the people who are already struggling with the escalating costs of motor insurance do not see them taken even further out of reach.

There is a clear risk of a serious moral hazard when it comes to escalating motor insurance. The more that premiums increase, the greater the risk—the greater the temptation, we might say—for some people to take the chance illegally to fail to take out motor insurance and to drive on our roads uninsured, with everything that that implies for safety and for coverage of third parties. Given the current high levels of motor insurance premiums, research suggests that around a quarter of 18 to 24-year-olds have been tempted to try to make savings by not taking out or not renewing their motor insurance policy—driving without insurance. Surely that number can only increase if the cost of motor insurance becomes ever more expensive and increases by far more than inflation or incomes.

As the real cost of motor insurance spirals, more people will be tempted to take the risk of driving without insurance, and young people are more vulnerable to this by far because their premiums are already so much higher. Such behaviour puts other people’s safety at risk and leaves them in an even more difficult situation in the event that they need to make a claim. The number of claims against uninsured drivers increased significantly last year.

The measures in the Bill are designed to keep insurance premiums under control, which is essential if we are to have a functioning motor insurance system. That is why I am not able to support the amendment, why I shall be supporting the Bill, and why I believe that the tariff system for minor injuries is absolutely necessary and must be retained in this legislation.

[Alex Chalk]

It is a pleasure to follow my hon. Friend the Member for Dudley South (Mike Wood).

Whether we sit on the Government Benches or the Opposition Benches, the first thing that hon. Members have to recognise is that we do have a problem in this country; of that there can be no doubt. Other hon. Members have mentioned the statistics, but they bear repeating. In 2005-2006, there were 460,000 or so road traffic accident-related personal injury claims. Just a decade later, that number had soared by 40-odd per cent. to 650,000. There must be concern that the circumstances exist in our country to create an unnecessarily fertile ground for spurious and unfounded claims. What are those circumstances? They include the fact that instead of challenging whether a whiplash claim is dishonest or otherwise unfounded, insurers will take a commercial decision to pay out, because that will be in their interest. As other Members have indicated, the effect of that is that ordinary people living on modest incomes are finding themselves having to pay more for their car insurance than would otherwise be the case.

It is a great mistake to say, as some do, that a car is a luxury—to say, “You don’t need your car; alternative transport methods should be satisfactory.” For plenty of my constituents, that simply is not the case. We currently have a big issue in Cheltenham with the closure of Boots Corner, a key arterial route through the town. One argument made by those who favour closing off the road is that people can get around on bikes. That might be okay for some people, but for plenty of my constituents—including nurses, people ferrying around their children, and people with disabilities—it is not. We have a duty in this House, wherever we stand, to drive down the costs of living for hard-working people and their families.

We have to be clear on what the legislation is not about. A lot of the points made by Opposition Members are motivated by the best of intentions. I have served on the Justice Committee with several Opposition Members, and they have shown great distinction—if I may be so bold—and argued vigorously and passionately for the principle of access to justice and on employment tribunal fees, to which the hon. Member for Lewisham West and Penge (Ellie Reeves) referred. But that is not what this legislation is about. It is important not to set up straw men to knock down. Were this debate about LASPO, access to justice and ensuring that people could get early legal advice and assistance, I would have an awful lot more sympathy, but in fact is far more restricted, calibrated and proportionate.

First, this debate and the provisions in the Bill are not about people who sustain whiplash injuries and whose pain, suffering and loss of amenity last beyond two years. If they do last for longer than two years, the case of course falls outwith the tariff system. Secondly, this debate is not about special damages. Let us consider a run-of-the-mill case in which somebody is involved in an accident, makes a whiplash claim because they have a sore neck, spends time off work and incurs taxi fees going to and from the doctor and various other fees. Such special damages would not be subject to any kind of tariff and could be claimed in the normal way. In other words, if someone was off work for, say, nine months, the mere fact that their general damages for pain, suffering and loss of amenity had been capped would not in any way preclude them from seeking the full extent of their special damages. That is why it is important to draw a distinction.

[Andy Slaughter]

I should say that I have secured a three-hour Westminster Hall debate on the LASPO review, access to justice and all such matters on 1 November. I look forward to having the hon. Gentleman join us and to his being fully supportive of my speech.

On this issue, the hon. Gentleman may want to address specifically the issue of the level of the tariff. I hear what he is saying, but what about the level of damages, which cannot in any way compensate for what are in many cases real injuries?

[Alex Chalk]

I am grateful to the hon. Gentleman for making that point about LASPO, because if I may say so he is on stronger ground on that territory and I look forward to attending his debate and making some observations. That debate truly is about a cardinal principle that we in this Chamber should all share: whatever a person’s circumstances, they should be entitled to access to justice. It would be quite wrong, though, to conflate that debate with the one we are having.

On the tariffs, I do not suggest that this is the case for the hon. Gentleman, but there cannot be synthetic outrage. If someone has suffered pain, suffering and loss of amenity to the extent that their symptoms endure beyond two years, they are entitled to get whatever the judge thinks appropriate. We are dealing with claims that, although not insignificant, are towards the lower end of the spectrum. That needs to be borne in mind.

[Ellie Reeves]

The hon. Gentleman is right in saying that special damages are not included in the tariff. However, the point that needs to be made is that under the tariff system someone could, as he rightly points out, be off work for a very, very long time, but because of the way that the tariffs are set, their claim would fall into the small claims track, meaning that they would not be able to have their legal costs covered, so would be unlikely to get representation for their claim. That is likely to mean that they could have a big special damages claim that is never recoverable because they will be unable to afford to pursue their claim. Does he agree?

[Alex Chalk]

No, I do not. First, in any event, as the hon. Lady knows, if the person’s claim extends beyond £5,000, it will go on to the fast track, so they will be entitled to get that cost. Secondly, the concern that a number of solicitors raise about this is to say, “The really difficult thing that you need to claim—the thing that is hard sometimes to prove—is the general damages element.” That is why they have become so indignant about it. In fact, the special damages claim is rather easier to quantify, and I do not think that people would, in effect, be frozen out of justice. Thirdly—if this aspect of the Bill had not been changed, I think I would be opposing it—for the really difficult claims where, for example, somebody has been injured at work and faces, as I accept entirely, the added burden of having to take on their employer, the threshold does not apply in the same way. It is absolutely right that the Government have moved on that to ensure that anything above £2,000 means that people go on to the fast track.

On the hon. Lady’s specific point about the tariff, is it right to say that this is an egregious departure from anything that we have known before in English law? That is putting it far too high. My hon. Friend the Minister has already indicated that the Criminal Injuries Compensation Authority sets that principle in any event. Furthermore, it is a principle adopted in plenty of other countries that are signatories to the European convention on human rights, Italy for one.

It is also worth stepping back to consider the criminal law. Before the Sentencing Guidelines Council, as it was then called, started to set its guidelines in terms of tariffs for criminal penalties, there was a concern that it would be intruding on the discretion of the courts, but in fact it has worked very well. Defendants, lawyers and judges have really welcomed the guidelines, which set clearer tariffs, because that provides a degree of clarity. Of course, it is not a direct equivalent because judges still retain some discretion within the guidelines, but it does make the point that completely open-ended discretion does not exist everywhere throughout the legal system.

There are other mitigating factors that allow me, and people like me, to conclude that these are fair and proportionate proposals. First and most important is the exceptional circumstances uplift. Clause 5(1) says:

“Regulations made by the Lord Chancellor may provide for a court—

(a) to determine that the amount of damages payable for pain, suffering and loss of amenity in respect of one or more whiplash injuries is an amount greater than the tariff amount relating to that injury”.

In other words, there is a safety net in circumstances where the law would otherwise do an injustice. That is really important and ought to give a lot of comfort to Opposition Members who might otherwise be concerned. The second reason I feel comforted is that the tariffs are clearly going to have the engagement and input of the judges. That is why Lord Brown concluded that there was nothing wrong in principle with a tariff system.

There are of course things that have to be got right. It is critically important that any savings that are derived from this are truly passed on to motorists. I want to ensure that constituents in Cheltenham receive the benefits. We need to ensure that young people who are setting out on their careers and need their car for work, for whom every last £10 is critically important, will be receiving these benefits. If they do, then my clear view is that these principles are sensible, proportionate and calibrated, and have a safety net. Even though—I probably ought to have declared this at the beginning, Madam Deputy Speaker—my wife is a personal injury lawyer, I feel confident that I can take on the domestic dispute just as I have taken on Opposition Members in this House.

Voyeurism (Offences) (No. 2) Bill

Alex Chalk Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 5th September 2018 Commons Chamber

[Stella Creasy]

As ever, I agree with much of what the right hon. Lady says. I think we need to say that the bigger thing she is talking about is misogyny. There are men out there who are hostile towards women and act accordingly. As a result, 51% of our population experiences harassment and a particular type of crime. At the moment, we cannot name, recognise and differentiate it, and therefore say, as we do with racially or religiously targeted hatred, that there is a premium on it. That is what the amendments would achieve.

This is also about what drives police behaviour, because if something is a crime, the evidence about it of course needs to be gathered. I have to admit to my honest frustration, as the first female MP for Walthamstow, where a number of people have tried to report their experience. Let me give the Minister some examples of the things we are talking about—the responses the women I have mentioned got back when they reported these crimes. In particular, in response to the woman followed down the street by a man demanding that she get into his car and threatening her with his behaviour when she tried to say no, the police said that the

“behaviour is only threatening, abusive, or insulting if the person…intended it to be so, or if he was aware…that it was so. The comments about his believing it to be a prank and being blown out of proportion would make that difficult to achieve.”

Let us think about that for a moment: the experience of the victim of this behaviour—their fear, their terror—means nothing because the man just said, “I was kidding”. We would not allow that for any other form of crime, so why do we allow it when it comes to men who harass women?

[Alex Chalk (Cheltenham) (Con)]

rose—

[Stella Creasy]

I will happily give way to my colleague from the Bill Committee.

[Alex Chalk]

As always, the hon. Lady makes a powerful point, but just because a defendant or suspect alleges that that was in their mind and therefore has a defence, it does not mean a tribunal of fact—magistrates or a jury—will believe it. Very often they say, “What a load of old nonsense. We’re going to convict you.” Does she agree?

[Stella Creasy]

I hesitate to say that the hon. Gentleman was not listening to what I said, but this was what the police said. Such a case will never get to a point at which a jury or somebody looks at the evidence base because we do not have a commitment to recording and recognising misogyny. Such a commitment would mean that the police would record and recognise it in the same way as racial or religious hatred. Before this case got to the test that the hon. Gentleman is setting, the police said that they would not investigate it further. The challenge facing women across this country is that we do not take this seriously: 66% of women have changed their behaviour to try to avoid street harassment as the police are not taking it seriously.

--- Later in debate ---

[Stella Creasy]

As ever, my hon. Friend is on the money about the importance of a victim-centred approach. We know from Nottingham—[Interruption.] I do apologise; I meant Nottinghamshire—sorry, Frodo. We know from those examples that recognition of the multiple kinds of intersectional hostility that women may face has been a powerfully positive experience, particularly for women from black and ethnic minority backgrounds.

Internationally, this is not a new idea. Spain, Croatia, Sweden, Estonia, Italy, Belgium and France all recognise gender and misogyny as a basis for hate crime. We are talking about replicating our current model for racial and religious hatred, and saying that we should be able to recognise similar hostility in the sentencing of particular crimes. We should be able to recognise the hate as it is.

There is already a framework that Ministers can use. The Crown Prosecution Service and the police already define cases involving hostility as

“any…offence that is perceived by the victim or any other person to be motivated by hostility or prejudice.”

The CPS does not have a legal definition of hostility; it uses the everyday understanding of the word. We all understand and recognise misogyny when we talk about ill will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike. We seek to echo existing protections and to put the protections that we offer someone for their religious or ethnic background in a position of parity with those that we offer them for their sex background.

I accept that amendment 7 is not a perfect amendment because it covers only upskirting, but upskirting is a classic example of an offence that happens within the context of misogyny. It is motivated by misogyny.

[Alex Chalk]

rose—

[Stella Creasy]

I will happily give way to the hon. Gentleman because I know he feels very strongly about this.

[Alex Chalk]

The hon. Lady is making a powerful point, but she has identified something that she is right to concede is a weakness. It would be very odd, would it not, if misogyny could be applied to the offence of upskirting but not to rape, sexual assault or revenge porn. Does she therefore agree that a solution might be to get the Law Commission to look at the matter in a more holistic way?

[Stella Creasy]

It is almost as though the hon. Gentleman read my mind—he is right. The data shows us that 15% of young girls say that they are being groped, and there might be somebody behind that and we want to record where it is happening. Clearly, this is not just about how people use mobile phones in the modern world. It is about the hatred towards women that exists among a small group of men in our society, and the damage that that is doing to our society as a whole.

I have said clearly that we would not press the amendments if we could have a meaningful and properly funded Law Commission review into all hate crime, including misogyny, looking at both existing and new legislation. I do not think that that is a lot to ask. I know that the Law Commission is open to looking at the matter and that it recognises the importance of new legislation. We required new legislation to extend such protections to disability and transgender identity.

--- Later in debate ---

[Liz Saville Roberts]

It is an honour to follow the right hon. Member for Hemel Hempstead (Sir Mike Penning) and his excellent speech, which summarised much of what I intend to say now; I hope he will forgive me.

I would also like to refer to new clause 1 and the need for a review by the Law Commission. With hate crime, we need to look at the rates of reports as compared with the rates of successful prosecutions. If those are low or if something appears difficult to explain, there should then be a consideration of why they are low. I suspect that in many cases we will find that we are trying to use common law or pieces of statute that are now dated and just not clear. Under the weight of criminal activity, it is sometimes very challenging for the police to know how they are going to deal with the matter if there is not a clear route ahead.

I want to speak in support of the amendments tabled in the name of the right hon. Member for Basingstoke (Mrs Miller). Amendment 3, along with amendments 1 and 2, make all upskirting an offence regardless of the motivation of the perpetrator. As I said, the legal clarity necessary to prosecute upskirting becomes blurred when the focus is directed towards establishing an answer to the question of why someone has taken an intimate photo of someone else without that person’s consent. Taking a private, intimate photo of someone else without their consent should always be illegal. The legislation as it currently stands ignores victims and their experiences and places its focus solely on the intentions of the perpetrators. It thus fails to capture all instances of upskirting, fails adequately to protect the victim, and fails to make all perpetrators liable for prosecution.

These amendments rightly take the issue of consent as the primary concern, although it is evident that the motivation of the perpetrator should not be completely disregarded; rather, it should be treated proportionately, as we do in other crimes. Serious sexual offenders, such as those who commit upskirting for the purpose of sexual gratification—rather than, say, for financial gain—should still be subject to notification requirements, and the amendment does not stop that from happening. The prosecution of an act of upskirting can examine whether consent was gained when the image was taken, and look at why the image was taken, in order to ensure that offenders are treated appropriately on conviction, with some being placed on the sex offenders registers as necessary, according to their motivation. The amendment does not seek to make all perpetrators of upskirting offences subject to notification requirements, but seeks to ensure that all perpetrators of upskirting offences are able to be prosecuted, regardless of the reasons behind their actions.

The Minister has justified the current drafting of this legislation on the grounds of existing legislation in Scotland, which it mirrors. It is entirely right that we legislate to ensure that upskirting is illegal, but simply copying the legislation as it stands in Scotland, which has recently been revealed to be in need of review, will not result in an effective or long-term solution. The CPS stated to us in Committee that, if the Scottish legislation were to be replicated in England and Wales, it would

“anticipate that most offending will fall comfortably within these categories”,

but the evidence from Scotland now shows that this is unlikely. Recent figures show that, in the first six years of the law being in operation in Scotland, just 21 prosecutions have taken place out of a total of 142 charges reported—only 15%. That is a clear example of the type of gendered legislation that is not resulting in effective prosecutions. It would be irresponsible for us as legislators to press ahead with this legislation when we have clear proof that many of the reports due to be brought to the police in its name would be unlikely to lead to successful prosecution.

[Alex Chalk]

The hon. Lady is making a powerful speech. I want to explore one thing, if I may. She is saying, I think, that someone should be guilty of an offence whatever the motivation. If a court were to find that the offence were committed for the purposes of obtaining sexual gratification, then the defendant should be put on to the register, but how, if clause 3 is deleted, will a court be able to establish what the motivation was? Is there not a danger that a jury would not be deciding it but instead a judge? Is there not some logic to ensuring that it will be the jury who will determine this matter, which has important consequences for the penalty that follows?

[Liz Saville Roberts]

I am grateful to the hon. Gentleman for his intervention. We need to have this debate in relation to these crimes. None the less, if we find ourselves in a situation where the motivation is the sole means by which we decide to move ahead or not, then we are providing a bolthole that will give people a defence. I hope that the Department will be discussing further with its counterparts in the Scottish Government exactly why the prosecution rates are so low there. If there are concerns that we are giving a line of defence on the grounds of motivation, we must be very careful. Are we prioritising the right issue, or is it, as I was trying to explain, rather a matter of proportionality when it comes to sentencing and knowing what the motivation is?

I will now speak in support of amendment 5, which seeks to close the biggest loophole in this legislation—namely, that it would be an offence to take an upskirting picture but not necessarily an offence to distribute it. When the amendment was introduced in Committee, the Minister explained that there were already statutes that might capture the distribution of such photos, such as section 127(1) of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988. Just as the motivation clause of this legislation means that not all upskirting would be outlawed, nor does the present legislation outlaw distribution in all cases.

We should not be passing legislation that only works to a certain extent. I appreciate that the Department for Digital, Culture, Media and Sport and the Law Commission are working together to look into the onward sharing of images as part of their review in relation to online abuse, but failing to include anything in this legislation about distribution risks creating a giant loophole that would facilitate the further distress of victims. It is an entirely predictable outcome that we can see from where we stand.

We have the opportunity to address this issue now, and we should seize it, instead of holding back. When the original upskirting legislation was passed in Scotland, it had to be followed up with additional legislation to cover the distribution of these images. The UK Government unfortunately appear blithely to be following the process of the original legislation in Scotland. I propose that we take the opportunity to learn from the pitfalls experienced there, rather than run headlong into the same complexities. I urge the Minister to commit to work with Scottish legislators to strengthen the Bill.

I encourage the UK Government to join colleagues across the House, who have made some excellent speeches this evening, in supporting the amendments. Otherwise, they risk waving through legislation whose excessive complexity and obvious loopholes will hobble it from day one.

--- Later in debate ---

[Lucy Frazer]

I am very grateful for what my right hon. Friend says. I have the highest regard for the work she has done and for the importance she places on this subject. When judges look at what people should and should not be criminally responsible for as a matter of law, they will look at the legislation we have passed. It is important that that is set out in the legislation and that the legislation is clear.

I will identify three reasons why accepting the amendments proposed by my right hon. Friend would make the law less clear, less certain and less advantageous. First, we believe it is likely that those who engage in upskirting for the purposes set out in the explanatory statement on amendment 3, which she outlined, will be caught in any event by the Bill as drafted. The hon. Member for Rotherham (Sarah Champion) said that we should think about a situation where someone takes an upskirting image to upload it to a website for financial advantage, and possibly catch it in the Bill. We think that it will be caught by the Bill as drafted, because in uploading the photograph to a website where people will pay for it, the person intends others to look at it to obtain sexual gratification. Equally, if someone took an upskirting image primarily for a laugh, they would likely be captured on the basis that the amusement was caused by the humiliation, alarm or distress that they intended the victim to feel.

[Alex Chalk]

Will my hon. and learned Friend give way?

[Lucy Frazer]

I will continue for the moment. If I have time, I will happily take further interventions.

The reason the Government do not favour widening the scope of the purposes is that a blanket liability risks criminalising those whom we do not want to criminalise. The amendments could bring in serious unintended consequences and risk bringing too many people within the scope of criminal law. As my right hon. Friend the Member for Basingstoke recognised, the amendments risk criminalising young children who are over the age of liability, which is 10, but who do not realise the impact of their actions and mean no harm when they carry out the act.

There is one further critical issue, which my hon. Friend the Member for Cheltenham (Alex Chalk) mentioned. If all the purposes were removed by amendments 1 to 4, there would be no need for the prosecution to bring forward evidence of the perpetrator’s motivation of sexual gratification. That could mean that those who posed a threat to the public were not put on the sexual offenders register, because the issue had not been determined in court.

My hon. Friend the Member for Christchurch and my right hon. Friend the Member for Basingstoke highlighted the small number of prosecutions that have been brought, and highlighted the fact that we anticipate only a few more in the impact assessment. The reason for that, as paragraph 29 of the explanatory memorandum makes clear, is that there are already laws that catch this activity. What the impact assessment identifies are the new offences that we think will be caught by filling this narrow gap.

The hon. Member for Rotherham rightly stated that we need to change the culture, not lock up more offenders, and education is an important part of that. We recognise, however, the value of the points that my right hon. Friend the Member for Basingstoke and others made, and therefore I am happy to confirm that the Government will review the operation of these offences after two years of their coming into force. This will include working with the police and the CPS and reviewing cases so far brought.

I will briefly deal with sharing. Amendment 5 would create a further offence of disclosing and sharing an upskirt image. We in the Department share the intention and desire to ensure that the sharing of images is robustly dealt with. The best way to do that, however, is not by way of an amendment to the Bill. Legislating in one area alone is not the right way forward. The Government are already looking at this wider issue. The Department for Digital, Culture, Media and Sport has already asked the Law Commission to look into online abuse.

The first stage of that review, which is an analysis of the existing law, will be completed in October, and I am pleased to confirm that following the completion of this first phase, the Ministry of Justice, working with DCMS, will ask the Law Commission to take forward a more detailed review of the law around the taking and sharing of non-consensual intimate images. This will build on the Law Commission’s review of online abuse and allow the Government to consider how to address this issue more widely, rather than just for upskirting images. As my right hon. Friend the Member for Basingstoke said, it is not appropriate to legislate in a piecemeal way.

My right hon. Friend also mentioned the Scottish changes in 2016. My understanding of them is that they were not specific to upskirting but created a separate offence in relation to the distribution of intimate images in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. This is the broader approach that we in government want to continue.

In his amendments, my hon. Friend the Member for Christchurch suggests that offenders under the age of 18 not be put on the sex offenders register at all. We are concerned that there will be offenders under the age of 18 who need to be on the register, and only if we put them on the register will we protect victims who need protection now and in the future. He also suggests that we need to toughen up and put everyone on it who is over 18. That will diminish the effect of the register and not allow police resources to be concentrated. For those reasons, and in the light of the fact that we are offering a review of legislation after two years and a review of offences more widely, I hope that hon. Members will not press their amendments.

Voyeurism (Offences) (No. 2) Bill (Third sitting)

Alex Chalk Excerpts

Committee Debate: 3rd sitting: House of Commons
Thursday 12th July 2018 Public Bill Committees

[Lucy Frazer]

I refer back to the evidence of both the Assistant Commissioner and the CPS. The Assistant Commissioner was clear that he could not imagine a circumstance other than the two purposes that are set out. If people take a picture that they think is funny, but the obvious reason that it is funny is that they are humiliating someone or laughing at the humiliation, it does not really matter whether the victim knows about that humiliation. The person is taking the picture because it is humiliating and people laugh at the picture because it is humiliating.

[Alex Chalk (Cheltenham) (Con)]

Does the Minister agree that in this offence, as with so many offences, it is possible that there is a blend of motives? Even if the principal motivation is a laugh, the fact that there might be a subsidiary or subordinate motive that involves humiliating, alarming or distressing the victim would be enough in and of itself to make out the offence under the proposed formulation.

[Lucy Frazer]

Yes, my hon. Friend is right, and I am grateful to have his expertise in Committee as a criminal barrister who is used to prosecuting offences. There is no need to show a primary motivation; it just has to be a purpose, and there may be many purposes. Equally, that would apply to commercial gain.

--- Later in debate ---

Undoubtedly, we want to keep the law up to date, given the prevalence of such issues and the development of technology, so we should continue to keep these areas under review. The Government are alive to the fact that new technology may facilitate the carrying out of degrading acts, but we want to fill a gap that we have identified and the Bill will put this offence swiftly on the statute book. In the circumstances, I urge the hon. Member for Dwyfor Meirionnydd to withdraw the amendment.

[Alex Chalk]

I rise briefly to oppose the amendments, although I recognise that they have validity and force. I am not suggesting that they are misconceived, but, on balance, the Committee should vote against if necessary, and I will explain why.

The first point is one that has already been made. We should not lose sight of the fact that almost everyone who has spoken about these matters recognises that the overwhelming majority of offending would comfortably have been caught. Although a point has been made about the Director of Public Prosecutions, it is worth considering precisely what she said in paragraph 2.6 of her written evidence:

“The Bill introduces purposes for which such activities are committed. We anticipate that most offending will fall comfortably within these categories.”

That is important—it is worth underscoring the point—because while one can imagine some individuals in court saying, “This was just for fun, wasn’t it? We were having a good time and it was just larks,” or equally a journalist saying, “My motivation was to get money,” it is always open to the Crown to say that that was a subordinate motivation that comes within the scope of the Bill. Therefore, it will be vanishingly rare, I suggest, for any defendant credibly to argue—with emphasis on the word “credibly”—that no part of his or her motivation fell within the scope of the Bill.

It is also worth considering the representations that were made in a wider context. Ryan Whelan, the lawyer representing Gina Martin, said in written evidence:

“However, most if not all of these cases”—

referring to other suggested motives—

“can be caught by the Bill as it stands. There is no requirement that the prohibited motive be the only motive and the offender who acts to humiliate, distress or alarm the victim is not somehow given a defence because he does those things for financial gain, a laugh or to exert power.”

The point I want to make is that, often, in life and with respect to the Bill, people do stupid and illegal things for a blend of motives. It is no good them standing in court and saying, “My primary motive is not within the Act. Therefore, I should walk out of this court scot free,” because most juries would give that short shrift.

[Stella Creasy]

This is a very interesting conversation. The only person who has mentioned how consent might influence such a decision was the Minister, in a very narrow context. The hon. Gentleman’s comments are all about the offender. If this is a victim-centred Bill, it does not matter whether somebody was having a laugh or was sexually gratified. It matters whether the person whose photo was taken said, “Yes.” Where does that come in his hierarchy?

[Alex Chalk]

The hon. Lady is absolutely right. Ultimately, we are trying to prevent offending so that victims can get justice. One aspect of victims getting justice is ensuring that something is put on the statute book as quickly and efficiently as possible. The key evidence, if I may say so—the centre of effort that came from Gina Martin’s evidence—is that she wants to see this on the statute book. For it to mirror the situation in Scotland has an added advantage.

The second point, over and above the inconsistency, is about the sexual offenders register, which is critically important for this reason. If someone is put on the sexual offenders register, that is major deal, because if they act in breach of that they will go inside. It is absolutely right, by the way, that that happens. If somebody commits an offence such as this for a sexual motive, it is quite correct that they should go on the sexual offenders register. Indeed, the overall tenor of the evidence is that the Bill is right to draw a distinction between those who commit the offence to humiliate or degrade and those who commit it to achieve sexual gratification.

[Liz Saville Roberts]

rose—

[Alex Chalk]

I will give way to the hon. Lady in a moment.

Most people recognise that only people in the latter category should go on the register. Let us imagine for a second that this amendment were carried. The defendant would say, “I’m not guilty of this crime. I want to have a trial, please.” He would go before a judge and jury and say, “My phone was operating by accident. I didn’t mean to do it,” and the jury would say, “Pull the other one. Guilty.” At that point, who would decide whether that person went on the sexual offenders register or not? The jury would not have been able to give any kind of verdict on the individual’s purpose when he took the photo. In other words, the judge might sit there and say, “I’ve no idea. It wasn’t really relevant to the offence. Am I, the judge, going to make the decision about what his motivation was?” How does that serve justice?

[Liz Saville Roberts]

I question the hon. Gentleman’s statement that the overwhelming tenor of the evidence is in favour of what he is arguing. What has been presented to us, particularly since yesterday, is quite strong, especially if we look at what both the victims lead for the Association of Police and Crime Commissioners and the Director of Public Prosecutions have said. In response to the balance of power in sexual offences, Dame Vera Baird QC, Northumbria’s police and crime commissioner, said:

“We do not regard a specific motive as the important characteristic of this behaviour. More important is that this behaviour is done without the consent of the person being photographed. Its impact is that it is a violation of her/him in an intimate way and is thus more closely related to rape and sexual abuse than might at first be considered. It appears to be based on the concerning notion that women’s bodies are public property over which any one has a right to take advantage, for any motive, if they can find a way of doing so.”

[Alex Chalk]

I absolutely accept that the purpose of consideration in Committee is to drill down on such matters and see how they would work in practice. No one should misread my representation on this; of course victims come first—that is why we are here and why the Government have moved so quickly to get the Bill on to the statute book. We recognise that there is a socking great hole in the law that needs to be filled. The question is how that can be done as effectively, efficiently and fairly as possible. Apart from anything else, if the view is taken in due course that we did not think about that in Committee, the people who will be most upset about that are the victims, who will think it bad law.

[Wera Hobhouse]

All of us here, and me in particular, recognise that it is important to get something on the statute book, and I am grateful that the Government have acted so quickly. At the same time, that should not be the overwhelming reason we cannot now consider amendments seriously and see whether we can create very good law. As has been said by my hon. Friend the Member for Dwyfor Meirionnydd, we should not have to come back in a year’s time because we have not really considered something enough and have created loopholes. There will be victims for whom justice is not done. Also, if I may say—

[Wera Hobhouse]

Thank you, Ms Buck. On the campaigner’s evidence, it became quite clear when I questioned her that she had not considered how other victims would feel, apart from what she had experienced.

[Alex Chalk]

I congratulate the hon. Lady once again on the vigour with which she has pursued this important cause.

With enormous respect, I do not think that anyone has dealt with the issue of the sexual offenders register. If we accept that not everyone should automatically go on it, the key problem with the amendment is that it does not answer the question of how a court is supposed to decide.

At the moment, the prosecution will say, “You, Mr Bloggs, are charged on an indictment with upskirting pursuant to section 67A(3)(a)—that is to say, sexual gratification.” The jury will consider the evidence that a photo was sent to a pornographic site, or about where it was stored on the defendant’s computer, or about what was found at his home, or whatever it is. They will convict the defendant, and the judge will say, “We will put you on the sexual offenders register and give you a sentence of 18 months in prison,” or whatever it is—simple.

If the amendment were made, what on earth would the judge be supposed to do? All the jury need to find is that the defendant intentionally used his phone to upskirt, so they would reject his ludicrous defence that somehow the phone operated automatically, but the poor old judge would raise his hands and say, “What am I going to do now? I have to make a decision that will be incredibly significant for protecting the public, potentially, and in changing this man’s life,” as he might be an idiotic criminal with no previous convictions and lots of personal mitigation. The judge would say, “All right, I will put him on the sexual offenders register.” But should a jury not decide that? The only way they can sensibly decide that question is if the Bill allows them to. I am concerned that judges will ask, “What on earth has Parliament done here? It has not assisted us, as judges, to do justice in the cases before us.” For those reasons, I oppose the amendment.

[Stella Creasy]

It is a pleasure to serve under your chairwomanship, Ms Buck, this fine Thursday morning. I rise partly in response to the hon. Member for Cheltenham. I apologise for being unable to listen to the second set of evidence. The Committee will have to forgive me; I am afraid I had a rather unpleasant medical emergency. Members will be pleased to see that I am back on my feet and trying to respond.

The amendments matter because of a couple of concerns that I want to put on the record. I understand the case set out by the hon. Member for Cheltenham from his experience. Let us take it as a given that everybody on the Committee wants the legislation to pass and be as good as it can be. The challenge and the difference is about whether it will meet that second test. The amendments address a concern that many of us have and that, if I am honest, the hon. Gentleman set out very well in how he talked about the crime and how he believes, given his experience as a criminal barrister, the legislation would be enacted. He did not at any point, even when I prompted him, say that the courts would consider the fact that the victim said, “No, I didn’t consent to this.”

The concern about setting out specific motivations is that it takes the power away from the victim to be the one who defines what happened, and that it is wrong. When we start to include particular categories, we take the conversation away from whether a woman such as Gina Martin, or a man who had a camera put up his kilt, said, “No,” or, when they found out what had happened, said, “That was not something I consented to.” Instead, we start quibbling about the motivations of the perpetrator. We all want to ensure that victims come first in the law.

[Alex Chalk]

The hon. Lady is absolutely right that victims should be in charge of their own bodily integrity, and that includes whether they are upskirted or touched intimately. However, on either formulation—the Government’s or that in the amendment—that is taken as read. In other words, it is a key part of the offence that it has to be shown that the victim did not consent. Of course, if the victim says, “Oh yeah, absolutely—I’m perfectly happy,” that is taken as read. It is the same in the Government’s formulation and in the amendment.

[Stella Creasy]

I thank the hon. Gentleman for his intervention, but he and I disagree on that. By putting in notions about the motivation of the offence, we automatically start queering the conversation away from that very simple point—whether we can prove that the person consented—and we start saying, “Hang on a minute; was it about sexual gratification?” or, “Hang on a minute; can we prove it’s a third, or indeed a fourth, party?”

If only this was about pornographic websites. We live in a culture in which people will take such pictures and engage in that behaviour not just to humiliate, but to entertain. I am sure that the hon. Gentleman is a regular reader of Heat magazine, and magazines such as Closer. He will have seen such pictures being used to entertain. The risk of setting out the motivations is that we create loopholes and take the focus away from consent. He and I agree that consent should be the primary focus. Saying it is taken as read is not the same as making it the primary, defining factor.

The right hon. Member for Basingstoke has been brilliant about identifying some of the challenges. By removing these requirements, we take the focus back to the victim. I worry, and I suspect that other Committee members worry too, that there will be a case in which somebody says, “It wasn’t for sexual gratification; I was making money, but doing so to entertain.” That is the world we live in now. We have voyeurism for the sake of voyeurism. There is no sexual element to it; there is simply the pleasure of seeing somebody else in an awkward position. It is not necessarily about humiliation or distress. Again, setting bars for what has to be proved would create an environment that none of us want.

[Alex Chalk]

If an individual who said, “I’m selling it to Closer magazine,” turned up in court and said, “Do you know what? I had no idea that it might humiliate, alarm or distress the victim”, does the hon. Lady really think that he is likely to be believed by a jury?

[Stella Creasy]

We are going to come on to some of the broader questions underpinning the offence. The sad truth is that this is not the first time that people have tried to humiliate, and to humiliate mainly women. This is not the first time that there has been a sense of entitlement to see, to judge and to talk about the privacy of a woman’s body. Do I have confidence that there would be people on the jury who would think, “Well, fair play”? Sadly, that is the society that we live in and we are making legislation in that society. I wish I could be with the hon. Gentleman in having confidence that in the 21st century people would recognise that treating women as pieces of meat for their entertainment is no longer acceptable, but, sadly, both case law and modern society tell us that we still have a long way to go.

The risk for all of us is that we create a loophole in the legislation, where people quibble about whether it was entertaining or not, rather than ask the simple question: did she say yes? Did she say she was happy for it to happen, because it was something she was doing for her career, or whatever? I wager him that we would have a case where we would have that kind of discussion, and ask him to think what it would be like for the victim in that circumstance to have motivation pored over in court, rather than the simple question of whether she said yes or no.

We are not pushing these amendments to a vote today, but we have to recognise that there is a risk that there could be a loophole. There is a risk that we are sending a message from this place that our focus is going to be all about the ins and outs of motivation, rather than on saying that, in 2018, consent and equality are what matters in our legislation and we will introduce legislation accordingly.

--- Later in debate ---

[Lucy Frazer]

The hon. Lady raises an interesting and broad issue. It is a conversation that we need to have and that it is good to have, but the question before us today is the legislation and the appropriateness of the measures we are putting forward in this Bill, which is about upskirting. It is a narrow issue. I recognise her frustration and desire to raise the issues she cares about in a broad sense in a narrow Bill, but as my hon. Friend the Member for Faversham and Mid Kent said earlier, as legislators—the Government, the Opposition and Parliament—we have an obligation to ensure that the legislation we are putting forward, debating and voting on is appropriate.

[Alex Chalk]

Although I have a significant amount of sympathy for the points made by the hon. Member for Walthamstow, is the point not that the law would be made to look extremely foolish if sex was a statutory aggravating factor in respect of an offence of upskirting, but not in respect of rape or sexual assault? In those circumstances, the inconsistency would bring the law into disrepute. Does the Minister agree?

[Lucy Frazer]

That is a good point to make, as my hon. Friend’s points generally are. When we legislate, it is important that we do so with care. We should legislate when we have done a proper review of the issues we are legislating on and bring in appropriate measures within the confines of the Bill under discussion.

Oral Answers to Questions

Alex Chalk Excerpts

Tuesday 10th July 2018 Commons Chamber

[Jim Shannon (Strangford) (DUP)]

3. What steps the Government is taking to improve offenders’ access to education and employment.

[Alex Chalk (Cheltenham) (Con)]

10. What steps the Government is taking to improve offenders’ access to education and employment.

[The Lord Chancellor and Secretary of State for Justice (Mr David Gauke)]

Reoffending costs society around £15 billion a year. We must support people’s rehabilitation through education and employment opportunities, both when serving their sentence and after. We launched the education and employment strategy in May, and our reforms will empower governors to commission bespoke, innovative education provision that meets the needs of their prisoners and links to employment opportunities on release. Our reforms will also engage and persuade employers to take on ex-prisoners via the New Futures Network. We have consulted governors and employers on proposals to increase the use of release on temporary licence to enhance employment opportunities.

--- Later in debate ---

[Mr Gauke]

The hon. Gentleman raises an important point. Whether through the probation service, through charities or in prisons, we need to ensure that offenders get support when they are released. A lot of that work can be done within prison, which is why the education and employment strategy is so important. We want people to be geared up to go into employment when they are released, because if they are employed, they are less likely to offend.

[Alex Chalk]

I warmly welcome attempts to improve the employability of those in custody, but that will work only if the training relates to jobs that individuals want and for which there is a need in society. What steps are being taken to ensure that the resources are properly targeted at what will work best?

[Mr Gauke]

My hon. Friend is right. Returning again to the education and employment strategy, our emphasis is on ensuring that training is focused on what will help people into work, and we are giving governors greater control and discretion to ensure that they are well placed to do that.

Voyeurism (Offences) (No. 2) Bill (First sitting)

Alex Chalk Excerpts

Tuesday 10th July 2018 Public Bill Committees

[Alex Chalk (Cheltenham) (Con)]

Q You, of course, and we share this feeling, want it to stop, right? But one of the things the Bill has to look at is the consequences for the individual. In the Bill as drafted, someone goes on the sexual offenders register only in the event that the offence was committed for the purpose mentioned in proposed new section 67A: sexual gratification. To put that in plain English, perverts go on the register but idiots do not. So, if someone is at a festival and they are just being idiotic and are humiliating and distressing girls, but that is their principal motivation rather than a sexual one, they do not go on the register. Are you comfortable with that? Do you think it strikes the right balance? Do you have any other views?

Gina Martin: I am pretty comfortable with that, but again, it is something we need to look at more specifically. I am here to give my evidence as a human, not to give strong evidence specifically on the Bill.

[Alex Chalk]

Q Sure, but what I am really interested in is you as a victim. Victims need to get a sense of justice, so they will want to have a view on whether the punishment fits the crime. We know that someone can go inside for this, so that is one aspect of it, but equally someone could go on the register for a long time, which is a big stigma and burden. Where do you think the right balance is struck? Do you think that the Bill has it broadly right, where it says that it is for people who are doing it for sexual motivations but not for those who are just being idiotic and offensive?

Gina Martin: Yes, because I think that if it is for sexual gratification it is a more serious offence, because it is often done multiple times and is a pattern of behaviour. That is where we go to more robust punishments. For me, personally, the Bill does strike the right balance.

[Alex Chalk]

Thank you.

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

Q We have already touched, forgive me, on the issue of motivation, but I think this is going to be critical to our considerations in this Bill Committee. As the Bill stands, it will need to be proven that there is either a sexual motivation or harassment. Do you have any concerns that a defence for people accused of this offence might be that it was accidental, and that that remains a loophole that needs to be addressed?

Gina Martin: I have spent enough hours sitting in enough meetings with my lawyer, Ryan, to understand that that is not something that needs to be worried about massively. Again, I am not a lawyer. There are ways of dealing with it and understanding case by case what happened. It is not the top concern that that would be an issue. That is my understanding.

--- Later in debate ---

[Wera Hobhouse]

Q Are you saying that you are just worried about the delay of the Bill?

Gina Martin: I am absolutely worried about the delay of the Bill. I do not think we should delay this protection being afforded to women in order to look at that, because it needs to be looked at in detail. Also, it would take one celebrity to table a report of outraging public decency to stop this happening. I have discussed that at length with the media and people this has been done to by the paparazzi.

[Alex Chalk]

Q On the paparazzi point, the Bill says that a person commits an offence if he

“does so with the intention”

that he, or another person he has passed it on to, will look at the image

“for a purpose mentioned in subsection (3)”—

that is, for sexual gratification or “humiliating, alarming or distressing” the person. In other words, if a pap takes the image and sends it on to somebody who thinks, “Hey, look at her! Look at what underwear she is wearing,” or, indeed, uses it for some perverted reason, do you think that that meets the concern that is being raised from your point of view?

Gina Martin: Again, I do not want to sit here and give legal advice, because I am not a lawyer, but there is an argument that although it does not say, “personal gain from publishing those images and other people gaining sexual gratification from them,” there is a way that the Bill covers that situation, because it covers all people in England and Wales. There is an argument that that could be covered as well in this Bill.

[Gillian Keegan (Chichester) (Con)]

Q I want to thank you specifically, because I had not heard of upskirting until you started this campaign. I think a lot of people in the country are much more aware of it now. Until I started reading this, I had not heard of down-blousing either. What is your view on down-blousing and including it in the Bill? Is it a similar offence and intrusion to upskirting? Is it as popular? Is it happening at festivals, as we speak?

Gina Martin: I have heard about it. My personal experience is that all of the hundreds and hundreds of stories that have come to me over the past year have been about upskirting. I have not received that many stories about down-blousing. I do not know why that is. Of course, I think it is horrible. I would like to see a million things sorted out and prosecuted against. This being an upskirting Bill, I have to focus on that issue, but thank you for raising it.

Voyeurism (Offences) (No. 2) Bill

Alex Chalk Excerpts

Second reading committee: House of Commons
Monday 2nd July 2018 General Committees

[Alex Chalk (Cheltenham) (Con)]

It is a matter of great regret that the hon. Lady is taking such a partisan approach. In 2009 a Labour Government were in power in the United Kingdom, and they did absolutely nothing. Will she take this opportunity to come together with Members across the House and celebrate that swift movement has been made to right some wrongs?

[Yasmin Qureshi]

I will come on to our working together collectively. As the Minister is aware, we do not object or seek to amend any part of the Bill. However, for the last eight years we have had a Conservative Government, and more specifically the Minister mentioned this problem last year. In any event, as I said, it baffles me that this is not a criminal offence. Of course, we will support it becoming one, but we cannot pretend it has not been ignored for so many years. That would not do justice to the victims, witnesses and other people affected.

Women have increasingly been speaking up, with one of the first being Gina Martin, who founded the campaign. Less than a year ago, she was at a festival in London with her sister when she was horrified to notice that the man behind her had taken a photo up her skirt. Shocked and distressed, she sought help from the police, but the law was not sufficient to ensure that they could help her. That is why a change in the law is required. Indeed, Dame Vera Baird, QC, from the Association of Police and Crime Commissioners, said that the current legislation

“is far from clear as there is no specific offence”.

We must remember that many women right across the UK are being affected. It can happen to women on public transport, in a park, at a concert or even just on a walk along a busy street, without the victim even realising that a photo has been taken.

In an article in The Guardian, Emine Saner tells the story of Lucy Parkinson, then 21 years old, who was shopping in Ealing, west London, when she heard an altercation behind her between two men. She said:

“I was crossing the road, and got stuck with a pack of other people at a traffic island…I was wearing a long-sleeved blouse and a white knee-length skirt.”

One man ran off and the other told her he had

“chased him away because he had seen him ‘upskirting’ me…I hadn’t even noticed it happening…and that’s the most unsettling part—in a city, you just don’t notice physical proximity to strangers. It could have happened a dozen other times too, for all I know.”

She continued:

“I felt unsettled, targeted, and helpless; there was nothing that could be done about what had happened, and nothing I could do to prevent it from happening again.”

It is impossible to judge how many women may have been victims of upskirting, although a quick internet search will bring up hundreds of sites and thousands of images. There may be millions more pictures on phones and laptops, taken on the streets, on escalators in shopping centres, on trains, at bus stops and in supermarkets, nightclubs and other places, that may or may not have been shared.

The Minister is aware, as Members will be, that there are endless web forums where amateur upskirters can exchange tips on how to get the best pictures. One was posted by a man who had made a “cam-bag”—a holdall with a specially made pocket with a hole for a digital video camera lens. The post says:

“Never forget to shoot their faces before or after to know which girls the ass belongs to...After the first…asses, they look very similar and you lose most of the fun. After upskirting them, either step back and wait for them to turn or step by them and shoot directly sidewise.”

Another poster on the forum said that he operates

“mostly at theme parks and tourist hotspots, or really anywhere that draws a large crowd of spectators and cameras”.

He finds

“an attractive young lady, preferably a teen for my tastes, and then I evaluate the situation.”

He would sit down next to a young woman and surreptitiously film her while pretending to fumble for new camera batteries in his bag.

On another site, one man posted:

“I’ve been upskirting chicks, mostly at clubs, for almost two years. The club I go to is a great spot, real crowded, strobe lights going, loud music, so no one notices me sitting near the edge of the dance floor and if a woman in a skirt ends up by me I stick the cam under and snap.”

Those stories makes one aware of how shocking and vile this behaviour is, and I am pleased that—eventually—it is to be outlawed. Again, we must thank the campaigners and hon. Members who have been pushing for that.

In conclusion, the scope for people taking upskirt photographs has clearly increased with the development of mobile phone technology. A gap in the law has allowed this to happen, and I am proud that for some time we have backed the campaign to bring this to legislation. I have a couple of technical questions, however. First, the legislation for this offence as it stands effectively has two limbs. One is that the act is done for sexual gratification. The other is that it could lead to harassment or distress. We are told that if someone is convicted under the sexual gratification limb, that can lead to their being put on the sexual offences register.

I have some practical questions. Would the prosecutors have to charge these things as two separate offences, counts, indictments or charges, or is it up to the justices in the magistrates court and the jury in the Crown court to decide which limb to convict the defendant on? Can the prosecutors draft it as one count with two parts? If a perpetrator is convicted on the first limb, but evidence shows that what has happened falls under the second, will the prosecutor be able automatically to amend the indictment and put a new charge in, or will they have to seek permission from the justices to do that?

Those are legal and technical questions, but they are important, because when a case comes before a prosecutor, they need to know whether to charge with one offence, depending on the circumstances of the case, or to charge with both and let the jury, in the Crown court, or the justices, in the magistrates court, know. Perhaps we can have some clarity on that.

--- Later in debate ---

[Alex Chalk]

It is a great pleasure to serve under your chairmanship, Ms Buck.

I will say a small number of things. First, I express credit where credit is due—it has already been done, but it bears repetition—to the hon. Member for Bath, to Gina Martin for her campaign and to the Minister, who has acted with great speed and decisiveness. To move so quickly is, if not unprecedented, certainly rare, and it is greatly to be welcomed.

I regret that the tone taken by the official Opposition spokesperson was so partisan, because the idea that the Labour party has been banging on about this since 2010 is simply untrue. Convention precludes me from going into any detail, but the first time the shadow Justice Secretary mentioned it was on 5 September 2017 following the campaign by Gina Martin, who should have the credit for the campaign. The first time the hon. Member for Bolton South East mentioned it was on 18 June 2018. I am afraid it is simply untrue to suggest that this has been a long-standing Labour campaign. The truth is that the blue touchpaper was lit by the campaigner Gina Martin, that the hon. Member for Bath moved quickly thereafter and that the Government then took up the cudgels.

The Bill strikes exactly the right balance. It is important to ensure that this pernicious conduct is properly outlawed, but also that the penalties are proportionate. Making it an either-way offence is a proportionate and appropriate step. A maximum of two years’ imprisonment is also proportionate and appropriate, although we in this House must when we talk about a two-year maximum, or 24 months, that if someone pleads guilty the maximum sentence is effectively 16 months and the maximum amount of time they could spend in custody is eight months. We must recognise that, but none the less it seems to me that it is in keeping with sentences for other offences, not least harassment under the Protection from Harassment Act 1997 and parts of the Sexual Offences Act 2003.

On the more difficult issue of notification, which I anticipate the Government will have grappled with, the balance has again been correctly struck. An offender will qualify for the notification requirements only if the offence was committed for sexual gratification and the relevant condition was met. Where it is an adult offender, the relevant condition is that the victim is under 18, which makes perfect sense—even if it is a one-off case of an adult who, for sexual gratification, upskirts a 16-year-old, it seems to me that notification should follow—or that the offender has been

“sentenced to a term of imprisonment”

and meets various other qualifying elements. Again, that makes the point that it must be a serious incident before it triggers the notification requirements. That is a difficult balance to strike, but I am entirely confident that the Minister has struck the correct one.

[Mrs Miller]

I note that my hon. Friend is another eminently qualified barrister and I am not—I have never studied the law—but is he not a little bit more concerned about the impact on the victim, rather than always looking at the motivations of the perpetrator? Surely the impact on the victim will be the same regardless of whether this has taken place for sexual gratification or not.

[Alex Chalk]

My right hon. Friend is absolutely right; the victim must be at the heart of this. Lest we forget, that is the whole reason for having this Bill. However, my view is that the court can take into account the impact on the victim in deciding what sentence is imposed. The Bill will ensure the notification requirements are engaged only for offences where the impact on the victim has been so great as to warrant a significant sentence.

Where I do agree with my right hon. Friend is on the potential to criminalise an individual’s motivation. I can well imagine circumstances where an individual goes to a festival, takes a whole load of photographs and says, “Look, I think this is disgusting stuff, but there’s a market for it. I’m going to put it online and sell it online. Frankly, whether other people get gratification from it, I don’t know. I certainly don’t want to humiliate or distress these individuals; I’m in it for the money.”

Suppose evidence to that effect emerged, such as an email that that individual had sent to the people who were going to upload those photographs to the internet. It would be rather odd if, in court, he was able to invoke by way of a defence the fact that his motivation had nothing to do with sexual gratification, because the email showed that he was not interested in that stuff, and that he had no interest in humiliating, alarming or distressing victims. If he were able to show that he was purely in it for the money, that would be a rather curious argument.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

The hon. Gentleman is making a strong argument, but would not the very fact of someone uploading such photographs to the internet or putting them in the public domain inevitably cause harm and distress, and would not anyone applying common sense understand that such an act causes harm and distress and therefore fulfils the requirements in the Bill? If it does not, I am genuinely interested to hear more, but I do not understand how it does not.

[Alex Chalk]

The hon. Gentleman raises an important point. Inevitably, it would turn on the evidence. Supposing such an act were prosecuted, the prosecutor would no doubt say, “We’ve got this email, which shows that this person’s intention was purely to be paid £100 for these images that he got at the festival, but he must have known in passing them on that their value was in the fact that they would lead to distress or gratification, even if that was not his primary purpose but a residual purpose.” Therefore, the prosecution should say, “Members of the jury, forget about that email. It’s irrelevant. Use your common sense.”

I suspect that, in the overwhelming majority of cases, the jury would exercise their common sense and justice would be done. My concern, however, is about whether that is really an argument we want to be having in front of a jury. If there were the potential to close that argument off, a number of judges and even jurors may welcome such clarity in the law.

I congratulate the Government and the individuals involved, including the hon. Member for Bath, on their timely, robust and proportionate approach.

--- Later in debate ---

[Lucy Frazer]

The hon. Lady makes an important point. In fact, her campaign and that of Gina Martin have done a significant amount to ensure that this offence, and now its potential illegality, has been brought to the attention of individuals and that they know about it. Often it is the fear of prosecution rather than prosecution itself that protects potential victims of crime.

Before I turn to the wider issues raised in the debate, I will touch on some points that have been made by various Members about the remit and ambit of the Bill. We have thought very hard about how the Bill should be put together, what the motivation should be, and when people should go on the sex offenders register. Some Members thought that motive should disappear, because it is the act and the victims we should focus on, not the perpetrator. It has been suggested to me that we should not need to prove motive, but reasonable justification. The concern with that is that a general principle of our law, particularly our criminal law, is that someone is innocent until proven guilty. To suggest that the prosecution should not have to prove motive, only reasonable justification, would reverse the burden of proof, putting it on the defendant, who is meant to be innocent until proved by the prosecution to be guilty.

In our system of law, the prosecution has to prove every element of the offence, and we say that should remain the case for this offence, too. The offence is criminal and serious, and the punishment we are proposing is serious. It is two years, with the requirement that in some circumstances people will go on the sex offenders register. We think it is appropriate in these circumstances that, as with other offences under criminal law, motivation is identified and proved.

Some Members suggested we should take a wider role in relation to the sex offenders register. We are concerned that we should strike the right balance between protecting victims and, where there are young offenders, protecting offenders. We need to strike a balance in terms of stigmatising them and putting them on the sex offenders register. They might need to be identified to the police as potential criminals for future sexual offences. We should not just expand the sex offenders register. Ultimately, if there were too many people on it, that would make it meaningless.

[Alex Chalk]

On the point about considering proportionality, is it not important to remember that if those on the sex offenders register fail to comply with its conditions, they can be guilty of an imprisonable offence? To go on the register is a serious matter.

[Lucy Frazer]

My hon. Friend makes an important point. Going on the sex offenders register is a serious matter both with what it requires and if it is breached.

I want to touch on a number of points that my right hon. Friend the Member for Basingstoke made. She has done so much individually and through her Committee to champion a large number of issues and protect and help the lives of individuals, particularly women. Together with others, she has raised a number of issues that I would like to deal with. I reiterate that the Government continue to be alive to how new technologies are facilitating the degrading treatment of women and children on the internet, but we also need to be alive to the fact that some of the questions posed are difficult and not straightforward.

A question was asked about whether revenge porn should be a sexual offence, which would have two consequences: anonymity for the victim, and the perpetrator’s going on the sex offenders register. When the offence was first introduced, there was not universal support for it being a sexual offence. In informal consultations, victims did not universally ask for it to be a sexual offence. They often said that they just wanted images taken down. The Ministry of Justice took the views of more than 100 members of the public, many of whom had been victims of or knew victims of revenge porn. Very few suggested that they want it to be a sexual offence.

There are also unintended consequences and risks that would need to be considered. If we made such things a sexual offence, it would require notification. That gives rise to the point we are making about people being put on the sex offenders register when their intent was not sexual gratification, given all the consequences that come from being on the sex offenders register.

If we do not make these things a sexual offence, but instead just give anonymity to victims, we would be creating an inconsistency in the law. We would be extending automatic reporting restrictions—that is, putting people on the sex offenders register and giving people anonymity —to offences that are not sexual. How does that play out for other crimes where the same argument could be made that anonymity would be helpful for victims coming forward? For example, in cases of domestic violence, blackmail, or reckless transmission of HIV, more people might come forward if there was anonymity.

So, if we just say, “We’re creating an offence. We won’t make it a sex offence, because of the issue with the sex offenders register, but we will give you automatic anonymity”, the issue arises of whether we are making a special case of this offence, and whether the case should be the same for other offences that are also not sexual offences? Also, there can be reporting restrictions in any criminal case at the moment, even if someone does not have automatic anonymity.

The question of deepfake was raised. This is a real—

[Lucy Frazer]

My right hon. Friend makes an important point. The offence being considered today is a sex offence; it is an amendment to the voyeurism Act and is therefore a sex offence. She highlighted the FGM provision on anonymity. However, the point I am making is that we can create exceptions to a rule, but we must acknowledge that they are exceptions, and once we create one exception, or two, the general rule starts to break down and we have to ask ourselves more, and difficult, and complicated questions.

My point is that this is not a straightforward discrete decision. The Bill is discrete; it addresses a gap in the law that needs to be filled. Many other Members are raising interesting points, but those points are complicated —they are complex—and they have implications for other offences and other laws.

[Alex Chalk]

I am sure that it was just a slip of the tongue, but does my hon. and learned Friend agree that this Bill is in fact amending the Sexual Offences Act 2003, rather than the voyeurism Act, hence the point she was making about this offence being a sexual offence?

[Lucy Frazer]

I am always grateful for my learned junior’s assistance.

I will now move on to deepfake. Many Members have mentioned deepfake, which is a distressing act that can cause a victim to feel humiliated and can have significant consequences. Cases have been prosecuted in relation to deepfake. There is a case of a City worker who superimposed his colleague’s face on to porn websites and then told the woman’s boss in order to discredit her. He was convicted of harassment. Although there is not a specific offence in relation to deepfake, it is possible, if there is continued misconduct, for someone to be convicted under the law as it stands on harassment.

Other Members have mentioned the issue of sharing photographs and there are already—

Privately Financed Prisons

Alex Chalk Excerpts

Wednesday 27th June 2018 Commons Chamber

[Rory Stewart]

The argument that I was making yesterday is that the recent evidence from our Department shows very clearly that people sentenced to short prison terms are more likely to reoffend than somebody with a community sentence—in other words, they pose a greater threat to the public at the moment of release. They also pose a destabilising factor in prisons: they are disproportionately connected to drugs and violence.

At the same time, as has been pointed out, we have an obligation to protect the public and be careful about who exactly we are talking about within this category. An enormous amount more discussion needs to take place. I would be very happy to sit down with the right hon. Gentleman to discuss ideas. This is not an easy one to resolve, but the data is driving us in a particular direction.

[Alex Chalk (Cheltenham) (Con)]

When it comes to fixing our prisons, what matters is what works. Does my hon. Friend agree that HMP Altcourse is an example of a private sector prison doing a good job? As we embrace the future, the approach should be about pragmatism, not dogmatism.

[Rory Stewart]

Absolutely. We are very much open to both types of ownership. While praising some of the performance of private sector prisons, I take this opportunity to reiterate that prison officers in public sector prisons are astonishing individuals. On Thursday, I was lucky enough to attend the prison officers’ annual awards, where we heard extraordinary stories about their work, courage, resilience and dedication on long shifts in some of the most challenging environments in this country. They need real tribute. Our public sector prisons are wonderful examples of public service.