European Union (Withdrawal) Bill

Alex Chalk Excerpts

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

[Paul Blomfield]

I was not about to go on to that, but clearly I am now. The hon. Gentleman knows that the charter was not binding when it was first adopted in 2000. It was made legally binding by the Lisbon treaty of 2007, which entered into force in 2009. It has, as the right hon. and learned Member for Beaconsfield pointed out, increased in significance, and the rights that it contains have become more visible and correspondingly more effective. Labour supported the charter then, and we support it now, because it has enhanced and improved European human rights protection, and by doing so it has significantly developed the quality of human rights protection in the UK. The wider point that the hon. Member for Stone (Sir William Cash) makes is not relevant to the issue under discussion.

[Alex Chalk (Cheltenham) (Con)]

The charter applies only when national authorities are implementing EU law. Does the hon. Gentleman not agree that if it is retained, it risks creating a confusing inconsistency by giving citizens powerful rights to strike down some pieces of legislation, but not others? Is it not a case of doing either the whole thing, or nothing at all?

[Paul Blomfield]

I will come on to this point, but the charter is key to ensuring that retained law is treated properly and that the same rights of enforcement continue in the future. Without the charter, those rights are significantly diminished and access to them is diminished.

Let me proceed with the point I was making about how the charter goes wider than the Human Rights Act and the European convention on human rights, which I hope I am right in saying the Government accept. As other Members have already pointed out, it was the Secretary of State for Exiting the European Union who relied on the charter in the case he brought before the High Court in 2015, against the then Home Secretary and now Prime Minister, when he was worried that the Data Retention and Investigatory Powers Act 2014 would impact on MPs’ ability to communicate with constituents confidentially. He cited the charter, and his lawyers argued that it went beyond the European convention on human rights and granted further protection. He relied on the charter precisely because it provided greater human rights protection than was provided for by UK law and even by the case law of the European Court of Human Rights.

Despite this, the Government have not indicated which decisions of the Court of Justice of the European Union under the charter they disagree with. Moreover, the explanatory notes to the European Union (Withdrawal) Bill justify the decision to exclude the charter from retained EU law by saying:

“The Charter did not create new rights, but rather codified rights and principles which already existed in EU law. By converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law, as provided for in this Bill.”

If that were the case, it would be fine, but it is clearly not the case.

Drawing on existing rights, the charter set out a new framework for human rights protection under EU law. The rights contained in the charter may have existed in EU law for decades—the Government are relying on that point—but that is not enough. The whole point of the charter was that nobody could verify those rights or their sources, and as the lawyers among us will know, identifying the source of a right is imperative in securing effective recourse. In his speech, will the Minister therefore clarify whether the Government have succeeded, where others have not, in comprehensively identifying every single source of these rights? If not, how do they plan to uphold the same level of protections for these rights once we have left the European Union, because a right without effective recourse is rendered effectively meaningless?

By compiling and codifying these rights in a single document, the charter in effect created new rights and certainly created new protections. In short, the charter is the most effective key to unlocking vital rights, and to fail to transpose it and make it operable in UK law is to lock away those rights and deny UK citizens the key to accessing them.

On the data protection point on which the Secretary of State relied—my right hon. Friend the Member for East Ham (Stephen Timms) raises it in his amendment 151, which we support—the right to data protection exists in various documents, such as directives and regulations, but it was only by virtue of the charter creating the expressed right to data protection in article 8 that we were given the right to be forgotten.

The rights extended by the charter are not only data protection rights. Such rights start in article 1, which includes the right to human dignity. This does not exist as an enforceable right in common law or statute law applicable to retained law post-Brexit. Will the Minister, when he responds, explain how this right will be enforced after exit day if the charter is not retained?

--- Later in debate ---

[Alex Chalk]

It is a pleasure to be able to say a few words this evening. May I say what a pleasure it has been to listen to this debate, which has been a paradigmatic example of what a Committee debate should be? It is not about the principles of whether we supported leave or remain; it is about ensuring that the legislation is in the best possible shape, because that is our job.

I want to confine my remarks to two areas. First, I will talk about amendments 139 and 302, tabled by the hon. Member for Wakefield (Mary Creagh) and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) respectively, regarding the right to seek Francovich damages post-Brexit; and then I will turn to the charter. On the first issue, it is axiomatic that, if the acts of the state that caused loss took place at a time when a remedy was available, it would be wrong for that remedy to be ripped away unilaterally. It is a principle of British law that past acts or omissions must be considered in the context of the law as it applied at the time. I have heard gratefully the Solicitor General’s suggestion that he might be looking again at the matter. I respectfully suggest that that would be warmly welcomed across the House.

I turn to the charter. I want to explain why I think—despite the fact that I supported remain and I do not resile from a single argument that I made—that the Government are right not to seek to retain the charter, and why to do so would create inconsistency and confusion. I speak as someone who values human rights and who has argued forcefully in favour of remaining part of the European convention on human rights. Indeed, I have said that to leave that would be a catastrophic mistake, and I am delighted that doing so has been taken off the table.

So why do I speak as I do? Before I explain that, I will set out why we must accept that the charter does add rights and it would be wrong to consider it inconsequential, although that is not dispositive. The right hon. Member for Leicester East (Keith Vaz) suggested that it was of no more legal effect than The Beano. That is not correct. Although it is true that there is some duplication, as compared with the ECHR, there are four ways in which the charter adds rights.

First, the charter creates some substantive new rights, which some have referred to as third category rights, including the right to dignity, the right to protection of personal data, the right to conscientious objection and guarantees on bioethics and independence for disabled people. Secondly, the charter widens the scope of existing rights in English law. One example is the right to a fair trial, which exists under article 6. The charter extends that right beyond the mere determination of civil rights and obligations and criminal charges to cover, for example, immigration cases, such as the ZZ case. Thirdly, it creates a new right to invoke the charter in respect of anyone with an interest. That is, of course, far broader than the convention. Fourthly, and most importantly, whereas breaches of the ECHR can lead only to a declaration of incompatibility, action in the case of a breach of the charter is far more muscular, because it allows the charter to take precedence over UK law and, effectively, disapply it.

Having set out all that, why am I not arguing in favour of retaining the charter? The simple reason can be summed up in one word: inconsistency. There is already an inconsistency in the law. A litigant in a case involving the implementation of EU law—that is, of course, the only category of litigation to which the charter applies—is armed with a powerful legal sword, which he can use to strike down the law. But when it comes to UK-derived law, no such legal sword exists, so the scope for absurdity becomes clear. Suppose the state were to pass a law that was a clear affront to human rights. Suppose it wanted to detain suspects without charge for six months or bring back the stocks, in breach of article 4 on torture and inhuman and degrading treatment or article 3 on slavery. In those circumstances, all the litigant could do would be to try to persuade the court to make a declaration of incompatibility; the law could not be struck down. Yet if the UK sought to enforce a law regarding personal data, it could be disapplied. Would that not create a bizarre inconsistency? Such an inconsistency already exists, by the way, but I suggest that it would become more egregious and more difficult to sustain post Brexit.

[Rachel Maclean (Redditch) (Con)]

I am following my hon. Friend’s arguments very carefully, and I am very pleased to hear him setting out why the rights he is talking about will be protected after we leave the EU. Does he agree that such inconsistencies will only further the interests of lawyers, rather than our constituents, after we leave the EU?

--- Later in debate ---

[Alex Chalk]

This is about not furthering the rights of lawyers, but about how we as a House ensure that there is a corpus of law that is consistent, serves the interests of our constituents and can be considered in an intelligible and consistent way.

My view is that the remedy for this inconsistency is not for us to bring in the charter lock, stock and barrel to apply to all law. We could do that, but it would not work because it would create great confusion respecting the existing European convention on human rights, which is of course incorporated into English law and British law. Instead, the time has come—not today and not tomorrow, but at some time in the near future—to look at granting British citizens a corpus of rights to sit alongside the ECHR, as a written constitution, as it were, that extends the Human Rights Act and allows citizens to apply their rights against any law in this country. The logical next stage is to have what is in effect a written constitution.

[Sir Oliver Letwin]

As a matter of fact, my hon. Friend and I may be the only two Government Members who believe in having a written constitution. I thought I was the only one—

[Sir Oliver Letwin]

There are three of us. I am very grateful. [Hon. Members: “Four.”] Let us not count. In any event, the number is small.

Does my hon. Friend agree that, in the interim, it would be a good step if the rights we identify, as a result of the Government’s analysis, as coming out of the charter—the third category rights—should in due course, although not of course in this Bill, be added to the Human Rights Act in a way that at least enables such a degree of entrenchment?

[Alex Chalk]

That is exactly right. I, respectfully, completely agree with my right hon. Friend. What has been such a benefit of this debate is that we have identified a third category of rights that Members on both sides of the House recognise there is a real public benefit in adding to the corpus of rights enjoyed by the British people. I entirely agree that we should look at whether they can be added pro tem to the Human Rights Act.

My fundamental point is that, if we are inching our way towards a written constitution, retaining the charter, which is in effect a proto-constitution, on the basis of an amendment debated for just a few hours in this Chamber is entirely the wrong way to go about it. For that reason and that reason alone, I am supporting the Government.

[Mr Simon Clarke]

I rise to support the Bill, particularly in opposition to amendments 8 and 46, as well as new clause 16.

I want to establish from the outset that I am not in any way cavalier about the concept or the subject of human rights. They underpin a free and just society, and all parliamentarians should be vigilant in their defence. Today’s debate underscores the significance of that. However, to quote Oxford’s Professor Richard Ekins:

“There is a fundamental difference between human rights and human rights law. The Charter is one way to attempt to protect human rights, a poorly framed and…inept way at that.”

Contrary to what the hon. Member for Bristol North West (Darren Jones) said, I do not need the charter of fundamental rights to be proud of my country.

There are a number of reasons why I believe the incorporation of the charter of fundamental rights into our law would be the wrong thing to do. The first concerns the scope of the charter’s application. Article 51 states:

“The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union…and to the Member States only when they are implementing Union law.”

Needless to say, once we leave the Union, we will not be a member state. As has been observed, many of the charter rights are necessarily contingent on our EU membership, and still more are directed not towards member states, but the Union institutions and their policies. We have already touched on that, and I will not dwell on it further.

Let us follow the logic that we should incorporate the charter into UK law. How would this work? There seem to be two possible scenarios. First, if we were to approximate the charter’s original application, we could amend it in such a way that it applied solely to retained EU law. That is the substance of the amendments. As my hon. Friend the Member for Cheltenham (Alex Chalk) has pointed out, that would lead to the bizarre situation whereby some parts of UK law would be subject to a different human rights regime. That is a recipe for confusion and disaster. Alternatively, we can amend the charter so that it increases its scope to cover all UK laws and institutions. I would hazard a guess that that is not exactly what our constituents were thinking of when they voted for Brexit.

Notwithstanding that basic point, either route would further complicate the relationship between the charter and the Human Rights Act. All transposed EU law will become subject to the Human Rights Act on transposition anyway, and having two parallel and perhaps in places contradictory constitutional Acts covering precisely the same issues in the same sphere of application would serve to undermine, rather than uphold, the rule of law. That is because charter rights, most seriously social rights, are so flexible and contested that they are vulnerable to a near infinite number of interpretations, which is precisely the problem.

When I worked for my hon. Friend the Member for Esher and Walton (Dominic Raab), he would cite a quote from Montesquieu that was absolutely on point:

“Nor is there liberty if the power of judging is not separate from legislative power…If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator.”

Where we fail to legislate the judiciary fill the gaps. Rights creep has been a key objection from our constituents for many years, and rightly so. In at least two cases, British judges have gone beyond ECJ case law, relying on the charter to disapply Acts of Parliament. In Benkharbouche, parts of the State Immunity Act 1978 which protected embassies from immunity against employment law claims were set aside. In Vidal-Hall, part of the Data Protection Act 1998 was overridden, overturning a limitation on what damages could be recovered. As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) said, this is properly a matter for the House to determine. The ECJ itself has overruled parts of the Data Retention and Investigatory Powers Act 2014 by reference to the charter—a decision that puts the application of the Investigatory Powers Act 2016 in serious doubt. That is not a small point. The process of striking down legislation under the charter goes far beyond the scope of the Human Rights Act, which allows the courts to make a declaration of incompatibility where there is a need to do so.

There is one final reason why we should resist charter incorporation, which is that to do so would probably be superfluous. We have heard from Ministers, who have struck a notably conciliatory tone, that the Government will provide detailed analysis of how each charter right will be addressed in a memorandum that is due on 5 December. If we are to go on to address what has been referred to as the third category of rights—rights that are not listed in the European convention on human rights and which are not rendered redundant by our leaving the EU—this process should be led by the elected House of Commons. That may very well be the right thing to do, but it is clear to everyone that retaining the charter is not the right vehicle by which to do it.

Lest we forget, the British public had no idea that the charter would evolve in the way that it has. Protocol 30 of the treaty on the functioning of the European Union states that

“the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles”.

We have heard about The Beano, and about former Attorney-General Peter Goldsmith, who said in June 2004:

“The Charter is a consolidation of existing rights...It is not a mine for new human rights in this country.”

Crucially, in 2008, on Second Reading of the EU (Amendment) Bill that ratified the Lisbon treaty, David Miliband, told the House:

“The treaty records existing rights rather than creating new ones. A new legally binding protocol guarantees that nothing in the charter extends the ability of any court to strike down UK law”.—[Official Report, 21 January 2008; Vol. 470, c. 1250.]

Our constituents were given an inaccurate prospectus of how the charter would evolve, although I accept it was made in good faith at the time. In the light of that, my position is very clear that the charter should not be incorporated into our law to go on evolving in that way according to the whims of unelected judges.

Tonight we have an opportunity to reassert one final time what this House has been told for the best part of 18 years: the rights under which we live should have their origin in this House and, ultimately, in the British people, under whose authority we serve.

Dangerous Driving involving Death: Sentencing

Alex Chalk Excerpts

Tuesday 17th October 2017 Westminster Hall

[Alex Chalk (Cheltenham) (Con)]

Will the hon. Gentleman give way?

[Kevin Brennan]

I will give way briefly, but I want to give the Minister a chance to respond.

[Alex Chalk]

The Sentencing Council does important and valuable work, but does the hon. Gentleman share my concern that in some of its guidelines—for the sake of argument, let us say assault occasioning actual bodily harm, for which the maximum is five years—the range that the Sentencing Council imposes for the most heinous offence stops well short of the maximum, effectively sending a steer to the judges that says, “Don’t ever sentence for the maximum”? Does he agree that that is a concern?

[Kevin Brennan]

I do, and I think that there are similar concerns in relation to the offence of causing death by dangerous driving. I do not advocate not having proper guidelines—we want consistency in sentencing—but it sometimes seems to victims that the sentence they are told the perpetrator is likely to get is a bit of a fiction, and that the tariff actually served is nothing like the maximum, even in a case such as the one I have discussed, in which there are horrific aggravating factors. Can the Minister address the questions posed by Sophie Taylor’s case about the frequency and circumstances in which a maximum sentence is given?

I want to make it clear that this is not about revenge; it is about justice. In the case that I am discussing, sentencing guidelines led to an outcome that outraged not only the victims’ families but the wider community. The Government need to be clearer about what they are doing to deter such crime. Knowing that a life sentence is a real possibility would be a start, as would increasing the likelihood of getting caught by funding the police properly; that is a vital part of it. The prospect that sentences could be increased on appeal when judges are too lenient is also important. I understand that out of 713 such requests in recent years, 136 have resulted in longer sentences, but not one has been for the offence of causing death by dangerous driving.

Sophie Taylor’s death was a horrible tragedy. Nothing will relieve her family’s loss. However, the perception that justice was not done because the maximum sentence is unreachable adds another burden for them to bear.

[The Minister of State, Ministry of Justice (Dominic Raab)]

It is a great pleasure, as ever, to speak under your doughty chairmanship, Mr Hollobone. I begin in the customary manner by congratulating the hon. Member for Cardiff West (Kevin Brennan) on securing this debate on sentencing for causing death by dangerous driving offences. I know that many colleagues here will have dealt with tragic cases in their constituencies; we have heard, movingly, of a couple of them. Those who have had that misfortune will know that reckless driving ruins lives and devastates families, whether the culprit is racing, talking on a mobile phone or under the influence of drugs or alcohol.

The hon. Gentleman has championed this cause tenaciously since the tragic case in the summer of 2016 in which Michael Wheeler and Melissa Pesticcio started a car chase that, as he described, left Sophie Taylor dead and her passenger Joshua Deguara seriously injured. I extend my deepest sympathies to Sophie’s mother Jackie, whom the hon. Member for Cardiff West described, and to Sophie’s wider family and friends. I cannot begin to imagine their loss. The technical and legal changes that we are making will not bring her back, but these reforms must try to deliver some reassurance and solace, through a greater sense that justice is being done. I also pay tribute to Joshua Deguara and his family, whose suffering has been immense. The case highlights the need for reform.

Thomas Crowther, QC, the Cardiff Crown court judge in the case of Sophie Taylor, said that

“that shattering of two families was completely avoidable. It was caused by…the self-righteous and jealous rage”

of the defendants, who were

“chasing her down to frighten her and teach her a lesson”.

The court sentenced Michael Wheeler to seven and a half years in prison and Melissa Pesticcio to six and a half years.

Such cases are far too common. The reforms that we have announced this week will come too late for the families of Kris Jarvis, John Morland and James Gilbey, to name the victims of just a few of the tragedies that have struck me as I have worked on proposals for reform. The hon. Members for St Helens South and Whiston (Ms Rimmer) and for Lewisham West and Penge (Ellie Reeves) gave moving accounts of tragedies in their constituencies; I pay tribute to them and extend my sympathies and condolences to the families. I appreciate the frustration and anguish that they must feel. I met Major Gilbey, James’s father, last week. It is right to pay tribute to his courage and strength, and to all the families who have campaigned for a change in the law. Numerous colleagues across the House have also raised cases with me and my predecessors at the Ministry of Justice.

We recognise that the law has too often prevented judges from handing down sufficiently long sentences for the very worst cases of dangerous driving, bearing in mind the severity of the harm and the anguish of the victims’ families. We have looked at the evidence, and now is the time to change the law. Although we cannot bring back lost loved ones, we can make sure that justice is done. Yesterday, we published our response to the consultation on driving offences and penalties relating to causing death and serious injury. The consultation, which closed earlier this year, received more than 9,000 submissions with different views on the offences and penalties. That shows the widespread public interest in reform and the concern about how the law has operated.

Based on the evidence, we propose three specific changes to the law. I hope the hon. Member for Cardiff West will welcome them, but I will also try to address his specific points. Even more importantly, I hope the changes will give the victims and the wider public a stronger sense that justice is being done. All three proposals received overwhelming support in the consultation.

First, we propose to increase the maximum penalty for causing death by dangerous driving from 14 years to life imprisonment. We want the courts to have additional powers to deal with the most serious cases in which life is lost. In 2016, the average sentence for causing death by dangerous driving was five years. In the last two years, three sentences of longer than 10 years have been imposed. That makes the case that those sentences are not attracting the level of seriousness that the hon. Member for Cardiff West and the Government think is due.

In answer to the hon. Gentleman, the point of the change is to send an unequivocal, crystal-clear message to the courts that they can and should impose a higher sentence—a life sentence—for the very worst cases. It is for the Sentencing Council to decide whether new guidelines are needed on this sentence or on any of the others that I will mention. He is right to mention that the ULS—unduly lenient sentences—scheme applies to those cases and that they will therefore be referred to the Court of Appeal if the Attorney General so decides. He rightly acknowledges that as politicians, we cannot and should not interfere with individual decision making, as opposed to the sentencing framework that applies in such cases.

In very serious cases in which there are multiple victims, in which the offender has previous convictions or in which their behaviour is particularly reckless and culpable—as in some of the cases described by the hon. Members for St Helens South and Whiston and for Lewisham West and Penge—offenders will face a maximum life sentence. The effect of that change is twofold. Offenders who receive a life sentence will serve a minimum period in prison and will be released only when the Parole Board considers it safe. For offenders who do not merit a life sentence, the court will have the power to impose a determinate sentence of any length. That will empower the courts to reflect the full severity of the worst offending and its devastating impact on victims and their families.

[Alex Chalk]

The Minister speaks about sending a powerful message. A powerful message is sent to the Sentencing Council too. Does he agree that for offences such as stalking, for which the maximum sentence has been doubled, that message has been reflected to a large extent in the Sentencing Council’s most recently published guidelines?

[Dominic Raab]

My hon. Friend is right. I remember his tenacious campaign on that subject from my early days as a Justice Minister. As well as empowering the courts, the change sends a message that will have an effect, right through the system, on the raw power available to a sentencing court. It will have a knock-on effect on the Sentencing Council and its ability to assess and consider whether further guidelines need to be provided. At the appeal level, there is also the ULS scheme.

In the time available, I will address the other key proposals. The second proposal is to raise the maximum penalty for the separate offence of causing death by careless driving while under the influence of drink or drugs. We recognise that although the driving in such cases may not amount to dangerous driving, the overall seriousness of the offence is the same, because of the combination of careless driving and the irresponsible decision to get behind the wheel under the influence of drink or drugs. Again, for the worst cases, we propose that the maximum sentence be life imprisonment.

Our third proposal will close a gap in the law. At the moment, if a driver who is driving carelessly injures another road user, passenger or pedestrian, the maximum penalty is a fine, even if the incident results in the victim being left with serious, debilitating or permanent injuries. The case that particularly struck me was that of Sophie Wilkinson, who was left in a coma with a life-changing set of injuries after a horror crash in 2007. We need the criminal law to cover careless driving that results in such severe harm and injury, so we will introduce a new offence of causing serious injury by careless driving. That offence will carry a custodial penalty and will sit alongside the existing offence of causing serious injury by dangerous driving.

Those are the three key areas of reform that we plan to implement as soon as parliamentary time allows. We will incorporate any further changes that emerge from the review of cycling safety announced by my right hon. Friend the Secretary of State for Transport last month, so that we have a consistent overarching framework for sentencing people who kill or cause serious injury on our roads. I am grateful for the time and effort that so many people, including the hon. Member for Cardiff West and the campaigning families, put into their responses to the consultation. No punishment in these cases can make up for the loss of a loved one, but we can make sure that justice is properly done.

Oral Answers to Questions

Alex Chalk Excerpts

Tuesday 5th September 2017 Commons Chamber

[Dominic Raab]

I share the hon. Lady’s desire to see the most robust sentences for animal cruelty. The Government keep the sentencing framework under regular review, and I am not sure whether she is aware that in January the Sentencing Council published new guidelines on relevant aggravating factors in animal cruelty cases.

[Alex Chalk (Cheltenham) (Con)]

In the past 18 months, three of my constituents have died in HMP Bristol, which has one of the highest numbers of self-inflicted deaths in custody. What reassurance can be provided that that prison is being given the scrutiny and support that it needs to get those figures down?

[Mr Gyimah]

Every death in custody is a tragedy, and I offer my condolences to the families of my hon. Friend’s constituents. We have increased the staffing level at HMP Bristol by 31 prison officers in the past year. I chair a weekly safer custody meeting with officials to drive forward improvements, and I review the details of every self-inflicted death to see how we might prevent others. We have also launched an internal review of our approach to safer custody, specifically in relation to mental health patients, and I would be willing to visit my hon. Friend’s prison in order to deal with this further.

Prison and Youth Custody Centre Safety

Alex Chalk Excerpts

Wednesday 19th July 2017 Commons Chamber

[Dr Lee]

The unit to which my hon. Friend refers has been set up by the Department to ensure that the recommendations are followed. I gather that this is the first time that such a unit has been created. With regard to youth justice and to women’s justice, the key is to build a network over time—it will take a long time—that allows people to be held closer to home, so that families, and mothers in particular, can stay in contact with their children. That is our intention. I have mapped out the country with regard to women’s justice and youth justice to ensure that what we bring forward fits the framework, so that we can deliver time in prison closer to home for women and young people.

[Alex Chalk (Cheltenham) (Con)]

There is a grave situation in our prisons, and the Minister is being typically frank in acknowledging that. One problem is the large cohort of prisoners languishing on indeterminate sentences for public protection. Will the Minister confirm that the Government are committed to getting that number down as quickly as possible?

[Dr Lee]

That has been a long-running issue in the prison system, and the answer to my hon. Friend’s question is yes.

Prisons and Courts Bill

Alex Chalk Excerpts

2nd reading: House of Commons
Monday 20th March 2017 Commons Chamber

[Sir Edward Garnier]

I agree with my hon. Friend. I have sent plenty of people to prison, some of them for very long periods of time. I wish that we were able to make sure that those who do not need to go to prison, or who need to be sent to another place, such as a mental hospital, could be dealt with in a more sensible, productive, efficient and effective way. The argument is not about whether criminals are good people and whether we should love them dearly and hug hoodies; it is about doing what is best for all of us and ensuring that the money raised through taxes—the money spent on the health service and education—is properly devoted and directed towards getting these people better so that they do not do it again. Most people who have their house burgled want to ensure that the person responsible is caught, stopped and dealt with but, secondly, they want to be sure that that person does not do it again. If all we do is feed the conveyer belt, we achieve nothing but a waste of money.

The crux of the problem that we face with prisons—it is not a new problem—is overcrowding. I wrote a paper called “Prisons with a Purpose,” having visited 65 of the 140 or so prisons, young offenders institutions and secure training units when I was shadow Minister for prisons between 2005 and 2009. It was abundantly clear then, as I suspect it is now, that our prison estate was woefully overcrowded. We cannot sensibly rehabilitate or reform prisoners, adequately protect the public, prepare prisoners for life outside and maintain a safe and secure environment within our prisons unless we deal with the problems of overcrowding. My right hon. Friend the Secretary of State and my hon. Friend the Member for East Surrey (Mr Gyimah), the Minister for prisons, are fully aware of that. They have been inside prisons and know what is going on, and they have to deal with the arithmetic of how to spend the money in the most sensible way, subject to the demands of the Treasury.

The task of the Secretary of State and the Minister is a difficult one. The aims that the Secretary of State has written into the Bill are good, but in six months or a year—or a suitable time period after the Bill has been enacted—I do not simply want a report from the Secretary of State or the chief inspector of prisons, welcome though such reports are; I want real, practical advances. It is one thing to write things in the Bill; it is quite another to ensure that they happen.

Most centrally, we must address the hideous problem of overcrowding because with overcrowding we get churn. A person who is sentenced to prison at Canterbury Crown court is sent that night to Canterbury prison.

[Alex Chalk (Cheltenham) (Con)]

Not any more.

[Sir Edward Garnier]

Or the nearest prison to that Crown court.

Oral Answers to Questions

Alex Chalk Excerpts

Tuesday 7th March 2017 Commons Chamber

[Sir Oliver Heald]

The hon. Gentleman is right to highlight the improper behaviour that occurs in some cases. It is right that the Solicitors Regulation Authority and disciplinary tribunals take a tough line on that. We have seen some recent examples of that.

[Alex Chalk (Cheltenham) (Con)]

Barristers and solicitors across the country are making a remarkable pro bono contribution worth around £600 million per annum, but they cannot do it all. Does the Minister agree that pro bono must be an adjunct to, and not a replacement for, a properly resourced legal aid system?

[Sir Oliver Heald]

I do agree with that, but with the caveat that we are changing the way in which the justice system works, so that it is simpler and more accessible. We are also using modern technology. We should look at how legal support dovetails with all that. So, yes—but we are moving forward with our plans.

Prison Officers Association: Withdrawal from Voluntary Tasks

Alex Chalk Excerpts

Tuesday 28th February 2017 Commons Chamber

[Mr Gyimah]

As I have said, strike action is unlawful. If prison officers withdraw their labour, that will make the regime even more restrictive, as the Chairman of the Justice Committee suggested. That is why we are urging hard-working prison officers to go back to work and make sure that prisoners can carry on with these regimes, whether in continuing important rehabilitative work or in making sure that our prisons are safe.

[Alex Chalk (Cheltenham) (Con)]

It is concerning that this action could lead to Tornado teams being withdrawn. Will the Minister confirm that contingency measures are in place to ensure that prison order can be maintained at all times?

[Mr Gyimah]

I am sure that our prison officers will always do their duty if there is disorder in prisons, even at this difficult time. We are obviously urging the POA to withdraw its bulletin, but we also make sure that we have contingency plans for times like this.

Attacks on NHS Staff

Alex Chalk Excerpts

Monday 27th February 2017 Westminster Hall

[Holly Lynch (Halifax) (Lab)]

May I join colleagues in saying what a pleasure it is to serve under your chairmanship, Mr Gray? I hope that right hon. and hon. colleagues from across the House are familiar with my “Protect the Protectors” campaign, and I am truly grateful to the many who have lent it their support. As part of that campaign, I have lobbied for protections that would cover all emergency service workers and NHS staff. I will outline what needs to change and how we should go about it.

My campaign started last summer after I spent a Friday evening in August on patrol in my constituency with West Yorkshire police. I joined PC Craig Gallant, who was single crewed and responding to 999 calls. When a routine stop quickly turned nasty, I was so concerned for his safety that I rang 999 myself to stress just how urgently he needed back-up. Thankfully, other officers arrived at the scene shortly afterwards to help manage the situation. Although, amazingly, no injuries were sustained on that occasion, I saw the dangers for myself and understood just how vulnerable all emergency service workers are, especially when they are out on their own.

Since being elected in May 2015, I have spent time shadowing all the frontline services in my constituency to understand the work they do and the pressures they are under, and to inform my work here on their behalf, but I confess that I am also the daughter of a retired police sergeant and a nurse. [Hon. Members: “Hear, hear!”] Thanks very much. Both my parents were subject to abuse in their roles as public servants, so I feel very strongly about this issue. I have done shifts with the emergency services—the police, the fire and rescue service, and paramedics—and spent time with doctors and nurses in A&E. I also spent a Friday night with out-of-hours mental health services and I will spend a day with the local search and rescue team in the next few weeks. May I take this opportunity once again to pay tribute to the work that they all do? Behind their uniforms, they are incredibly brave and dedicated individuals who, regrettably, face risks almost daily that they simply should not have to face.

Our emergency services and NHS staff routinely go above and beyond their duties to keep the public safe, and the law must convey in the strongest possible terms how unacceptable it is for someone to set out deliberately to injure or assault an emergency responder or NHS worker. As we have already heard, NHS Protect figures show that there were 70,555 assaults on NHS staff last year—a significant increase on the year before. A report published just before Christmas by Yorkshire ambulance service revealed that its staff face violence and aggression weekly. There was a 50% increase in reported incidents of verbal and physical attacks on staff, with 606 incidents reported in 2015-16. Richard Bentley, a paramedic in Leeds, told the BBC that he had faced three serious assaults in five years. He had been bitten, head-butted and threatened with a knife.

I sought to do something about that unacceptable violence directed at our most dedicated public servants by drafting a ten-minute rule Bill, which I presented in the Chamber earlier this month. The Crime (Assaults on Emergency Services Staff) Bill would extend protections to all emergency service workers and—crucially in relation to this debate—would cover paramedics, doctors and nurses.

The petition, which was launched on 22 December by LBC presenter Nick Ferrari—I commend Mr Ferrari and LBC for their role in this campaign—calls on the Government to make it

“a specific criminal offence to attack any member of NHS Medical Staff.”

However, in consultation with several bodies representing all the emergency services workers with whom I have spent time, I agreed that it would make sense to seek to amend existing legislation to make assaulting an emergency service worker or NHS worker an aggravating factor in existing criminal charges, for several reasons.

[Alex Chalk (Cheltenham) (Con)]

The hon. Lady is making a powerful speech. It goes without saying that assaults on NHS staff are appalling, but does she agree that our NHS staff want to know that any changes will make a meaningful difference to their safety and to enforcement? Given that the maximum penalty for assault of a police constable is six months, which is the same as the maximum penalty for common assault, I query whether a change in offence would actually make a difference. The key is enforcement. People want to know that if they are attacked, the police will come around, make arrests and throw the book at the people who did it.

[Holly Lynch]

I will come on to some of the problems that we identified with the stand-alone assault police charge, which led us to seek to amend existing legislation. The hon. Gentleman makes an interesting point, which I will come on to in more detail.

The petition states that for

“twenty years it has been a specific offence to attack a Police officer conducting their duties”

and refers to section 89 of the Police Act 1996, which deals with assault police charges. However, although that section sets a precedent for making assaulting a particular sector of public servants a stand-alone offence, it was precisely because of that legislation’s shortcomings that we sought to do things differently and more comprehensively.

Assault police charges are summary only, so are triable only in a magistrates court. As the hon. Gentleman rightly says, the maximum custodial sentence for even the most serious assault police charges under section 89 —so-called category 1 offences—is 24 weeks, with offenders more likely to receive a fine or community order. Even if someone is given a custodial sentence for a category 1 offence, the sentencing guidelines for section 89 offences propose three questions:

“Has the custody threshold been passed?…if so, is it unavoidable that a custodial sentence be imposed?…if so, can that sentence be suspended?”

To me, none of that reinforces the seriousness of the crime or, more crucially, acts as a deterrent. I have seen examples of repeat offenders who, due to the problems with the assault police charge, have effectively collected suspended sentences. I share that information simply to explain why I have arrived at my proposals, which I believe would make our emergency services and NHS workers safer in their roles.

My Bill would make offences including malicious wounding, grievous or actual bodily harm and common assault aggravated offences when perpetrated against a police constable, firefighter, doctor, paramedic or nurse in the execution of his or her duty or, significantly, against someone assisting such persons in the execution of their duty. It would therefore cover NHS staff more broadly, which my hon. Friend the Member for Heywood and Middleton (Liz McInnes) mentioned. The Bill would ensure that tougher sentences were available to the judiciary when sentencing someone convicted of assaulting an emergency responder or NHS worker. As I said, the sentences handed down to offenders convicted of such acts must reflect the seriousness of the crime and, more crucially, serve as a tough deterrent to dissuade others from even considering committing such violence towards NHS workers in the first place.

[Alex Chalk]

The hon. Lady makes a really interesting point, but the maximum penalty for causing grievous bodily harm with intent is life imprisonment in any event, and judges have sufficient sentencing powers to reflect the gravity of the aggravating factor of the attack having been on a public servant. Given that judges already have certain sentencing latitude, how would she change things?

[Holly Lynch]

I welcome the hon. Gentleman’s intervention. It is perhaps just an issue of clarity and the weight that comes with such uniformed service roles. Perhaps the problem is as simple as someone who is particularly angry and comes into an A&E department and lashes out at an NHS worker, not understanding that deterrent. We must explore how to ensure that that deterrent is understood by people who arrive at A&E departments.

--- Later in debate ---

[Alex Chalk (Cheltenham) (Con)]

It is a great pleasure to serve under your chairmanship, Mr Gray. I congratulate my hon. Friend the Member for Hertsmere (Oliver Dowden) on securing the debate and the hon. Member for Central Ayrshire (Dr Whitford), who made a powerful speech. The starting point, although it is perhaps obvious, bears emphasis. Assaults on NHS staff are appalling and people watching the debate will find it astonishing that they are so prevalent. The hon. Lady seemed to suggest that they are an occupational hazard, and that fact is as serious as it is appalling. Everyone in the House, as well as people beyond this Chamber, will share my consternation.

Another point that is obvious but bears emphasis is that the law must come down hard on people whose conduct is so despicable. However, it is important that the debate should not lead NHS staff, including those in Cheltenham general hospital in my constituency, to feel that what is proposed is mere window dressing. I imagine that they would want what I certainly want on their behalf: concrete action to improve enforcement and, picking up on a point made just now, to create a culture of zero tolerance. There may be any number of offences on the statute book, but without the resources to investigate them and the will to prosecute them, they are of no more than academic interest. We should focus resolutely on creating measures that will make a meaningful difference and inculcate the culture of zero tolerance.

I mention that because, as I said earlier, the offence of assaulting a police constable carries a maximum of six months in prison. That is the same as for common assault. I remind hon. Members that common assault is a battery where the harm that is caused is merely “transient or trifling”. If it is more serious than that, it becomes assault occasioning actual bodily harm, with a maximum penalty of five years. That can apply to a police officer or a person in the street, in the normal way. However, in my time in practice, when I was prosecuting offences of assault PC, the message that often came back from police officers was: “Our concern is that this offence is not taken seriously enough or prosecuted enough.” It was not so much that a defendant had been prosecuted for assault PC rather than for common assault; the question was whether assaults on police officers were taken seriously by being investigated and by charges being brought. It is the same in the case that we are considering. We must be clear: if we create a further offence, will it mean that the people in A&E think there is a better chance of securing justice? Shiny new legislation will not in itself achieve that. What is needed is the will and resources to make it happen.

That is the simple point that I wanted to make. Those who go out of their way to work in our public services, and who, notwithstanding the fact that they are abused, assaulted and jeered at, come back to show compassion, need to know that law and order are on their side. By all means let us consider creating another offence if that is what we want, but it should not be a fig leaf for the fact that there is something more important: when a member of staff in A&E has cause to make a complaint to the police that she has been spat at or abused, the police should turn up, arrest the individual and throw the book at them. As the hon. Member for Heywood and Middleton (Liz McInnes) said, ultimately the sentence must be a matter for the court, and in a fair society we would not have things any other way, and nothing we do here should diminish that key priority of enforcement.

--- Later in debate ---

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

I am pleased to serve under your chairmanship, Mr Gray. I thank my hon. Friend the Member for Hertsmere (Oliver Dowden) for introducing this debate and all hon. Members who have spoken. I also extend my thanks to LBC for its campaign on the assault of NHS staff, which has raised awareness of the issue.

I will start with where we all agree with the petition: any attack on NHS staff is completely unacceptable. More than 1 million people earn their living in the NHS. They are committed to providing health services and work incredibly hard in a high-pressure environment. They should not expect or experience aggression or violence at work. Patients and members of the public should respect NHS staff and must not be abusive or violent towards them. I will begin by looking at what we can do to ensure that assaults on NHS staff are dealt with seriously, much in the vein of what my hon. Friend the Member for Cheltenham (Alex Chalk) said. I will focus on prevention, better law enforcement and prosecution.

As with any kind of crime, the best and most important solution to violence against NHS staff is to prevent it from being committed in the first place, through measures to protect staff and by managing potentially risky situations before they escalate. Employers in the NHS are responsible for assessing the risk of violence to their staff, taking action to address those through prevention work and pursuing legal action when assaults do occur.

The NHS has introduced a range of measures to combat workplace violence, such as conflict resolution training and guidelines for lone workers. Again, as with any other crime, if NHS staff are attacked, the next solution is effective law enforcement. The NHS is working with the police and the Crown Prosecution Service to ensure that even low-level violence is treated seriously and that offences are prosecuted. Rigorous enforcement of the current law sends a strong message about the unacceptability of violence and makes staff feel safer and more confident to do their job.

What effective law enforcement means in the large and complex situation of the NHS is encapsulated in the joint working agreement on tackling violence and antisocial behaviour in the NHS between the police, the Crown Prosecution Service and the NHS, signed in 2011. It sets out steps to improve the protection of NHS staff; strengthen the investigation and prosecution process by improving the quality of the information exchanged; and improve victim and witness support. That protocol is currently being updated—for instance, to include aide-mémoires for the police, the CPS and NHS staff. The revised version is due to be in place in the coming months.

There is, frankly, a lot more we need to know about the circumstances of attacks. We have heard a number of examples in this debate, but what we do not know about all of those is, for example, whether the person was actually prosecuted. Are we talking about cases where someone’s elderly grandmother with dementia wakes up confused and lashes out against an NHS worker? We need to do a lot more work on what is going on. Centrally, we do not know who the assailants were in all cases, whether they were patients or members of the public or, if they were patients, what they were suffering from and what was happening to them at the time of the incident.

To delve into that further, I would like to extend an offer to convene a meeting between my hon. Friend the Member for Hertsmere, my right hon. Friend the Minister for Policing and the Fire Service, the Solicitor General and Lord O’Shaughnessy, the Parliamentary Under-Secretary of State for Health. We can then explore how to better build the evidence base.

I will now look at the appropriate law enforcement response in more detail. First, there should be no hesitation in involving the police as needed. To support that, the joint working agreement or protocol sets out guidance and best practice on contact and liaison between NHS staff and the police, incident reporting, the police response to incidents, investigations and victim-witness communication. Before we look at having a specific law, we need to ensure that the protocol is working as effectively as it should.

The next stage of the law enforcement solution to attacks on NHS staff in the criminal justice process is prosecution. At that point, and throughout the process, there is a particular emphasis on the seriousness of assaults on workers serving the public, including in the NHS. All cases referred by the police to the CPS are considered under the code for Crown prosecutors. Under that code, prosecutors must first be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. If there is, prosecutors must then consider whether a prosecution is required in the public interest. The relevant section of the code for Crown prosecutors says:

“A prosecution is…more likely if the offence has been committed against a victim who was at the time a person serving the public.”

The protocol states:

“In all cases, the fact that an offence has been committed against a person serving the public will be considered an aggravating factor. There is a strong public interest in maintaining the effective provision of healthcare services and the CPS should always consider whether the individual incident has further aggravating features that may influence a decision on disposal.”

If the evidence is there and the code is satisfied, the CPS will prosecute.

When an offender is convicted, sentencing guidelines specify that an offence committed against those working in the public sector or providing a service to the public is an aggravating factor. Courts have a statutory duty to follow those guidelines and, as such, offenders who assault someone providing a service to the public could face a higher sentence than that imposed for assaults committed in different circumstances. In response to the petition, I have been in touch with the Director of Public Prosecutions to ensure that where these cases appear before the courts, the status of a frontline public sector worker is clearly drawn to the court’s attention as an aggravating factor.

[Alex Chalk]

May I thank the Minister for what he said about bringing that fact to the court’s attention? A victim impact statement can be provided to indicate the impact that a crime has had on the victim. It is critical the court understands front and centre that if the victim is a public servant, the court must treat the case more seriously and punish more severely as a result.

[Mr Gyimah]

My hon. Friend makes a forceful point. That is precisely what the engagement with the Director of Public Prosecutions is meant to achieve, and I would like to involve my hon. Friend the Member for Hertsmere in those discussions.

Prevention and effective law enforcement, through collaboration between the NHS, the police and the CPS, are the best solutions to the problem of attacks on NHS staff. This debate is about a specific criminal offence. As has been mentioned, there are already comprehensive provisions in criminal law for dealing with a wide range of attacks and assaults. The relevant offences include common assault; assault occasioning actual bodily harm, where the injuries are more than superficial; wounding or inflicting grievous bodily harm; and wounding or causing GBH with intent. All those offences cover every victim, whatever their occupation. Depending on the particular offence and the seriousness of the criminal conduct, the penalties available to the courts range from a maximum of six months’ imprisonment, a fine or both for common assault, through a maximum of five years for ABH or GBH, to a maximum of life imprisonment for wounding or causing GBH with intent.

Given the current offences framework and sentencing guidance, which make provision for an increase in sentence to be considered where an assault victim is a public sector worker, I am not persuaded that there is a need to create a specific offence for this group of workers. Of course, as my hon. Friend the Member for Hertsmere pointed out, some specific offences of assault apply to particular occupation groups, such as police officers. As the Minister responsible for prisons, I am aware of the specific offence of assault against prison officers.

Prison Safety

Alex Chalk Excerpts

Thursday 15th September 2016 Westminster Hall

[Alex Chalk (Cheltenham) (Con)]

On deliverability of the ambitious and welcome programme, does my hon. Friend agree that a healthy and safe ratio between staff and prisoners is vital and that ultimately we must grasp the nettle? There must either be more prison officers or fewer prisoners to get the ratio back into equilibrium.

[Robert Neill]

My hon. Friend is right. There is no other solution but to grasp the nettle. Some will assert that we should increase the staff, and they have to grasp the nettle that that means more public spending. I do not think most of the public are in the mood for that, but I think the public mood towards prison reform has changed markedly in the last 20 years. It has changed during my time in the House. It was apparent in debates during the last Parliament that people are, rightly in my judgment, much more open-minded now about the need for prison reform. No one is beyond rehabilitation—that is an exaggeration: precious few people are.

I spent 25 years practising at the criminal Bar. I dealt with some very nasty people indeed and some dangerous people, some of whom needed to be locked up and kept away. I also dealt with some stupid people. [Interruption.] I leave aside members of my profession or even the judiciary, but I dealt with some people who were stupid and got themselves into trouble because of that. I dealt with people who did not have an education or skills and who made certain choices. They got their lives into a mess through drugs, alcohol and disrupted families. I suspect that they make up the majority. Whenever I visit the women’s estate and talk to women prisoners, I find that the vast majority of one kind or another have certain issues in their lives—often mental health problems and related issues.

We cannot treat this matter in a simplistic fashion. Simply saying, “Keep the numbers up and just produce more staff” makes no sense to my mind as a Conservative given the need to keep public spending under control, because we would be giving a demand-led blank cheque; it also makes no sense in terms of the ambitious agenda for social reform that the Prime Minister, the Secretary of State, the Minister and I believe in.

It seems to me that the answer to the question from my hon. Friend the Member for Cheltenham (Alex Chalk), based on his own considerable experience as a practising barrister and his having seen exactly the same people, is yes, we must grasp that nettle. It is pretty obvious to my mind that the answer is a greater emphasis on rehabilitation, education and reform, and that is why getting safety right is all the more critical.

I think that all or almost all of us share the same objectives, but the question now is about willing and providing the means to achieve them, and that is what our report was about. I hope that the Minister will tell me that the Government response was a measure of work in progress. I quite understand that when a new ministerial team come in, they need to reflect, take stock, review priorities and consider, in the light of the circumstances that they have inherited, the shape that they want progress to take, but if he told me that, it would be further reassurance that the progress will be genuine and speedy. The Secretary of State talked about reform proceeding “at pace”. Can we have a bit more flesh on the bones of what is there? We ask that in a spirit of complete good will towards the Government’s intentions.

--- Later in debate ---

[Robert Neill]

When I was a Minister, I was sometimes portrayed unfairly in the press, so I shall adopt a practical approach: let us see what happens. But I do think it important that we do not, any of us, send any signals that reform is less pressing or less important. Were that to be the case, it would be disappointing and, I think, an error. I am conscious of the clarification that the Secretary of State issued after her appearance before the Justice Committee, and I will take her at her word on that, but we need the measures that we talked about to be brought forward swiftly. If Brexit means Brexit, to adopt a phrase, pace means pace, but pace requires detail in order for there to be credibility in how things are delivered. That is the approach that I take—we want to be constructive and assist the Government on what I think is the right path, provided that it is followed through consistently.

I shall touch on just a few more matters before I finish so that other hon. Members can speak—this is a well-attended debate. First, I have referred to the matrices showing that everything is going in the wrong direction at the moment, such as on assaults, self-harming and deaths in custody. All those figures are going the wrong way. The data are set out well in a report that is readily available in the public domain, so I shall not cite a raft of figures, because I suspect that that would not add a great deal, but the trend is clear.

Secondly, despite genuine efforts by NOMS to recruit staff, the number of new staff coming in is significantly offset by the lack of retention. The problem is that we are very often losing some of the most experienced officers—some of the coolest heads. When there are difficulties to do with safety, such as dangerous situations arising on a wing, one wants to have experienced prison officers around to deal with it.

The fewer there are, the greater the risk that things will escalate rather than being brought back under control, so there is a direct link between retention and safety, which we highlight in our report. That is one thing that the Government need to do more to address. We are not convinced that NOMS has a deep-seated understanding of what causes that lack of retention, why recruitment is increasingly difficult and what underpins both those factors, so we need more flesh on the bones of that.

Let me deal briefly with some other matters. Steps have been taken—again, let us recognise that—on the possession of knives and new psychoactive substances in prison, but I am not sure that we are fully on top of that issue, either, particularly in relation to those new substances. The issue is one of technology: the ability to fly in substances and a raft of other things with drones is enormous.

Of course, that brings us back to the circular issue referred to by my hon. Friend the Member for Cheltenham. If, as we have seen on our visits, people are locked up in their cells for 23 hours a day, and if there are illegal substances in prisons, prisoners’ ability to make use of them is all the greater given their close confinement and the growth of gang culture and peer pressure. The more that people are out of their cells and doing something purposeful, the better it is to combat the misuse of substances. That cannot be done sustainably with the current prison population, which is a very important issue.

The direction is right, but we need to be more vigorous and radical in tackling some of those important issues. That brings me back to a point made by my hon. Friend the Member for Henley (John Howell): we are disappointed about some of the detail in the Government response. We called for the Ministry and NOMS jointly to produce an action plan on prison safety, addressing the underlying factors behind violence, self-harm and suicide. We said that that plan should include preventive and punitive measures, because those two things have to be in the toolbox of any prison governor. We also wanted objectives and indices. The Secretary of State is right to commit to a prison safety and reform plan—that is good—but it is the missing detail that people need to see urgently.

We asked for quarterly reports on progress on the plan, rather than the six-monthly reports suggested in the Government response, not as a matter of caprice but because we wanted the reports to coincide with the publication of the quarterly safety in custody statistics. Otherwise, frankly, they are pretty meaningless. The whole point of transparency and scrutiny is to have the two sets of figures together so that we can compare and contrast. That is why I urge the Government to rethink their response on that matter. The information is collated, and there is no doubt that it is available—I am sure it is available to Ministers on a regular basis. There is no practical reason at all why it cannot be made available in the way we suggest in our report. It is not an expensive or a difficult ask, in other words.

We are also looking for specific information on incidents of disorder in prisons, including the deployment of the national tactical response group; a more comprehensive set of data about staffing; and performance ratings for individual prisons. We do not know yet whether the previous Secretary of State’s league table initiative will continue, but certainly we want performance ratings for prisons. I accept that it is not always easy to make complete comparisons, but on safety it is, actually. We can compare data on safety even if we cannot do so for rehabilitation in a particular prison, so there is no reason why those data cannot be available.

The same goes for data on the average number of hours each day that prisoners spend locked in their cells—I stress that in particular. I mentioned this earlier, but the amount of time that people spend locked up is entirely linked to safety levels. Boredom, the abuse of substances, the internet and a raft of other things, and the peer pressure of groups of people locked up together in a confined space for long periods all contribute directly to a deteriorating safety environment.

[Alex Chalk]

Is it not also the case that meaningful rehabilitation does not take place inside a prison cell? It is only when people are outside their cells and engaging in courses—be they on anger management, substance abuse or whatever—that they can truly come to terms with the problems that may, in some cases, be the reason why they got into prison in the first place.

--- Later in debate ---

[Philip Davies (Shipley) (Con)]

It is always a great honour to serve under your chairmanship, Mr Stringer, and to follow the right hon. Member for Delyn (Mr Hanson), for whom I have a great deal of respect. As others have done, I commend our Chair of the Justice Committee, who does a great job in martialling sometimes disparate viewpoints on the Committee.

When I say “disparate viewpoints”, what I am really referring to is me. As on many issues, I tend to have a very different view of the world—particularly the world of prison and sentencing—from that of many of my colleagues, so I might put a slightly different viewpoint from theirs. That is not to say that I do not have a great deal of respect for their views and expertise on these matters; we just happen to draw different conclusions.

One thing that never gets talked about with regard to prison safety that I want to talk about, and that I raised with the Secretary of State on her initial performance before the Justice Committee last week, is the change brought in under the last Labour Government: it has done immense harm not only to public confidence in the criminal justice system, but to safety in prisons.

That Labour Government passed a law, and this is a welcome opportunity to make a public service announcement to the many people who are not aware that it is on the statute book. The law stated that everybody who had reached halfway through their prison sentence had to be released from prison, irrespective of how disruptive they had been and whether they were still considered a danger to the public. Those prisoners have to be released halfway through their sentence.

The law had nothing to do with any great rehabilitation revolution, or with making our prisons or streets safer; it was introduced because the last Labour Government got themselves into a crisis over prison numbers and could not meet the capacity. They were desperately looking for ways to reduce the prison population. Anything would do.

One method they used was letting everybody off 14 days before the end of their prison sentence. The second method was to say that people had to be, by law, automatically released halfway through their sentences. It does not take a genius to work out that that will have—and this has proved to be the case—a negative impact on safety in prisons.

If prisoners have a six-year sentence, become eligible for release after three but could still serve the whole six years, the chances are that there will be an incentive for them to behave themselves in prison, get their heads down, work hard and do the things that are asked of them; if they do, the parole board may well let them out of prison when the three years come up. If they know they will be released from prison after three years no matter how well or badly they behave, what on earth is the incentive to behave in prison? There is none at all. It does not take a genius to work out that that is pure common sense.

If the Government want to get to grips with safety in prisons—and, as a by-product, instil a bit more public confidence in the criminal justice system—they must deal with that issue. They must repeal that terrible law and say to prisoners once again, “You become eligible for release halfway through your sentence, but only if you are considered to be safe to release to the public and if you have been behaving yourself in prison.”

I remember when the last Labour Government introduced this law—the Conservative party was apoplectic. What have we done in our six years in government? Absolutely nothing. That is a disgrace—certainly for the millions of people who have gone down to the polling station to vote Conservative at a general election. Those people would expect a Conservative Government to deal with this, and I hope the Minister will not only address the issue in his remarks but will act on the situation in his time as prisons Minister.

[Alex Chalk]

My hon. Friend is setting out his characteristically robust and principled position, with which I do not disagree. But even if that welcome repeal were to happen, is not the difficulty that it would lead to such additional pressures on the prison system that, frankly, we would not be in a position to absorb the extra numbers at this juncture?

[Philip Davies]

I understand my hon. Friend’s point, but he is looking at it from a perspective different from mine. My view is that we should not manage the prison population to fit an arbitrary figure that we have decided is the limit that we will allow in prison; we should imprison the people who should be in prison, and it is the Government’s job to build the capacity in the prison system to cope with those people. That is the bit on which the Government need to get a grip.

I was going to come to this later but, as we are on the subject, I will deal with it now. One area on which I happen to disagree with the Chairman of the Select Committee, although it pains me to do so, is the size of the prison population. We have to address the myth that has been perpetuated that the UK has a very high prison population. The fact of the matter is that we do not, and I will explain why. Yes, the absolute number of more than 80,000 represents a high prison population, but the UK is a very highly populated country so of course we have a high prison population. That is a meaningless measure.

If we look at the number of people in our prisons as a proportion of the population as a whole, we are not at the top of the table by any means, but I concede that we are above average. We are in the highest quartile but, again, it is a meaningless measure. The only meaningful measure of prison population is the proportion of criminals that we send to prison. In other words, for every 1,000 offences committed in the UK how many people go to prison? That is the most meaningful measure of whether we send a lot of people, or not many people, to prison. Comparing those figures with the figures for other countries across the world shows that we have a very low prison population. For every 1,000 crimes committed in the UK, we send some 18 people to prison. I challenge anyone to name four or five countries that send fewer people to prison, because they will be hard pressed to do so.

Our prison population is very low, so we have to end the myth that has been built up by these prison reform groups, which frankly just do not like anybody being sent to prison. We have to address the myth that has built up over the years that we have a high prison population. We send very few people to prison. Everyone knows that it is difficult to be sent to prison in the UK. People get community sentence after community sentence—the only people sent to prison are either very persistent offenders or very serious offenders. Courts bend over backwards not to send people to prison. We have to nail that myth.

Contrary to what my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) said in his opening remarks, I do not think that public opinion is that we should have fewer people in prison. I do not think public opinion has moved an awfully long way. Clearly, my hon. Friend is much more expert than I about public opinion in Bromley and Chislehurst, and I bow to his superior knowledge, but I invite him to come up to Shipley. He can knock on the door of any 100 houses he wants to ask people, “Do you want to see more criminals or fewer criminals in prison?” I suspect that a number in the high 90s would say that they would like to see more criminals in prison, not fewer. I accept that Bromley and Chislehurst may differ, but I am here to represent Shipley.

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[Victoria Prentis (Banbury) (Con)]

I apologise that—with your permission, Mr Stringer—I have to leave before the end of the debate so I will not be here to hear the closing speeches. Members of the Justice Committee, and indeed anybody who has met me for longer than 10 minutes, will know that very few things could drag me away from a debate on prison safety, but I am afraid a meeting about the Boundary Commission and boundaries is one of them. I thank hon. Members for their indulgence on that score.

Serving on the Justice Committee is an enormous privilege and most of the time it is a pleasure. However, as is clear from the passion of Members’ contributions today, it is not always a pleasure, because we have heard some very disturbing facts and figures about safety in our prisons. I am not a stranger to the Prison Service, having conducted litigation on its behalf for many years—it is nice to see some former clients in the Box today. I know that the Prison Service is staffed by many dedicated individuals, who work hard to ensure that people in their custody are safe, and to rehabilitate them. I also know that the spotlight has never shone so brightly on what is happening inside our prisons.

Although our predecessor Committee felt that the Government and the National Offender Management Service had underplayed the seriousness of the situation, our Committee does not now feel that is the case. This year, the former Prime Minister and former Member of Parliament for Witney gave strong leadership in his speech on prisons. Both the former Secretary of State, my right hon. Friend the Member for Surrey Heath (Michael Gove), and the former prisons Minister, my hon. Friend the Member for South West Bedfordshire (Andrew Selous), were aware of and open about the appalling state of prison safety.

The reform programme is bold and motivated by all the right reasons. In our report we praise the considerable efforts made by the Ministry of Justice and NOMS to alleviate the situation, but political will is very far from being enough. The previous Secretary of State’s response to our review was characteristically robust; he acknowledged the extent of the problem and found an extra £10 million to deal with aspects of it.

It has to be said that, in its short time in post, the new prisons team has made it clear that it is fully live to the issues. In its response to our report, it says that prison safety is the Department’s top priority. The new Secretary of State told us last week that the position was unacceptable, and the Department has confirmed that legislation will be put in place to continue the reforms set out by her predecessor.

So with all this light, why is the situation getting worse? In my view, my hon. Friend the Member for Cheltenham (Alex Chalk) was right: the ratio of staff to prisoners is critical. I also agree with the hon. Member for Hammersmith (Andy Slaughter)—despite the boundary changes, I will not call him the hon. Member for Wormwood Scrubs.

This is not a time for a debate with my hon. Friend the Member for Shipley (Philip Davies) about whether the size of the custodial population matters, but it is clear that unless we are going to pour new resources into our Prison Service, we have to reduce numbers if rehabilitation is to be effective. I do not say that through a wish to be soft on criminals; rather the opposite. It is in all our interests for those in prison to be changed to stop them offending again. If the upshot of that is that tough diversionary sentences have to be used as an alternative to prison, effort should be put into piloting them. Restorative justice, as the Committee said in a previous report, may well have an important part to play.

[Alex Chalk]

Does my hon. Friend agree that one of our problems as a society is that we have not quite solved the problem of how to generate a community penalty that is sufficiently robust that gives members of the public genuine confidence that it is a proper punishment? As soon as they feel that community penalties are a proper punishment, there will not be such an imperative to send so many people to prison.

[Victoria Prentis]

My hon. Friend is right. He will remember that, on our excellent Justice Committee trip to some restorative justice schemes in the United States, we saw some really good new alternatives to prison that we are extremely keen to see taken up and piloted here. They may well be part of the solution, but public opinion will have to be brought along with us. If results can be shown to be good, I am confident that public opinion will come along too—even in Shipley.

I do not see how it is possible to run safe prisons, let alone rehabilitative prisons, with insufficient staff. Prison officers have only limited time to give to supervision and to building up the relationships that we know help people to change. It is often difficult to find sufficient staff to move prisoners to the classrooms for desperately needed education. We have heard examples of wings where only one officer is now on duty when there were previously two. A body-worn camera, while welcome, is not the same as two sets of eyes. There is concern that lack of patrolling perimeter fencing is making it too easy to smuggle contraband.

We applaud the Department’s efforts to recruit more staff, but experienced officers take years of training and greater efforts must be made to retain them. The former prisons Minister, the right hon. Member for Delyn (Mr Hanson), has covered that issue fully; I emphasise his point that it is the net gain in numbers that should always be considered when looking at staffing levels.

The second reason, in my view, for the continued decline in safety is the exponential increase in the use of new psychoactive substances. The prisons and probation ombudsman says that 61% of prisoners use them regularly and that they have overtaken tobacco as the currency of choice inside.

During an excellent session at Reform earlier this summer, a prison officer told us about an inmate who had been found unconscious in his cell. Four officers went inside to assist him and all four of them needed hospital treatment for secondary inhalation. These drugs are not cannabis as some Members of the House may have known it; they are cannabinoids and they are very dangerous mind-altering substances, which are doing extraordinary damage to our prisoners.

The Government have criminalised possession of these substances, but a great deal of resource needs to be put into testing these drugs and searching for them if we are ever to hold back the tide of them. Blocking mobile phone signals, which we now have the ability and the powers to do, is surely a good step to consider, while we fight the organised providers of these drugs. I hope that the body scanner being trialled in Wandsworth works and that this device can be rolled out very speedily to other establishments. The Committee looks forward to hearing further details about it.

As others have already said, it is now for the new team of Ministers to put the flesh on the bones of the reform programme. I am grateful for the taster that we have had of that programme in the Government’s response to our report. In my view, prison reform is not a place for dogma, and there is considerable consensus across the House and on our Committee about what needs to be done. Forgive me for saying so, but we have a captive audience and it should be possible to pilot the best schemes, and to assess quickly the extent to which new ideas work. Historically, a shameful lack of data have been produced by the Ministry of Justice, but slowly that issue is being addressed. Nevertheless, the new ministerial team needs to be very vigilant about it.

To add to the list of those reforms currently under way, which are set out in the Government’s response, I would also suggest focusing on improvements to assessment on entry to prison, and asking new prisoners about previous head injuries and traumatic experiences surrounding bereavement, all of which are proven, as we know, to indicate a greater propensity to self-harm. Those prisoners who are recalled should be properly assessed, however many times they have been inside prison before, as we know that they are particularly vulnerable.

Busy prisoners are safer prisoners, and real resource must go into both education and employment. Almost half of prisoners lose touch with their families, yet it has been shown that those prisoners who maintain family relationships through visits demonstrate a 39% reduction in reoffending. Better visits, Skype and in-cell telephones should be seen not as “nice to have” luxuries for lily-livered liberals or prisoners but as a useful tool in the fight against future crime.

Of course, all these ideas need testing and evaluation, and the Daily Mail and Shipley will not like them all. I accept that it is difficult to push through major reforms at the same time as managing a dangerous and—quite frankly—unstable situation, but unfortunately the Department does not have time on its side.

--- Later in debate ---

[Mr Gyimah]

I thank the right hon. Gentleman for his question but he will be disappointed with my answer: I will not make a firm commitment on staffing numbers in this debate.

I will also make a general point: no one factor is driving the changes in our prisons. Staffing is one aspect of that, yes, but there are a number of safety issues across the estate, and we are still seeing the violence in prisons, with different cohorts, regimes and staffing, levels so we should be cautious not to suggest that somehow staffing is the problem. For example, dealing with the scourge of mobile phones in our prisons has a technological answer; it is not a staffing issue. To deal with the problem of violence comprehensively, we need to look at all the different issues driving it.

Even in the debate today, a number of reasons for the rise in violence have been posited. My hon. Friend the Member for Shipley talked about the tariff structure and fixed-term recalls, and some people have mentioned staffing or mental health. What that highlights is that if we are to solve the problem, we need to look fundamentally at what is going on in our prisons. We cannot underestimate the scale of the challenge, and I cannot overstate the Government’s absolute commitment to deal with it.

[Alex Chalk]

What does the Minister say in response to the point made by my hon. Friend the Member for Shipley (Philip Davies): that incentives for good behaviour among the prisoner population are insufficient? Does the Minister think that that is part of the issue?

[Mr Gyimah]

I will come on to the incentive structure in a moment, but I will deal first with the point about staffing.

Any discussion of staffing should acknowledge the brave and invaluable work that prison officers, staff, volunteers and governors do every day. I am determined to see that they, just as much as those in their care, are safe and properly supported. The recruitment and retention of staff in prisons is a high priority and, as I have said, part of the necessary response to the problems. For example, at prisons in the south-east that have presented persistent challenges, we have launched targeted recruitment campaigns to attract and retain the right people. We are ensuring that prison officers have the skills necessary to deal with such issues, which is why training for our prison officers has been increased from six to 10 weeks. We are also examining additional ways to retain high-quality and experienced staff.

My hon. Friend the Member for South West Bedfordshire made an important point about the task required of prison officers today—it is about not just numbers or training but what the job is. That is an important point, because we do not want prison officers simply to be turnkeys, locking people up and letting them out. We want them to have a key worker role, building closer and more professional relationships with prisoners. As my hon. Friend knows, that is very much part of the offender management model that we are looking to roll out across the prison estate.

I turn to some of the key threats that have been highlighted in the debate. The House is aware that the dynamic within prisons has changed, contributing to the rises we have seen in levels of violence, self-harm and self-inflicted deaths. In fact, what we see in prisons is a magnification of what we see in society more broadly—in particular, the proliferation of psychoactive substances, and the evolution of technology such as metal-free phones and drones, which enables drugs to be brought within our prison walls.

The Chairman of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst, mentioned the £10 million investment to deal with prison safety issues secured under the previous Secretary of State. That has been distributed to the prisons that are experiencing the worst levels of violence. Over the coming weeks and months, we will provide more information on how that is working for our prison system.

My hon. Friend the Member for Banbury put very well the point that psychoactive substances are having a serious and significant impact on the safe running of our prisons. That view is commonly held, and many in the Chamber are aware of it, as is the chief inspector, Peter Clarke. For the communities inside prisons, however, such substances have dramatically changed the dynamic. There is the impact on an individual’s behaviour as a result of taking the drugs, and the impact on driving an illicit prison economy. The power of drugs such as spice and mamba cannot be overestimated. They are dangerous, mind-altering drugs that fuel unpredictable and violent behaviour.

What have we done? The varying ways in which substances can be smuggled into prisons—as tobacco, or even sprayed in liquid form on to paper—contribute to the challenge our professional staff face in keeping such harmful and damaging drugs out. We are, however, taking decisive action to tackle that ever growing threat, and we have introduced new legislation to combat the use of drugs and psychoactive substances in prisons.

The Psychoactive Substances Act 2016 has made these drugs illegal, and we have introduced new criminal offences for the supply and possession of psychoactive substances. In addition, the Serious Crime Act 2015 introduced a new offence of throwing anything into a prison. As a result, those who smuggle packages over prison walls, including of psychoactive substances, can face sentences of up to two years.

Homicide Law Reform

Alex Chalk Excerpts

Thursday 30th June 2016 Westminster Hall

[Alex Chalk (Cheltenham) (Con)]

I beg to move,

That this House has considered the matter of reforming the law on homicide.

It is a great pleasure to serve under your chairmanship, Mr Evans, on this auspicious day. I wish to make crystal clear that the debate is about the law of homicide, not fratricide.

Putting that to one side, the real point is that the law of homicide is a mess. That was put more elegantly by the Law Commission in its 2006 report “Murder, Manslaughter and Infanticide”, in which it said that the law of homicide is

“a rickety structure set upon shaky foundations.”

In essence, the problem is that the law lacks a rational or defensible structure. It does not chime with common sense—and in this area of the law perhaps above all others, it should.

As long ago as 1874, a Select Committee stated:

“If there is any case in which the law should speak plainly, without sophism or evasion, it is where life is at stake; and it is on this very occasion that the law is most evasive and most sophistical.”

That remains the case more than 100 years later, and that will not do. In the words of the Law Commission, the time has come to

“promote certainty…in a way that non-lawyers can understand and accept.”

But the problem is far more serious than mere opaqueness. The problem is that the law of homicide creates injustice—injustice to defendants and injustice to society—and that is something that we in this House must always stand ready to confront and resolve.

What is the solution? It is very simple: to split the current offence of murder into two categories, one of first degree murder and another of second degree murder. Manslaughter should remain as before, albeit more tightly circumscribed.

What, as a matter of law, is murder? It is committed when someone unlawfully kills another person with an intention to kill that person or to do them serious harm. That second element is really important. It means that someone who reasonably believed that no one would be killed by their conduct is placed in the same offence category as the contract or serial killer. That, in a nutshell, is the problem.

Let me give an example. Imagine a retired colonel living in my constituency of Cheltenham. He is aged 65, has lived an utterly unblemished life and served his country with great distinction, and is known for his charitable work. He is upstanding in every way. He lives with his wife, who has Parkinson’s disease and for whom he is the sole carer. A neighbour moves in next door who has a string of convictions for antisocial behaviour. Every night, he holds noisy parties that go on into the small hours. Endless polite requests from the colonel are ignored. Endless local authority noise abatement notices are ignored. So, after the umpteenth such party, with his and his wife’s already poor health suffering, the colonel goes round at 3 o’clock in the morning to remonstrate with his neighbour. He takes with him—this is important—a cricket bat in case there is a violent confrontation. The neighbour, who is very drunk, becomes abusive and the colonel, overcome with anger and frustration and at the end of his tether, says, “Right, that’s it. Let’s see how you party when your big toe is broken,” and strikes the neighbour’s foot with the cricket bat. The neighbour falls back, hits his head on a crate of beer standing in the hallway and is knocked unconscious. The colonel immediately calls 999 and tries to resuscitate him, the police and ambulance arrive and the colonel tells them exactly what happened, but the neighbour is rushed to the local hospital, diagnosed with a bleed on the brain, and dies.

The post-mortem report reveals that the deceased’s toe was broken. When interviewed, the distraught colonel admits that he lost his temper. What happens in this case? The only charge that the law allows for is murder. That means that the only sentence that the judge can impose, despite the colonel pleading guilty at the first opportunity, is life imprisonment, because he intended to do grievous bodily harm by breaking the toe. It is because he took a weapon to the scene—the cricket bat—that the starting point for the minimum term that he must serve is 25 years’ imprisonment, and because the offence is murder, he must serve every last day of that term. In effect, the colonel goes to prison for the rest of his life—25 years. He has a mandatory life sentence.

That is unjust. Although it is clear that a person who kills in such circumstances should be guilty of a serious homicide offence, it is equally clear that because he did not intend to kill, the offence should not be in the top tier or highest category. The current law does not chime with common sense. Academic research into public opinion tells us that, but frankly, we do not need academic research; we need simply to consult our common sense. The particularly daft thing—I hope that that is parliamentary language—is that when Parliament passed the Homicide Act 1957, it never intended a killing to amount to murder, which at that time was a capital offence, unless the defendant realised that his or her conduct may cause death. The law of murder was widened because of an unexpected judicial development immediately following the enactment of the 1957 legislation—the case of Vickers, which is about interpretation of the expression “malice aforethought”. In my view, that colonel should be guilty of second degree murder.

The injustice is further underscored when we add the potential for what are known as secondary parties or accessories to be convicted of a murder. Imagine that before the colonel had set off, his frail wife had told him where the cricket bat was stored and in frustration said to him, “Now, go and use it. Teach him a lesson.” She, too, could find herself facing the punishment and disgrace of a murder conviction and the same 25-year minimum term. She should of course be guilty of an offence, but again, she should be guilty of second degree murder, with the judge having the discretion not to impose a mandatory life sentence.

This issue is particularly topical because the Supreme Court has looked at the case of Jogee and more tightly circumscribing accessory liability—the so-called prosecutor’s friend—but still we are left with a situation in which the unsatisfactory law of homicide leads to manifest injustice.

[John Howell (Henley) (Con)]

I wonder whether my hon. Friend has in his mind what the range of sentences should be for second degree murder.

[Alex Chalk]

Certainly, on any view, life imprisonment must remain the maximum sentence—that is the maximum in the United States for federal offences where second degree murder is charged—but the key point is that the judge should have discretion. The Sentencing Council has done a terrific job of laying down guidelines—not tramlines—and the courts have shown themselves to be well able to dispense justice.

The case for reform becomes even clearer when we consider manslaughter, another homicide offence. Whereas, as I have indicated, the law of murder creates injustice for defendants, the law of manslaughter creates injustice for society. What is manslaughter? It can be committed in one of four ways, but just two of those are relevant for these purposes: unlawful act manslaughter and gross negligence manslaughter. The latter largely speaks for itself for these purposes, but let me explain what happens when a killing is the result of a defendant’s unlawful act—that is, one that all reasonable people would realise would subject the victim to the risk of some physical harm, albeit not serious harm.

Take this example. The defendant barges into a nightclub queue in Cheltenham. He has a string of criminal convictions for assault and criminal damage. In the queue, he is being drunk and obnoxious. He is insulting women for what they are wearing and telling them to get out of his way. The victim is the mother of two children. She works at nearby GCHQ and she is on a hen do. She politely asks the defendant to move to the back of the queue. His response is to say, “You silly cow; you need a slap.” He then strikes her repeatedly and hard to the side of the face with his open hand. She falls back, hits her head on the kerb and is knocked unconscious. The defendant runs off. The victim later dies, and the post-mortem shows that she suffered bruising—albeit no fracture—to her cheekbone and the fatal injury was caused by the impact on the kerb. The police arrest the defendant, who denies everything, but CCTV proves his guilt.

Under the law at present, that defendant can be charged only with unlawful act manslaughter, because the harm that he caused falls short of grievous bodily harm. The net effect is that he will be convicted of an offence that carries a far lesser stigma than murder and for which there is no mandatory requirement for a life sentence, and if he gets a determinate sentence, he will serve only half of it. Is that thug, I ask rhetorically, less culpable than the retired colonel or his wife? The only distinction is that the colonel intended to break a toe and the thug intended to commit a marginally less serious assault. In my view, that is a distinction without a difference—it is a distinction that is completely lost on the general public and, frankly, on me.

So, what needs to happen? This is not some academic exercise. Those two examples are not entirely artificial and they expose fundamental injustices. The first, as I have indicated, is to the victim, in the case of the colonel, and the second is to society in the case of the pub queue thug. The solution is clear: we need an offence of first degree murder that would encompass intentional killing only. I recognise the Law Commission, in 2006, wanted to add

“killing through an intention to do serious injury with an awareness of a serious risk of causing death.”

That is fine, and I understand it, but in my view it is a complexity that unnecessarily detracts from the simplicity of the proposal I put before the House.

An offence of first degree murder would simply and coherently communicate to the public the particularly heinous nature of the crime of taking life and would attract the special condemnation and opprobrium that that deserves. To paraphrase Colonel Tim Collins’ famous eve-of-battle speech in 2003, anyone convicted of such an offence would truly live with the mark of Cain upon them. That offence should also, as at present, attract a mandatory life sentence.

Under my proposal, second degree murder would encompass killing through an intention to do injury that is more than merely transient or trifling. In plain English: it would encompass killing through unacceptable violence and thuggery. That would include the colonel and the pub queue thug—people who committed a significant assault on others but who did not intend to kill. That category of offence would not require a mandatory life sentence. Instead, judges would be free to do justice, weighing in the balance all of the aggravating and mitigating factors. For clarity, that would not include the case of the most minor assault. Think of someone creeping up behind a person, playing a trick on them and flicking their ear as a piece of horseplay. That is technically an assault, of course, but is obviously very minor. If that person fell over and died that should remain as manslaughter.

So, where does that leave manslaughter? Manslaughter would remain predominantly focused on cases of gross negligence. That is, offences in which there has been no unlawful assault or intention to kill, but in which the negligence has been so dreadful as to become criminal. The advantage of that is that people get it; people would understand that—it chimes with common sense.

Those are not outlandish suggestions. Other jurisdictions—most obviously the United States—have two categories of murder. For murders in the US over which the federal Government have jurisdiction, life imprisonment is only mandatory for first degree murder. For second degree murder the mandatory sentence is described as

“a term of years to life.”

So why now? Because it is long overdue. The current distinction between murder and manslaughter is almost certainly more than 500 years old. No further general category of homicide has been developed in the intervening period, despite the fact that society, values and knowledge have changed out of all recognition.

The need for modernisation was obvious to our Victorian forebears. In this place, William Gladstone himself indicated his willingness to rationalise the law but nothing came of it—it keeps getting put off. That approach led one cynical criminal lawyer to remark at the beginning of the 20th century that the hope of a criminal code being enacted by Parliament that would address the problems of the law on homicide was as remote as

“expecting to find milk in a male tiger”.

We cannot keep putting this off. Modernising this key area of law is, to borrow the words of the Law Commission

“an essential task for criminal law reform.”

It is time for this generation to take up the challenge and to create a law that is truly fit for the modern age.

--- Later in debate ---

[Philip Davies]

I am grateful to my hon. Friend for that intervention. I think most of my constituents will be pleased to know that the average length of the minimum tariff given for murder has gone up. I suspect that if I were to do a straw poll of my constituents, most of them would be shocked that the average minimum tariff for the crime of murder was so low. I suspect most people in the country would be shocked that the average minimum tariff for murder was as little as 13 years in the first place. This is one of the great disconnects that we have with the general public at large; they expect murder sentences to be much tougher than that.

One of my notes of caution, therefore, for my hon. Friend the Member for Cheltenham is that his proposal might be used as a mechanism to try to weaken sentences for murder. That would fly in the face, I suspect, of what the public want to see. If somebody’s agenda is that penalties for murder at the moment are too harsh and this is a way of weakening them, that would be a terrible development. One of my notes of caution is that this does not get hijacked for all the wrong reasons by some of the penal reform groups that seem to have a view that nobody should be sent to prison at all. That is my first note of caution.

My second note of caution, and the reason why we need to tread carefully, is that in the cases that my hon. Friend alluded to, most people would accept that somebody’s life had been taken with some form of malice aforethought. At no point should we belittle the fact that somebody has had their life taken away with malice aforethought.

[Alex Chalk]

My hon. Friend is making some very helpful and important contributions. What he says is absolutely right, but whether it is the retired colonel who goes round to his noisy neighbour or the pub thug, under my proposals they would both be convicted of second-degree murder. That would mark society’s condemnation and give the judge power to sentence.

[Philip Davies]

I agree with that point; as I said at the start, I do not necessarily disagree with my hon. Friend. It is just worth making the point that in all the cases he referred to—hypothetical or not—somebody’s life had been taken, with some degree of malice aforethought associated with that. It would be dangerous if we did not give at least some recognition to that fact when considering these things. I certainly would not ever want to get into a situation where we seem to belittle one form of murder in order to form a distinction. We need to make it clear that both are terrible offences in their own particular ways.

If what my hon. Friend envisages is, perhaps, tougher sentences for first-degree murders in order to draw a distinction, I would welcome that. I think that there are many people in the country who, as it happens, think that life should mean life when it comes to murder, as it so often does in the United States of America, but very seldom does in the United Kingdom. If that was what he had in mind, I think he will get a great deal of support. If he was trying to use this as a Trojan horse to reduce sentences for murder, I suspect he would get very little support from the public. Knowing him as I do, I do not think he has that kind of agenda; he genuinely wants to make sure that the law is fit for purpose and is not brought into disrepute. He does a fantastic job in Parliament in pursuing that agenda, both in the House and on the Justice Committee.

This is something we need to debate further; there is not a clear-cut case one way or the other. I will retain an open mind—people who know me well know that that does not happen very often. All I ask of the Government and of the official Opposition is that they also keep an open mind and discuss all the implications of any such change in the law. My hon. Friend’s case is a very good one and is certainly something that I can envisage happening at some point in the future.

--- Later in debate ---

[Alex Chalk]

This has been a helpful debate. I introduced the topic to see whether there was an appetite for discussing it, and it seems that there is. My hon. Friend the Member for Shipley (Philip Davies) made some important points. He is absolutely right to say that in respect of this offence, perhaps beyond any other, there must be clarity, consistency and logicality. Members of the public must be satisfied that the law reflects common sense.

My hon. Friend’s point about the need for sentencing power to be transparent is also a good one. It is particularly relevant in the issue of homicide. If someone gets a life sentence and is told that they have a minimum term of 15 or 17 years to serve, that is the period that they must serve, yet if they are convicted of an offence of grievous bodily harm and the judge sets a determinate sentence of 15 years, they will in fact serve only half of that.

[Mike Penning]

Or less.

[Alex Chalk]

Yes; a maximum of half. My hon. Friend the Member for Shipley made an important point, and there is a further agenda to put forward.

To return to my central point, if we could divide the law of murder into first and second degree, those charged and convicted of first degree murder, which would be the most serious crime in the criminal calendar, would be convicted of something that would earn—if that is the right word—the opprobrium of society. People would understand that someone guilty of that offence intended to take life. I respectfully endorse the point made by my right hon. Friend the Minister that we need particular clarity on issues involving the taking of life.

What attracts me to the idea of second degree murder is that we could then lump in—if that is not too inelegant—all the other offences that deserve society’s condemnation, as my hon. Friend the Member for Shipley indicated, because life has been taken through an unlawful act. If we grouped those offences under second degree murder, we would not need a mandatory life sentence, but if the judge thought—on the facts of the case—that that was required, that is precisely what could be imposed. Taking into account how the law has moved on in respect of Jogee and of our modern mores and understanding, it seems to me that this is a reform whose time has come.

Question put and agreed to.

Resolved,

That this House has considered the matter of reforming the law on homicide.