Automatism as a Legal Defence

Alex Chalk Excerpts

Tuesday 14th May 2019 Westminster Hall

[Mr Sheerman]

I thank my hon. Friend for that intervention. I was going to mention the R.E.M. case, which, as he says, is a very famous one. Can I come back to that? He is absolutely right, and I will come back to it in a moment.

The requirements of a defence of non-insane automatism—I am not dealing with insane automatism—are that, first, there must exist an involuntary action arising from an external source or reflex action; secondly, the action must be completely involuntary; and thirdly, the automatism must not be self-induced. Some academic literature states that the automatism defence is increasingly being used, but the problem is that no statistics are kept on how often the automatism defence is pleaded or succeeds. The word I hear from the justice system more broadly is when a senior policeman or policewoman comes up to me and says, “Look, we’re in real difficulties prosecuting here, because the defendant is going to use automatism. It’s going to be very, very difficult, because the CPS will be very reluctant to bring the prosecution.” In a sense, what I am trying to bring to the public gaze today is this question: why do we not know how many cases are not proceeded with because the Crown Prosecution Service thinks that it is all too difficult, that the chances of getting a conviction are not good with a clever lawyer using automatism as the reason for the defendant’s behaviour?

I want to give a couple of examples. In 2014, there was the terrible accident in Glasgow involving a council-owned waste lorry that collided with pedestrians in the city centre, killing six people and injuring 15 others. The driver said that he had passed out at the wheel, and he was not prosecuted. Glasgow sheriff court was told that the driver had passed out at the wheel and heard evidence regarding his alleged failure to disclose a history of dizziness and blackouts in job applications and when renewing his licence.

Nicky Selby-Short, a solicitor in Access Legal’s specialist personal injury team, comments:

“There may be occasions when such a defence is entirely justified, but claiming automatism is likely to continue to be used by defendants since it is a good tactic; however, it is accepted it will leave innocent claimants with no award whatsoever for what are often very serious injuries”

and, of course, death.

[Alex Chalk (Cheltenham) (Con)]

The hon. Gentleman is of course raising a really important issue, but it is important not to lose sight of the fact that to make out this defence, the burden is on the defendant to advance evidence, which may be in the form of medical evidence. It would be quite wrong to give the impression that somehow a defendant could simply say, “I’m invoking non-insane automatism,” and get off scot-free. The burden is on him to prove it. Does the hon. Gentleman agree?

[Mr Sheerman]

Absolutely, I agree with that, but as I make my case, I think the hon. Gentleman will understand why I am worried about what happens at the moment.

The second case I want to mention is R v. Burton in 2007. An elderly motorist killed a married couple in a high-speed crash and was controversially cleared of all blame by a judge, after claiming that he may have been in a state of automatism at the time. Experts said that retired businessman Arnold Burton may not have known what he was doing when he smashed head-on into the couple’s car, while doing at least 76 mph in a 30-mile speed limit in his Jaguar X-Type.

Leeds Crown court was told that the 89-year-old, whose father founded the Burton clothing empire, could have been suffering from a lack of blood to the brain. Prosecutors decided to offer no evidence on two charges of causing death by dangerous driving after psychiatrists concluded that Mr Burton might not have been aware at the time. The recorder of Leeds, Judge Norman Jones, said that the elderly motorist was “driving automatically” and that his

“brain was not in control of his body”

when the crash happened.

In Glasgow, in 2010, two little girls were killed while Christmas shopping by a Range Rover that hit them on the pavement. The charges against the driver were dropped, because he suffered a loss of consciousness, owing to an undiagnosed medical condition.

[Alex Chalk]

I am grateful to the hon. Gentleman for generously giving way. Where a road accident leads to someone losing a life, one’s heart goes out to the victims and those who are left behind. However, it is important that one injustice is not replaced by another injustice. If it really is the case that that individual was effectively unconscious, surely the hon. Gentleman is not suggesting that he should be criminally culpable none the less. It may be that he should not have his driving licence, but that is another issue. If he is truly unconscious, surely he is not criminally liable.

[Mr Sheerman]

I agree entirely with the hon. Gentleman. I believe in evidence-based policy. We have a great deficiency in the transport safety area that I keep nagging the Government about. In Sweden, every time there is a fatality on the roads, there is a thorough investigation. That does not happen in the United Kingdom. There is no highly skilled investigation of an accident involving a death. There is a real problem finding out what really happened.

I will whisk through the prominent case that highlights how automatism might be used too broadly. It involves Peter Buck from the band R.E.M., who was acquitted of charges of two counts of common assault and one count of criminal damage while being drunk on a plane. There was a good defence. What distinguished Mr Buck’s case from others of this nature was that he raised the defence of automatism in a Court of Appeal, which described non-insane automatism as

“malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences”.

Mr Buck sought to establish that the commission of the offences he was charged with lacked a mental element due to a transitory effect caused by the external factor of red wine combined with sleeping tablets.

However, a defendant cannot simply absolve himself of all responsibility for his actions by blaming pills and alcohol. A self-induced incapacity will not excuse; nor will one that could reasonably have been foreseen, such as the result of taking alcohol against medical advice after using certain prescribed drugs or failing to have regular meals while taking insulin. However, Mr Buck produced his prescription bottle, which did not contain a warning about mixing alcohol, so he was acquitted.

While it is difficult to put forward a defence of automatism, once such a defence has been established—this is what legal experts tell me—it falls on the prosecution to disprove the evidence of automatism beyond reasonable doubt. I am not trying to turn the justice system upside down; I am merely shining a light on the increasing use of automatism as a defence.

Forms of automatism have also been used to defend people who have been accused of rape. Sexsomnia is being used internationally. In 2007, in the UK a man was let off for raping a 15-year-old because he claimed sexsomnia. Let us remember that, according to a 2002 London Metropolitan University study, just 6% of cases result in conviction, because of loopholes in the law such as automatism.

Dr Cosmo Hallström, a member of the Royal College of Psychiatrists, said:

“People do sleep walk and they do strange things in their sleep, but it is usually no more complex than grinding of the teeth or smacking the lips—at most they may get up and make a cup of tea. I would think it was extremely difficult to perform such a complex manoeuvre as having sexual intercourse while asleep—especially if the other person is unwilling.”

Harry Cohen spoke on this in the House of Commons only 11 years ago:

“Anybody up in court on a rape charge could get a few friends and family to claim that he sleepwalks, and he will almost certainly get off.”—[Official Report, 15 October 2008; Vol. 480, c. 801.]

Harry Cohen introduced the Rape (Defences) Bill in 2008 to address this. That Bill sought to prohibit the use of a defence of sleepwalking or non-insane automatism in proceedings relating to the offence of rape.

[Alex Chalk]

The hon. Gentleman is being extremely generous with his time. We all want to see more people who are guilty of rape convicted. We all agree that the statistics are shocking. However, on the example that he gave, if the prosecution were able to call evidence to suggest that what was being posited—namely that the defendant raped through non-insane automatism—was a complete fiction and entirely implausible, a jury should have little difficulty giving that defence short shrift and finding the defendant guilty. Does he agree that if it is a bad defence, the prosecution can call evidence to expose it as such?

[Mr Sheerman]

The hon. Gentleman is right, but I am trying to get the balance right. There are so few successful prosecutions for rape and there is an increasing tendency worldwide to use this as a reason why the person—usually a man—was unable to know what they were doing.

In 2008, another good former comrade—sorry, colleague —of ours, Dr Brian Iddon introduced the Road Traffic (Accident Compensation) Bill, which sought to provide no-fault compensation for personal injury in road traffic accidents where liability cannot be established. This is the nub of the matter. However many people are killed or injured in an accident involving automatism, there is no compensation. How can that be just? In such cases, the victim is left injured or killed, but with no compensation for the family. Surely, the Minister would agree that it is time to consider introducing a no-fault compensation system in this area, as is used in other countries such as New Zealand.

We are coming to the end of the story. In 2013 the Law Commission undertook a review and produced a discussion paper called “Criminal Liability: Insanity and Automatism”. It produced a range of recommendations for reform of this defence. I hope that the hon. Member for Cheltenham (Alex Chalk), who intervened on me two or three times, will be able to hear this, because it is germane to his interventions. Much of the report focused on the need for modernisation and reform of the law around insane automatism or the insanity defence. It recommended that the arcane criminal law be reformed by replacing it with the new defence of

“not criminally responsible by reason of recognised medical condition”.

However, it also proposed to abolish the less clearly defined common law defence of automatism in favour of a reformed automatism defence that was clearer and narrower in scope. To the best of my knowledge, the Government have not since acted on those recommendations. I ask the Minister what actions, if any, the Government have taken in relation to clearing up the legal problems identified by the Law Commission. Will the Government undertake to enact any of the proposed reforms recommended by the Law Commission?

This is about victims and justice. What is really going on in the undisclosed statistics from the Crown Prosecution Service? What is going on in the desperately underfunded justice system that we operate in this country? I co-chair the all-party parliamentary group on miscarriages of justice. How many more miscarriages of justice will happen, not because of ill-will or badly motivated, wicked people, but because of a lack of resources, investment and personnel?

There is no scheme in the UK to compensate victims of genuine automatism. A person who is injured through no fault of their own has no opportunity for compensation for what are often serious injuries or death. Sometimes an insurance company makes an ex gratia payment to an injured party, but that is rare. As it stands, the law offers no protection to the often entirely blameless victims of the automatism defence.

It is not surprising that this effective get-out-of-jail-free card is being used more frequently by defendants. Countries that operate no-fault compensation schemes include France—it has implemented a no-fault standard for serious and unforeseen medical injuries, and a fault standard—and New Zealand, which has also put in place a no-fault compensation scheme with the broadest eligibility criteria; the no-fault standard is applicable to any unexpected treatment injury.

On the Crown Prosecution Service and the police, an article in the International Journal of Law and Psychiatry notes that in a criminal trial, it can be difficult to decide whether to hold responsible a defendant who did the act but claims that their mental state was abnormal because of the lack of objective evidence. There is no brain scan or blood test to measure responsibility. The best witness to what was in the defendant’s mind is usually the defendant, who obviously has an interest in what the court decides.

I have always said that we need good evidence-based policy, but we lack the evidence and statistics about how often automatism is evoked as a legal defence. As I talk to people in the police and the Crown Prosecution Service up and down the country, there is a suspicion in my mind that the defence is increasingly becoming a way for well-heeled people who can get the right solicitor to get off dreadful crimes on the road. We know that there is a group of solicitors who can find some defence to get rock stars or people in the public eye off.

Despite many high-profile cases, we do not know how often this occurs. How many cases are not being brought to trial because prosecutors have lost confidence that they can challenge the evidence? How aware are the police, while they are investigating a case, about people invoking automatism? We need evidence to evaluate whether clever lawyers are using the defence to get people off.

This is about justice for people who can no longer fight their own corner. This Chamber is the right environment for this debate, and I hope I have made a coherent case.

Disclosure of Youth Criminal Records

Alex Chalk Excerpts

Thursday 28th March 2019 Westminster Hall

[Robert Neill]

I entirely agree with my right hon. Friend; that is precisely the problem. The disclosure system is an immensely blunt instrument and forgets that, as well as being a punishment, any sensible criminal justice system must encourage reform and rehabilitation. Whatever the no doubt good intentions behind it, the way the system operates is counterproductive in that regard.

[Alex Chalk (Cheltenham) (Con)]

For people who perhaps did not have the most advantaged background, let us suppose there is a fight in a school playground that leads to the police being called. That might lead to a conviction for actual bodily harm that is non-filterable. Yet, if they had been born in more affluent circumstances, I am quite sure the police would never have been called and that person would never have gone on to have their life blighted in the same way. Does my hon. Friend agree that we must ensure that this fact is not an impediment to social mobility?

[Robert Neill]

My hon. Friend makes a characteristically significant and thoughtful point. I can think of instances both from my constituency casebook and from childhood friends of mine who got into exactly that situation. That is not what the system was intended for. He is right that it is without doubt discriminatory in a number of regards.

--- Later in debate ---

[Robert Neill]

We talked about extending the initiative to all public sector vacancies, and I can see the logic of making this a condition of public procurement more generally. It is an interesting point that the right hon. Lady fairly raises. Like her, I would be interested to hear the Minister’s response. These levers are within the Government’s gift and there would be no requirement for primary legislation or anything of that kind.

Against that background, we were disappointed in the Government’s response. It was not entirely negative, but it did seem to us to lack a degree of urgency. It cited the litigation on criminal records that was ongoing at that time in the Supreme Court as a reason not to go into too much detail on most of our important recommendations. There was almost a predictive text response of, “It would not be appropriate to consider these matters until there has been an authoritative judgment from the Supreme Court.” That has now changed, as I will come to.

I recognise and welcome the positives in the Government response. The Government accepted parts of the report, in particular the commitment to improving information and guidance and exploring options for promoting Ban the Box—one of those has been suggested by the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts)—and there is willingness to work with the insurance industry to ensure that it operates more fairly in relation to spent convictions. I say to the Minister that that is all good, but we need more.

A concern for us was how policy is difficult to drive forward because it sits uneasily between the Ministry of Justice and the Home Office. That is a classic case of a desirable change falling through the gap between two Departments. If we are committed to more cross-governmental working, more could and should be done.

[Alex Chalk]

My hon. Friend is making a powerful speech, and I pay tribute to his leadership of the Select Committee. He has not touched so much on the conclusions in the report about people aged between 18 and 25. The report said that consideration should be given to extending the filtering to young people. My view is that that is a bridge too far and we should focus purely on under-18s, but does he want to say anything about whether he thinks we should look at a filtering system for young people in that category?

[Robert Neill]

As my hon. Friend will remember from his time on the Committee, that is linked to earlier work in relation to young adults in the criminal justice system. I made the point earlier that we now know from overwhelming evidence that maturity and desistance from crime tend to kick in, particularly among young males, at age 25 or so. That is where that suggestion comes from. I agree. Rome was not built in a day, and we have to operate the system in a way that maintains public confidence and the confidence of employers where there are legitimate grounds for caution. Let us be honest: sometimes there are, and there always will be. We put the point in the report as part of the broader context. I hope that when, in due course, we get time to debate important issues of domestic legislation, rather than having the groundhog approach that we seem to have on other matters at the moment, perhaps that more holistic approach to young offenders will be appropriate, but it is not a reason to hold back the specific recommendations that we make about younger people, which we suggest should be moved urgently.

The Supreme Court judgment was cited as a reason for the Government not wishing to commit themselves. I understand that, but the Supreme Court has given its judgment, so the Government can move forward with a clear conscience. That judgment was of course in the joined cases of P, G and W and Lorraine Gallagher, who, being overage, could be named in that context. All the cases challenged various aspects of the filtering regime and dealt with a number of the issues to which we have referred. They all involved people who had been convicted of or reprimanded for relatively minor offending, and the disclosure of their criminal records had created barriers to employment, or there was a reasonable expectation that they would do so in the future.

The Court of Appeal concluded that the multiple conviction rule and the serious offence rule, without a mechanism for refinement, were not

“in accordance with the law”

as required by paragraph 2 of article 8 of the European convention on human rights, which protects the right to respect for private life, as they did not allow proportionality to be considered in any particular case. It is that bluntness and lack of proportionality that we think now need to be addressed urgently.

The Government, to our regret, appealed against that decision rather than acting on the Court of Appeal suggestions. They lost in the Supreme Court on the principal matters. The legal approach was somewhat different. They succeeded in one appeal but, broadly, the Supreme Court agreed that there should be a declaration of incompatibility under the Human Rights Act 1998 against the multiple convictions rule. We call upon the Government to deal with that declaration of incompatibility and reform the law accordingly to bring it into accordance with our convention obligations and, frankly, the requirements of the 1998 Act.

Similarly, the mandatory disclosure of childhood reprimands was upheld in the Supreme Court, but on different grounds. Lord Sumption, who gave the Supreme Court’s lead judgment, looked at the second part of the test for lawfulness under article 8(2) of the convention, on whether the measure is

“necessary in a democratic society”.

In other words, he looked at whether the measure is proportionate. It failed that test.

Lord Sumption found that the legislation involving strict, predefined categories could in principle be proportionate, and that most of these could pass the test. However, he went on to decide that two features of the regime were disproportionate: the blunt instrument effect of the multiple conviction rule, and allowing the disclosure of reprimands for serious offences when they were given to children. Those are two specific areas where it seems to us that there is no excuse at all for the Government not acting to fall into line with the judgment of the Court. We believe there is good reason for them going beyond that, too.

Since then, we have been in correspondence with the Government, drawing attention to these facts and the incompatibility, as we see it, of the Government’s current stance with the Supreme Court judgment. We urge the Government to deal with our outstanding recommendations and, in particular, to set out what steps are being taken to ensure that the DBS suspends the unlawful elements of the current regime without delay. We seek from the Government—perhaps the Minister can help us today—an update on how they now intend to address those elements of the regime to ensure that it fits the legal proportionality test in a meaningful and workable way.

The debate comes against that background. The Secretary of State replied, as always, in courteous terms, but mentioning the need to balance giving employers necessary information, which I concede, with respect to the individual’s right to private life. The Government said they will consider the Committee’s recommendations, but need to fully consider the implications of any change. They said that they are not able to respond formally at this time. When will they be able to respond formally? Lives are being damaged at the present time by this needless failure to comply.

That is why we are pressing for urgent action. The Government can deal with this very easily, it seems to us. They can use section 10 of the Human Rights Act to present to Parliament a remedial order to amend those parts of the disclosure regime that are incompatible with article 8 according to the Court’s judgments. Remedial orders to amend legislation and remove any incompatibilities can be statutory instruments. That does not, therefore, involve primary legislation and the time that that would involve. There is precedent for statutory instruments having been used on a number of occasions.

If the Government do not take that step, they cannot really expect anything other than further legal challenge, and I do not want to see the Government putting themselves in that position. I hope they will take those remedial orders to bring our law into compliance, and that they use the opportunity to make an urgent and comprehensive review of the whole regime, particularly the impacts on those who offend as young children or young adults. That is long-overdue for all the reasons that a number of right hon. and hon. Members gave in interventions. I hope that sets the scene and enables colleagues to participate and raise their points, which may even shorten things as the debate goes along.

--- Later in debate ---

[Mr Lammy]

Absolutely. Those of us with teenage children—I had a firm word with my 13-year-old son yesterday, who had got into trouble at school—know that the assessment of risk and risky behaviour is important.

[Alex Chalk]

The right hon. Gentleman is making an excellent speech, as is his wont, but we need to keep our feet on the ground. I understand the point when it comes to 13 and 14-year-olds, but does he agree that there has to be a cut-off point for any measure, which we traditionally think of as 18? I say that because the brain may still be developing in a 24-year-old, but it would not garner public confidence in the system, and might undermine it, if such people were able to have their serious conviction for violence, or whatever, filtered.

[Mr Lammy]

I disagree with the hon. Gentleman and I will explain why. In my review, I talk about the German system, which makes an assessment of maturity and particularly focuses on the years between 18 and 21. He will probably recognise that in a previous era, and for some hon. Members present, the age of maturity in this country was 21; it fell down to 18. If we are to make evidence-based policy, it is important to keep that live, because of what the science suggests, although it may be that social media and other things are taking the age of maturity in the other direction.

Why does that become important? It was particularly important in my review because we should be very concerned that immature 18-year-olds are sitting in adult prisons with hardened criminals, being seriously groomed to commit more serious crimes. That is why, in Germany, they have gone in a different direction, and why I suggested that we could look harder at the psychological evidence for where the age of maturity lies.

To return squarely to the issue of criminal records, that is also why other regimes allow the young person, as they get into maturity—most often at the end of their 20s and the beginning of their 30s—to come back before a public official, such as a judge or a parole board, to make the case that they have been out of crime for several years, and that they have a wife and children, and have that record expunged or sealed. I recommended the Massachusetts system, because it allows the flexibility for responsible adults to make the judgment. For some young people, I am afraid that the judgment would be that it would not be sealed.

Let me be clear: a record is never sealed from the criminal justice system, the police or the courts. It is about whether it should be sealed from employers and where the burden is. If it is not to be sealed from employers, we must understand clearly that we are asking the taxpayer to pick up the bill. I repeat that one third of people on jobseeker’s allowance have committed criminal offences. That was my concern.

I ask the Government to reflect hard on the Taylor review, which looked at youth justice. The Government will be aware that he said:

“As a point of principle, I believe that rehabilitation periods for childhood offending should be far shorter than for adult offenders. My proposals”

are

“to replace existing court sentences with tailored Plans developed by Children’s Panels”.

He coined the phrase that our system is tougher than Texas—it is one of the toughest regimes in the world.

The Select Committee report is really about balance, where the judgment should lie and whether it is out of kilter. The Supreme Court decision could be interpreted narrowly by the Government, but from reading the report, the Committee’s mood suggests that it is an opportunity, notwithstanding all that is going on in Parliament, for the Government to take a broader view and to review our criminal records regime.

My view is that there should be a balance between a rules-based system, which is largely what we have, and which is clearly cheaper—that is effectively why we have it, because there is time and one makes a judgment about spent convictions and disclosure—and a system that is slightly more sophisticated and might cost slightly more. There is a question about who pays. In the Canadian jurisdiction, the individuals seeking to get their criminal records looked at again pay for the system. In my view, a parole board, a magistrate or a judge could make the assessment.

I remind hon. Members that a 12-year-old child convicted of shoplifting two items of make-up on the same day will have to disclose that for life to work as a traffic warden; a 14-year-old reported to the police for sending naked pictures of themselves to a classmate, about which the police take no further action, could have to disclose that for life to work as a teacher; a 16-year-old cautioned for having sex with a 15-year-old partner will have to disclose that for life to work as a vet; and a 17-year-old given a four-month custodial sentence for breaching an order will have to disclose that for a year and a half when seeking to work in most supermarkets. The question is whether that balance is right.

I urge the Government to reflect hard on what we see of the job market, the double penalty that exists for minorities, and why recidivism rates are so high—because people are effectively trapped in unemployment. I want to make the case clearly that we have to give our young people from urban communities hope. The challenge of getting employment when someone reaches the age of maturity is a fundamental part of that. I urge the Minister to think hard about this area.

Children Act 1989 (Amendment) (Female Genital Mutilation) Bill [Lords]

Alex Chalk Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Monday 11th March 2019 Commons Chamber

[Zac Goldsmith]

I absolutely do, and I strongly encourage the hon. Lady to link her friend up with Jaha, who is now a high-profile and significant figure in the Gambia. She is one of the world’s most important FGM campaigners. Indeed, she was nominated for the Nobel prize last year. Again, I would be happy to talk about that after this sitting, to see whether I can do something to link the hon. Lady’s friend up with the right people.

Clearly, there is more to be done, both here and abroad, but this Bill is part of that. I am not going to pretend that it will stop FGM—it will not—but it does provide another potentially crucial legal tool in the fight against it. I want to explain briefly what the Bill does and why it matters. First, let me point out that it has just two clauses, the second of which provides only for the Bill’s extent, commencement and short title. I therefore wish to focus on the first clause, which is the only substantive one.

At present, the Children Act 1989 allows courts to make an interim care order—an instruction to a local authority to share parental responsibility for a child. Such an order can last up to eight weeks and it can be renewed, but that can be done only if there is a belief that the child in question is suffering or is likely to suffer significant harm. The local authority would then be part of any decisions relating to where the child should live or how their welfare should be maintained. I do not think anyone would argue that a girl who has undergone or is likely to undergo FGM is not suffering or likely to suffer significant harm, but the 1989 Act does not currently allow interim care orders to be issued for FGM. A court may only direct an interim care order to be made in “family proceedings”. Section 8 of that Act defines what is meant by “family proceedings” for the purposes of the Act. It contains various statutes relating to domestic violence, forced marriage and so on, but it does not include proceedings under the Female Genital Mutilation Act 2003. The effect of that is that it is not open to a judge to issue an interim care order for FGM. Clearly, that is an omission in law—I do not think this is deliberate—but it means that our courts do not have the full suite of powers that they need to protect girls who are at risk.

As Lord Berkeley pointed out when he introduced the Bill in the other place, that means that although a family court can protect a girl who is at risk of forced marriage or domestic abuse, it cannot protect a girl who is at risk of FGM. That needs to change. David Maddison, the family lawyer who raised this issue with Lord Berkeley, has pointed out that this is not an academic or abstract concern; it is a practical one. There have been occasions when the police have sought an FGM protection order in the family court and the judge has wanted to employ the powers of the local authority in an order but has not been able to. The Bill will grant the power that has been missing.

All the Bill does is to insert the proceedings for FGM protection orders from the 2003 Act in the section of the 1989 Act that defines which family proceedings constitute grounds for an interim care order to be made. To be clear, it inserts that part of the 2003 Act that relates to FGM protection orders in section 8 of the 1989 Act. That makes FGM a family proceeding for the purpose of issuing care orders under the 1989 Act. I hope the House agrees that this is a simple and uncontentious change. If the Bill passes, it is unlikely to lead to the issuing of a huge number of new care orders—they are rarely used—but it is important that judges have all the power we can give them to protect girls who are at risk. Currently, that is simply not the case.

I have no doubt that when some Members speak they will argue that the Bill is not enough to stop FGM entirely. I am not going to argue with that. Those Members are right that we need better support, particularly mental health support, for survivors. We need better education so that girls and boys grow up knowing that FGM is wrong. We need to get better at identifying at-risk girls, as in France where they do it better than we do.

[Alex Chalk (Cheltenham) (Con)]

I pay tribute to my hon. Friend, who is making such a powerful speech. He mentioned the important role of education, and it is of course about education not only in the UK but internationally. On this Commonwealth Day, will he pay tribute to the work of the Commonwealth and the Department for International Development in ensuring that education is really having an impact worldwide?

[Zac Goldsmith]

That is the very next point I was going to make, so I thank my hon. Friend for his intervention. I have said it twice already but I shall say it a third time: I am proud of the work that the Department for International Development does. It is a Department that is often hammered by our newspapers, but it does really important work. The £35 million that it has already spent has changed lives and saved lives, and if the £50 million that has been committed is spent properly—I am sure it will be—it will go on to save lives as well.

I mentioned Nimco’s work; I do not want to embarrass her, but I know that the amount of money that it took to get her to Somaliland to do the work that she did was so small as to barely qualify as a DFID grant. I know that the work of Jaha, whom I mentioned earlier, in the Gambia has cost so little that it would only just register or qualify as a DFID grant. There are so many people like that out there who could do with the kind of support that DFID can provide.

My hon. and learned Friend the Minister provided lots of reassurances when she spoke in Committee about what the Government are doing and how committed they are to tackling FGM. I do not know whether protocol means she will have the opportunity to repeat those reassurances later—

Human Rights in the UK

Alex Chalk Excerpts

Wednesday 13th February 2019 Westminster Hall

[Alex Chalk (Cheltenham) (Con)]

It is a pleasure to serve under your chairmanship, Mr Gapes. I pay tribute to the hon. Member for Edinburgh East (Tommy Sheppard) for leading this debate.

I want to say a few words about the European convention on human rights, which I very much support. It is important to emphasise that the values that we see in the European convention are British values. Let us look, for example, at some of the rights contained within it: the right to life, which sounds fairly British to me; the right to avoid torture, inhuman or degrading treatment, article 3—we could probably sign up to that; the right not to be subject to slavery, article 4; the right to liberty and security, article 5; and the right to a fair trial and so on. All too often this debate has been tainted by a misunderstanding of what the actual rights are, as though they are a foreign import that do not reflect some of the cultural norms in our country, but nothing could be further from the truth. That is emphasised by the fact that, certainly in my experience in court, and I dare say in the experience of plenty of the other distinguished practitioners in this room today, it is overwhelmingly the case that any submission that is supported by, for the sake of argument, article 6 is often buttressed by domestic legislation as well.

In the criminal courts, if someone seeks to exclude evidence that is relied upon by the prosecution on the grounds that it would deny their client the right to a fair trial, it might be that, in tandem with invoking article 6, they will rely on section 78 of the Police and Criminal Evidence Act 1984. Although the hon. Member for Strangford (Jim Shannon) was absolutely right to highlight individual cases where rights had been asserted in order to achieve a remedy, in the overwhelming majority of cases in our country the domestic legislation does perfectly well and may be supported to some extent. As I say, it is rare that the right itself would found the claim or application for a remedy.

[Nick Thomas-Symonds]

The hon. Gentleman is entirely right in his assessment of the criminal law. The one area where the Human Rights Act, in the sense of the incorporation of the ECHR into UK law, has made a big difference is in family law, particularly in rights to see children.

[Alex Chalk]

That is right, and there are areas where there has been a greater role for it. However, I want to slay the myth that people are routinely invoking Human Rights Act points to seek remedies that are not otherwise available in the legislation. There are examples of that, but they are by no means the norm. The convention is important because it provides an important safety net at a time particularly of national stress and crisis. We know that in the case of a terrorist atrocity, the cry immediately goes up that the state must act ever more robustly, often impinging upon individual liberties. Sometimes that is the right judgment to make, but equally it is critically important that any measures that the state proposes are viewed through the prism of what we see as keenly won liberties. It is not just a British phenomenon.

If one thinks of the United States in the second world war, one of the episodes of which it has now the most shame was the internment of Japanese Americans at a time of national stress. But our country is not immune to it. In the aftermath of September 11, there was legislation in the UK that people will remember: part 4 of the Anti-terrorism, Crime and Security Act 2001, which was used by the then Government to effectively hold people without charge. That ultimately was challenged in the European Court of Human Rights and the Court ruled that that was unlawful because it breached article 5. Again, it seems that that provides a useful safety net.

[Joanna Cherry]

In my lifetime, members of the Catholic community in Northern Ireland were interned without trial, with quite some impact on family life. Does the hon. Gentleman agree that that is something that the ECHR has made a big difference to in the United Kingdom? As a result of our membership and its applicability through the Human Rights Act, it now would not be possible to intern without trial in the UK.

[Alex Chalk]

It is an important point and we must recognise that because—as is necessary in a democracy—we listen to our constituents and reflect their concerns, this House will always have a tendency to react in a very public way to what is perceived as a public need; but it is not wrong that there should be a check to that and a requirement for us sometimes to pause for thought.

In so far as we give great power to the courts—and to the European Court of Human Rights, through the convention—it is also right that they should exercise necessary discretion, and I respectfully suggest that there have been examples of their straying beyond their natural area of competence. The most obvious example is Hirst, when article 3, which of course prohibits torture and “inhuman or degrading treatment”, was relied on to rule that the British Government were in error in saying that prisoners could not vote. A number of people might think that that had gone too far, and that there had not been appropriate respect for the principles of subsidiarity and the margin of appreciation. I will not go into that now, but there is certainly a case for saying that the Court should tread carefully—and I invite it to do so. I say that because what the Court does, and the rulings that it provides, overwhelmingly contribute to human rights in this country and to the quality of our public discourse and democracy. It would be a crying shame if unfortunate judicial activism were to put that at risk.

[Kate Osamor (Edmonton) (Lab/Co-op)]

It is a pleasure to speak under your chairmanship, Mr Gapes. I thank the hon. Member for Edinburgh East (Tommy Sheppard) for bringing this important issue to the House.

I am deeply concerned by the huge hole that will be left in human rights protection after Brexit, especially in the event of a no-deal Brexit. However, even while the UK remains a member of the European Union, human rights have been considerably worn down as a result of austerity policies.

[Alex Chalk]

Will the hon. Lady give way?

[Kate Osamor]

No, but only because there is not a lot of time.

Only last year, the UK, according to Professor Alston, the UN rapporteur on extreme poverty and human rights, was found in breach of four UN human rights agreements: those relating to women, children, disabled people and economic and social rights. The critiquing report drew on work by the Institute for Fiscal Studies and the Joseph Rowntree Foundation to highlight predictions that child poverty could rise by 7% by 2022, possibly up to a rate of 40%. Professor Alston declared that such actual and projected levels of child poverty were

“not just a disgrace, but a social calamity and an economic disaster”.

Such reports agree with the experience of my constituents. Enfield Council has already made £178 million-worth of savings since 2010 because of funding cuts from central Government. However, further cuts mean that the council currently has to find another £18 million to draw out of essential services by 2020. That amount of £18 million is more than Enfield’s current net spend on housing services, leisure, culture, libraries, parks and open spaces combined. The impact of cuts on young people is tragic. Youth services have been decimated and young people are abandoned, as essential staff have had to be shed, and what is simply a skeleton service is provided. Austerity in education in Edmonton has created an £8.5 million annual funding shortfall. Every school in my constituency has had funding cuts since 2015. That means, in an already struggling community, that the education of every single pupil in Edmonton has been undermined.

All that and much more has been done while the UK still has the protection of the EU charter of fundamental rights. The Human Rights Act 1998 is woefully insufficient on its own, and I dread what could be done to our communities without the limited protection that the EU charter provides. Does the Minister recognise the limitations of the Human Rights Act without the protections of the EU charter of fundamental rights, and can he explain how his party’s Government are preserving those rights before the UK leaves the EU?

Oral Answers to Questions

Alex Chalk Excerpts

Tuesday 5th February 2019 Commons Chamber

[Mr Gauke]

The hon. Lady makes an important point. We have formed a drugs taskforce and we are working with law enforcement and with health partners across Government to restrict supply, reduce demand and build recovery. The taskforce is developing a national drug strategy, which will provide all prisons with guidance and examples of best practice to support them in tackling drugs. I should also point out that we are investing £6 million in 10 of the most challenging prisons to tackle drug supply and reduce demand. There is a greater focus on drug detection, on dedicated search teams, on body scanners and on improved perimeter defences.

[Alex Chalk (Cheltenham) (Con)]

Purposeful activity for prisoners is vital to encouraging rehabilitation and reducing volatility in our jails. What steps are being taken to drive down the number of prisoners who are locked up for 23 hours a day, which does not help to bring about peace in our prisons?

Short Prison Sentences

Alex Chalk Excerpts

Tuesday 29th January 2019 Westminster Hall

[Chris Evans]

In the case of non-violent crimes, especially those committed by women, there is a real argument to make about that. I cannot quote the figures off the top of my head, but I understand that a large number of women who are locked up have been victims of domestic violence. The courts need to accept that and think about it when they are sentencing women in the future. As I said, 95% of the prison population is male. How many of the 5% who are women have been convicted of non-violent crimes and sentenced to less than one month? Many women are in nurturing and caring roles, with children and also with elderly parents, and that would cause severe disruption as well.

[Alex Chalk (Cheltenham) (Con)]

Does the hon. Gentleman agree that it is critical to develop a robust and credible system of community sentences, so that my constituents can feel satisfied that when people are punished by the court they truly receive something that is inconvenient, rehabilitative and credible?

[Chris Evans]

The hon. Gentleman hits the nail on the head. This is all about building confidence in community rehabilitation sentencing. Somebody said to me earlier in the week that if somebody’s house gets burgled, they want to feel that people have been punished. However, community sentencing is seen as the soft option. As this debate goes on over the next few months, we have to be talking about building confidence in those sentences—the hon. Gentleman is absolutely right.

The Revolving Doors Agency’s campaign, which is called #shortsighted, backs the sentiment that ending short sentences can reduce cost and be resource effective. It is calling on the Government to bring an end to short sentences and opt for community-based sentences instead.

In England and Wales we are too quick to send people to prison for petty and often persistent crimes. I understand that Governments of all shades are often influenced by the media, which likes the idea of “lock them up”. The fact that many people who have received a short sentence often reoffend and commit similar crimes shows that short-term sentences are ineffective in reducing recidivism. Government statistics from 2018 show that 63% of those who had sentences of less than 12 months went on to reoffend within a year. It is clear that short prison sentences do not provide an apt amount of time to stage an intervention and address the needs of an offender, particularly if that offender is also experiencing ongoing problems with drug and alcohol use or other mental health issues.

On the other side of the coin, those who have committed crimes of animal cruelty face a maximum of six months’ imprisonment in Wales. I understand that the Government in England have committed to increase that to five years, an extension which I believe should be applied to all parts of the UK. Six months hardly provides enough time for an intervention in such criminal behaviour, and animal cruelty should not be treated in the same manner as petty crimes. I support the continued campaign by Battersea Dogs & Cats Home to increase these sentences.

Last year, the Revolving Doors Agency carried out research among voters of all parties in England and Wales, bearing in mind what I said about the media and “lock them up”. It found that an overwhelming 80% believe that those convicted of petty crimes, such as theft of daily essentials, should not be sent to prison. They also found that voters strongly back reducing the prison population and investing money in activities such as drug treatment programmes instead, with 74% thinking that offenders who have committed a petty crime and who have drug or alcohol addictions belong in treatment programmes, instead of prison. What is more, the majority of voters said that they would be more likely to vote for an MP who supported reducing prison populations and investing the savings into treatment programmes, with only 16% saying that they would be unlikely to do so.

[Alex Chalk]

Does the hon. Gentleman agree with me that we need to slay the myth that this country is somehow soft on locking people up? Across the United Kingdom over 90,000 people are locked up, whereas in France the figure is closer to 60,000 people. It is important that we set the record straight, and do so loud and clear.

[Chris Evans]

I absolutely agree. From the contributions that we have had so far, the tone of the debate makes me think that we are going to produce something that will inspire confidence. I welcome all the interventions we have had so far; it has been good. The hon. Gentleman is right. Coming from a small country like Wales, I find it amazing that we have the highest prison population in western Europe.

I have always been supportive of the UK’s prison system taking a rehabilitative approach with offenders, rather than a punitive one. Rehabilitation is proven in successfully reducing reoffending rates, far more than a punitive system does. All we need to do is to look to prison systems in countries such as Norway and Finland to see that rehabilitating and educating offenders massively reduces rates of crime, and to the US and Russia to see that punishment does not.

People being imprisoned in England and Wales are mostly being convicted of non-violent, petty crimes. Many of these offenders have other issues, such as alcohol, drugs or their mental health. Sending those people to prison for a few months will not help them, and nor will it help wider society. The Ministry of Justice has published research in the past which confirms the fact that offenders given short-term prison sentences were associated with significantly higher proven reoffending than those given a community order or suspended sentence.

To reduce reoffending by those with substance abuse or mental health issues, treatment programmes would be far more beneficial than imprisonment. For younger offenders engaging in petty crime, perhaps educational workshops would be better. As the chair of the all-party parliamentary group on boxing I have been researching and learning about the benefits of sport and boxing in reducing and deterring criminal behaviour and keeping young people on the straight and narrow. It is definitely an avenue that the Government should consider exploring. However, despite a review from Rosie Meek about the benefits of sports, boxing and martial arts in prisons, the Government have yet to act on the recommendations. I want to ask the Minister whether I and a delegation from the all-party group could come to discuss her report with him.

--- Later in debate ---

[Chris Evans]

Yes. The trend in the past 20 years has been that prevention is better than cure. The NHS is getting success in encouraging people suffering from obesity to go on to fitness and diet programmes. There is some success from that approach, and it could be transferred to the Prison Service. If people with energy have time on their hands, sport can fill it.

In research published last year by the Ministry of Justice it was found that reductions in reoffending were associated with the use of court orders such as community sentences rather than short custodial sentences. The effect was greater for people with a larger number of prior offences, younger offenders, and people with severe mental health problems. For those with prior offences who have already served a number of short stints in prison, imprisonment is clearly not a deterrent but more of an occupational hazard. It is interesting, therefore, that those offenders are less likely to reoffend when given community sentences.

Community sentences can be a win-win for all. Taxpayers’ money is saved, local communities and projects benefit and offenders learn skills and the value of giving back to society instead of taking from it. Not only do short sentences do nothing to rehabilitate an offender or reduce their risk of reoffending; sending people to prison for a few months unnecessarily adds to the overcrowding in prisons throughout the country. As I mentioned, England and Wales are reaching peak prison capacity and many prisons are heavily overcrowded. The overcrowding means even more strain on already pressured prison staff and resources; there are not enough of them as it is. That in turn has an impact on the success of inmate rehabilitation, levels of violence in prisons and access to illegal drugs, not to mention the wellbeing of prison staff.

That overcrowding could be prevented if courts did not instantly resort to sentencing offenders to short prison terms for non-violent petty crimes. In the year ending June 2018 almost 29,000 people entered prison to serve sentences of six months or less. That was 47% of all sentenced offenders entering prison during that time. According to Ministry of Justice prison performance statistics for 2017-18, in England and Wales the cost of keeping one person in prison for a year stood at £37,543. That works out at about £3,125 per month for one prisoner. The annual figure is more than Brits earn on average each year, and is almost as much as the cost of a place at an elite public school. Think of the amount of money we could save and invest elsewhere, if we did not imprison people on short sentences. It would also save money in the long run, as those who serve a community sentence or enter a rehabilitation programme are less likely to reoffend and to be imprisoned again in the future.

The money saved could be invested into the programmes and used to create more jobs and train more staff in the skills required to work in rehabilitation and treatment services, as well as being spent on other public services. With the looming threat of a no-deal Brexit and a shrinking economy, we need to be more efficient and effective with money and resources, and invest in and utilise more efficient and effective options.

It is not just the placement in prison for a few months that is costly. Short-term sentences can be hugely disruptive to people’s lives and lead them to be more reliant on public and social services than they were before entering prison. Resettling a previously imprisoned offender back into the community uses up a lot of time, money and resources. Short sentences can disrupt employment and housing situations, which can lead to more people applying for and relying on universal credit. There is a risk of people being left homeless, particularly if they are released on a Friday, as happened to more than 25,000 people in 2017-18. The public services that people rely on upon release, such as access to benefits, medication, housing or other assistance, are closed over the weekend. That means there is a risk that they will not get their basic needs supplied and that they will sleep rough for at least three nights. Therefore they will be at increased risk of reoffending. From there the offender can fall into the cycle of offending and imprisonment, which racks up the costs in the long run.

I know that the Minister is committed to prison reform and reducing the levels of inmate violence and access to drugs, and that he recognises the virtue of rehabilitating and educating inmates. I commend him for that. I hope he would agree therefore that, if we truly want to protect the public and remove people from a life of crime, so that they become proactive citizens who make positive contributions to society, we must take heed of the research and the multitude of statistics showing that short prison sentences do not work. I mentioned earlier the Revolving Doors Agency’s #shortsighted campaign, and I urge the Minister to take on board its recommendations. It calls on the Government to introduce a presumption against short custodial sentences of less than six months, much as the Scottish Government have done. That would allow for such sentences to be given only when no other appropriate option was available. In cases where short prison sentences were imposed for non-violent petty crimes, the courts would have to give a reason why they had opted for a custodial sentence over a community one. What is more, that approach would not remove the court’s discretion, and would allow courts to deal with more serious and violent offences appropriately. What is proposed is a presumption, not a ban on short prison sentences.

The fact that an offender does not go to prison does not mean that they are escaping justice or retribution. Such offenders will serve their time in another way, whether through curfews and tags or community service that benefits the wider community. Many of them face pressing personal issues, including substance abuse, homelessness or mental illness. I believe that they should be given the opportunity to escape the vicious cycle of criminal behaviour. They should have help alongside serving their community sentence, so that they can be rehabilitated and learn skills that can benefit their local economy and wider society.

We have to ask: do we truly want our streets to be safe, or do we want offenders to be punished and thrown into an expensive cycle of petty criminal behaviour and short-term imprisonment? If the answer is the former, the only way forward is to focus on how we can help those people change their lives for the better, rather than throwing them in prison and forgetting about them for several months. By allowing the latter to happen we will only contribute to the rising level of crime on the streets, and to overstretched prison services. I hope that the Minister can agree with me on that, and that he will pursue alternatives to short-term prison sentences.

As I said at the beginning of the debate, I look forward to engaging in a constructive and robust conversation. I do not expect to get all the answers today. However, I want a real opportunity to engage, over the next few months, in bringing about a justice system that brings benefits and, above all, inspires the confidence of the whole community.

[Alex Chalk]

rose—

[Ms Nadine Dorries (in the Chair)]

You can only intervene in a 30-minute debate; I am afraid you cannot make a speech.

--- Later in debate ---

[Rory Stewart]

He can always intervene on me. I will first touch briefly on the issue of public protection, secondly try to take a concrete example from Bedford Prison about how short-term prison sentences actually work in reality, thirdly touch on the alternatives to prison and, finally, talk about the prison regime.

I begin with public protection. It is not a subject that can be approached with anything other than the greatest, profoundest degree of seriousness. In the end, almost the most fundamental duty of our Government is to protect the public, and in particular to protect the public against crime. Whatever we are talking about today, all parties across the House begin with a fundamental understanding that crime is wrong and that it can inflict unspeakable misery on a victim. We have only to think of recent events—victims of knife crime, innocent people smashed up in the streets, victims of burglary, victims of sexual offences—to see why we must begin with absolute horror at and abhorrence of crime.

In addressing it, we must combine our desire to punish people, quite rightly, for committing crimes, our desire to deter more people from committing crimes in the future, our desire to rehabilitate people and change their behaviour, our desire to protect the public, and our desire to pass on a strong message that we will not tolerate this misery being inflicted on the public. When we talk about this, it is important to stress that nobody, on either side of the House, is in any way questioning the horror that crime imposes on victims.

However, it is also important to look at the reality of what is happening in our prisons. On Thursday last week, I was in Bedford Prison, talking to a man. I asked, “How long have you been in for?” He said, “Three weeks.” I asked if it was his first time in Bedford Prison and he said, “No, I was here eight times last year.” I said, “How could you possibly have been in Bedford Prison eight times last year?” He showed me his arm; he was not wearing his shirt and he had tracks from his heroin addiction right the way up his arm. He said, “What happens is, I’m a heroin addict. I leave Bedford Prison after a few weeks, I don’t really know what to do with myself, I shoplift and I get put back in Bedford Prison again.” The question is, what purpose is being served by moving this man in and out of Bedford Prison eight times in a year?

[Alex Chalk]

To stop him shoplifting.

[Rory Stewart]

By all means, we can come back to that suggestion, but first I will go through some of the purposes that might be put forward. It was quite clear from my conversation with him that this was a man who had serious mental health issues, serious learning difficulties and a serious drug addiction. The first suggestion, made by the sotto voce intervention from my hon. Friend, is that perhaps the reason we have put him in prison is that when he is in prison he is not shoplifting. That is true, but we must remember that he is only in prison for three weeks. It is not a great protection of the public from his shoplifting if he is removed for three weeks and then popped back on to the streets again.

The second reason that people would suggest for his being put in prison is to deter him from committing an offence in the future. That is clearly not working: he leaves, he reoffends. The third reason he might be put in prison is to rehabilitate him—to change him so that he does not reoffend. That is clearly not working, because he is obviously reoffending. The final view that is sometimes put forward by judges or magistrates is that there is no alternative; they have tried everything else with this person, so what else can they do other than put him in prison? But it is not working. The idea that there is no alternative to putting this person in and bringing him out again cannot possibly make sense.

That brings us to the nub of the issue: prison, for somebody such as that, does not seem to be working. A better way of dealing with them would be a community sentence that addressed the fundamental problem, which is that this man is a heroin addict. The right kind of treatment programme is not about being soft on the individual, but about protecting the public. If we can turn his life around so that he is not coming out and reoffending seven more times in a year, that shop is protected and the public are protected from the misery of crime.

It is also worth bearing in mind the prison itself. Our prisons are currently facing a rising tide of violence, a rising tide of drugs and a rising tide of assaults on prison officers and prisoners. An enormous amount of that is driven by short-term prisoners. The way that drugs get into prison is frequently through prisoners bringing them in, often inside their bodies. The people who are coming in and out of those prisons most frequently are, of course, prisoners with short-term prison sentences—people such as the man I met, who are coming in and out eight times in a year. By definition, if someone has been put in prison for 20 years, they only have one opportunity to bring drugs into prison. Someone who is going in and out on short sentences is really contributing to that flow.

Furthermore, someone who is not imprisoned for 20 years does not have the same incentives to engage with the regime. Somebody who is in for 20 years will often settle down and focus on work and education; they need to make a life in prison. Somebody who is in for a few weeks simply does not have the same attitude toward prison. Therefore, from the point of view of a prison governor or prison officer, the prisoners on whom they are spending an enormous amount of time are those on short-term prison sentences.

That relates also to self-harm and suicide: people are at their most vulnerable in prison on their first night there. It is very destabilising to go into a prison. That is when much of the self-harm and suicide happens, so a lot of the prison officers’ focus is on those people who are coming in and out for a few weeks, but it is difficult to do them much good. In Durham Prison, the average length of stay at the moment is 10 days. Ten days cannot possibly be long enough to get someone into an education programme, a work programme or a drug treatment programme.

Prison is and should be a very serious thing. It is very expensive. In certain cases, it costs more than sending someone to Eton. It is incredibly complex to manage. We are dealing potentially with people who could be terrorists, murderers or sex offenders and with a complicated regime, moving people in and out of cells, keeping them safe in prison and dealing with self-harm. That requires an enormous amount of professionalism. Having a safe, stable, decent prison, which would be helped by not having prisoners on short-term sentences, would help us to focus on the more serious prisoners and to do the professional work to turn their lives around.

We must get the right kind of community sentence in place, ensure that those people are not destabilised by being dragged in and out of prison all the time and recognise that the wrong type of short sentence is long enough to harm them but not long enough to change them. It is long enough to harm them because they lose their house, their partner and, if they have one, a job; they come into prison, and—bang!—a few weeks later they are back out on the streets again, with none of the support networks that might keep them stable, they commit crime again and they are back inside prison.

If we can find a way of working with them in the community, we can prove what is absolutely clear from all the research we have done: they are less likely to reoffend after a community sentence than after a short prison sentence. If I take that man in Bedford Prison as an illustration, that individual, given a community sentence, is less likely to go on to commit that ninth shoplifting offence than if he is put in prison for the eighth time. If he is put in prison for the eighth time, he will almost certainly go on to reoffend; in fact, in two thirds of cases, short-term prison sentence prisoners do so. That is endangering the public, not protecting the public.

What I have talked about today is an expansion on what the hon. Member for Islwyn said, referring to the problem that we face. The solution is much more difficult. We will have to bring parties together in Parliament, we will have to discuss it with judges and magistrates, and above all we will have to discuss it with the public. Our primary obligation is to protect the public from crime, to show our moral abhorrence at crime and our sympathy of its victims, and also to explain that in order to protect the public, we need to be practical and focused. One way of being practical and focused is to be honest about the problems of short-sentence prisoners. I will allow the hon. Gentleman some time for closing remarks.

Bailiffs: Regulatory Reform

Alex Chalk Excerpts

Wednesday 9th January 2019 Westminster Hall

[Alex Chalk (Cheltenham) (Con)]

Does my hon. Friend agree that reputable firms should be the loudest advocates for a system of regulation, so that they can mark themselves out from the rogue agents that behave unconscionably and make innocent people’s lives a misery?

[Rachel Maclean]

Yes. I thank my hon. Friend for that intervention; I completely agree. I was going to say that this particular firm is not against further regulation at all. It merely makes the point that it needs to be done in consultation with the debt enforcement agencies, looking at the best practice of some of the good agents, who carry out vital work that needs to be done to recover funds that will go into our local government coffers. When I visited that firm in my constituency, it made the point that its recovery rate is much more effective than those of some of its competitors. It is the second largest enforcement agency in the country and covers 16% of all local authorities’ collections. It is not the one that the hon. Member for Wolverhampton North East (Emma Reynolds) referred to, and it does have a good reputation locally. I wanted merely to place that on the record, and I agree with my hon. Friend that we need to totally overhaul the system.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

Alex Chalk Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 12th December 2018 Commons Chamber

[Yasmin Qureshi]

The procedure rule committee obviously has a place in our judicial system, and we accept that judges and others are involved in it, but everyone knows that there are times when, because of financial pressures, services are cut to the bare minimum. We believe that, to protect our judicial system, the functions concerned should be clearly set out, and those that will have an effect on someone should be decided by an authorised person with a legal qualification.

[Alex Chalk (Cheltenham) (Con)]

The hon. Lady is getting perilously close to suggesting that judges will do justice when they are inside a court, but will be incapable of ensuring that justice is done when they are outside a court, on the procedure rule committees. Will she make it crystal clear that judges will always, in all circumstances, want to do justice, and can be trusted to do so?

[Yasmin Qureshi]

We are not suggesting that judges will somehow not be independent. As I have said, I have the highest regard for our judiciary in court, although from time to time we might disagree with the decisions that judges reach. In the real world, however, there are often targets to be met and financial constraints to be considered. We are saying that when the procedure rule committee is making rules, it should be guided by Parliament.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [ Lords ] (First sitting)

Alex Chalk Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 4th December 2018 Public Bill Committees

[Yasmin Qureshi]

My hon. Friend makes an excellent point. We know that more and more people are now representing themselves in court because of cuts to legal aid. If those making decisions—those may appear to be administrative but may be quite crucial to these people—are not legally qualified and trained, errors are more likely to occur, because we now have so many people representing themselves who are not familiar with court processes or the courts. That is on top of the fact that so many courts are now being closed, and a lot of the work is being done off-site by means of technological improvements. Many cases used to be disposed of in a physical court building, and there would be judges, lawyers and people who could assist and give advice and information. Now, with so much being done outside of court buildings and from call centres, there is even less help available.

I will give an example. When I was prosecuting, defending or in court, someone would sometimes turn up who had no legal representation. They would be really worried about what was going on. I and many of my colleagues would give informal advice; it was not legal advice, but we could point them in the right direction—we could suggest things they could try. There was somebody to give them advice or assistance; the court clerks or staff in the court were also able to direct people informally. However, with fewer and fewer people going to court, more and more things being done online, and more and more stuff being carried out in call centres, where someone does not know who they are speaking to or what qualifications or level of experience they have, it is even more important to ensure we have this safeguard.

It is okay to have laws, but if we have no mechanism to enforce them, or to ensure that they are done properly, justice is not served. Therefore, the complete lack of information in the Bill about who the authorised people will be, and even about what work they will do, is completely wrong. That is why we feel strongly about it, as we mentioned on Second Reading in the House of Commons, and in the other place. To date, the Government have taken no notice of that.

We also have to recognise that some of the authorised people will be employed directly by Her Majesty’s courts and tribunals, which raises questions about accountability and independence. They may be more subject to pressures because of administration. Again, therefore, we need something to show that the people who will do these things are qualified.

Qualified barristers, solicitors and lawyers, even when they work in the courts system, have an appropriate professional body with codes of conduct they have to abide by. If they do not abide by those codes of conduct, they could be struck off from their practice. However, if the people who carry out the work are not legally qualified, such as administrative staff or clerical officers, they will not have to think about their independent professional bodies. In fact, they will probably be more subject to pressures of administration to speed things up. If somebody asks for an adjournment, staff might say no; if somebody wants certain documents to be disclosed, they will say that that cannot be done, because they will be under pressure to speed things up and deal with cases quickly. They will not be as concerned as a barrister, a solicitor or a chartered executive about what their professional bodies will say.

We also do not know what kind of functions these people will be given. As my hon. Friend mentioned, something that seems straightforward could actually be quite complicated. I refer to disclosure issues in civil cases, as well as in the criminal courts. Disclosure is an important part of a case proceeding properly. Someone may well ask for certain information, and the person at the other end will say, “No, you don’t need it,” but we do not know. Because they do not have the legal expertise and knowledge, there is a greater chance of errors occurring and things happening that perhaps would not happen if a legally qualified person were exercising those powers.

The Government’s approach is that all these issues can be dealt with by the procedure rule committees, which are made up of judges and other practitioners. They are also under pressure and financial constraints, however, so they would also have to look at pressures and so on, and they might not be able to do things as independently as we might ask.

[Alex Chalk (Cheltenham) (Con)]

The hon. Lady is, of course, making important points, but we can have a degree of confidence that the judges who head up the committees, who have shown themselves to be scrupulously and fiercely independent, would continue to behave in exactly that way. Does she not agree?

[Yasmin Qureshi]

I have, of course, the utmost regard and respect for our judiciary, but I believe that, in the procedure committees, financial constraints and pressures sometime come into play in trying to speed things up through the courts system. The ethos is that a case should be dealt with very quickly—there is nothing wrong with that—and that there should be minimal interactions between lawyers in the court process. When the procedure committees make certain rules, such as defining who the authorised person is, what is wrong with Parliament saying that the starting point should be that those authorised persons must have been legally qualified for at least three years?

It is also important that we have an idea about what kind of things the authorised persons can do. Procedure committees can make rules, but they may be constrained by trying to get things through quickly. There may be things that they think that authorised persons can do, but, in fact, they should not, because they are not judicial. I do not see what is wrong with us, as Parliament, saying, “Look, this is the bare minimum that the procedure committees should be thinking about.” Then they can add to it.

[Alex Chalk]

I am grateful to the hon. Lady for giving way a second time. May I respectfully press her a little on this? On the one hand, she says that she has enormous respect for the procedure rule committees, the judges and the highly qualified people who occupy these positions, and that they would always act in a way that is consistent with justice. On the other hand, she says that, actually, they will not, because they will ensure that a desire to avoid delays trumps justice. She cannot have it both ways. If she trusts the judges, she needs to come out and say that she trusts them to act in the way that they have, in time-honoured tradition, which is by putting justice first.

[Yasmin Qureshi]

My observations relate to when judges are dealing with an individual case. Of course, we know that they are independent, but when someone becomes part of an administrative body, a procedure committee or an arm of the state—I mean that in a loose way, not in terms of a formal relationship—sometimes the criteria that they look at are different from when they are dealing with an individual case presented before them.

I will give an example, albeit not one that relates to judges. The Crown Prosecution Service, an organisation for which I worked for a number of years—I still have friends who work in it, even though I left years ago—has had different people serve as Director of Public Prosecutions. However, prosecutors who have been there for a long time say that, bar perhaps two DPPs who were really concerned about ensuring that the department was fully financially resourced, and who actually fought hard for it to get resources, the other DPPs did not make that sort of effort. People do act for administrative purposes.

The reality is that senior people at the top of organisations, when they are doing administration and are running institutions, look at things such as money and financial administration, try to save as much money as possible, and try to push things along as quickly as possible, because that looks good in their statistics. Because of that, we would say that what we are asking for is not too weighty. We have tabled very reasonable amendments. The people who will make some of these enormous decisions should be legally qualified and—we will come on to this later—we should consider what kind of things they can actually do. I do not think there is anything wrong with giving a steer to procedure committees. They can deal with some of the other rules, but we should have some basic minimum standards.

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[Lucy Frazer]

I am sorry if the hon. Gentleman has not experienced the appropriate level of judicial engagement or appropriate judgments in courts. I recently went to the family court in London, and I have been to courts across the country, and I have spoken to magistrates who operate in the family courts. The expertise and dedication I see is commendable. We can stand still, do nothing and just let our courts operate in the way they are operating, or we can sit back and reflect on how we can improve our court system. We are trying to do the latter through the Bill. We are trying to improve people’s experience of the courts, recognising that funds and resources are not unlimited and that we need to use them as well as we can. On listing, my Department is looking at a listing programme to ensure that lists operate as effectively as possible.

It is simply not necessary for all authorised staff exercising judicial functions to possess legal qualifications. The qualifications and experience staff need will depend on the nature of the work they carry out. Legal qualifications of the level that would be required by amendment 5 not only are far too high for the routine and straightforward case preparation tasks that we anticipate many authorised staff may carry out, but may not be the most relevant qualifications for staff in different jurisdictions. For example, it is more helpful for a registrar in the tax tribunal to be a tax professional by background than to be a legal professional. Where powers currently exist, rule committees already determine the qualifications staff need to exercise particular functions, and that works well. Such committees can focus qualification and experience requirements on what is most relevant to the work that those staff carry out.

Amendments 3, 4 and 5 would all set the bar for qualification prohibitively high and rule out a large proportion of Her Majesty’s Courts and Tribunals Service staff from giving legal advice or exercising judicial functions, even though they may have been doing either or both for a number of years.

[Alex Chalk]

Will the Minister be kind enough to address the issue of the approach we can expect judges to take in rule committees? It is my experience that they show themselves in court to be scrupulously fair and focused on justice. Does she agree that there is no reason to think they would abandon those principles when they sit out of court on a rule committee to make these important judgments?

[Lucy Frazer]

My hon. Friend makes an extremely valuable point. Rule committees are made up of members of the judiciary and legal professionals, who take their roles incredibly seriously. Lord Thomas said on Second Reading in the other place that

“it is important to stress the degree of control inherent in the Bill by the use of the rule committee. I was a member of and chaired…the Criminal Procedure Rule Committee, which I can assure you is a highly representative body with many representatives of the legal profession.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

It is important to note his experience of sitting on and chairing a rule committee. I actually sat on an insolvency rule committee when I was at the Bar, and I do not think anyone mentioned costs. We were concerned with ensuring that the procedures we used in court day in, day out worked well, and that they worked well for our clients, too.

A loss of expertise would render the provisions in clause 3 and the schedule unworkable. I should add that a member of staff will not be able to give legal advice or exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or their nominee, or by the Senior President of Tribunals or their delegate. Authorisations are therefore ultimately the responsibility of the judiciary, who will not authorise staff unless satisfied of their competence.

The Government’s position is consistent with the approach taken over many decades and is supported by both current and former members of the senior judiciary. Lord Neuberger, former President of the Supreme Court, said that the amendments place

“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”

He went further, reflecting that there

“will be many decisions”

for which the level of experience set out in the amendments

“would be appropriate, but there will be others where less experience would be adequate for the decision-making.”—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.]

I want to reassure hon. Members that we have listened to the concerns expressed here and in the other place about linking the qualifications of staff to the judicial functions that authorised staff may carry out. That is why we added further safeguards to the Bill in the other place by restricting the functions that staff will be able to exercise. In the light of that, Lord Marks of Henley-on-Thames said:

“we are not persuaded that it is necessary for the authorised person exercising the remaining powers—some of which are trivial, some minor and some of more substance—to be a qualified lawyer or one of particular experience.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 414.]

Before I close, I would like to respond to a number of the points made by the hon. Member for Bolton South East in putting forward her amendments. She has mentioned for the second time in her submissions cost-cutting. What we are doing in the Bill is trying to achieve a position whereby judges are deployed in the most effective way to bring justice to the people whom they serve. We are trying to ensure that jobs are appropriate for those who carry them out, and that they have the appropriate qualifications. The hon. Lady suggested that only barristers, solicitors and judges—that is, people who are legally qualified—understand justice. That is self-evidently wrong. A large part of our criminal justice system is the justice dispensed by magistrates, who are volunteers and are extremely able. As I have said, many people are already carrying out the functions, and carrying them out well, in courts and tribunals across the country.

The hon. Lady mentioned court closures. Of course, this is not a debate about court closures; it is a debate about who carries out functions in the courts that operate. She also suggested that call centres are having a detrimental impact on justice. Our call centres are actually improving justice, because, as can be seen from the take-up rate, people are speaking to someone who can answer their concerns much more speedily. The satisfaction of people ringing up is improved as the pick-up time is improved, because it is now dedicated people picking up the phone, rather than people in courts, who have a large number of things to do.

I hope that the hon. Lady feels able to withdraw the amendment, based on the explanations that I have put forward.

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[Yasmin Qureshi]

Amendments 6 and 7 have been tabled to ensure that there is a safeguard for claimants who do not accept a decision made by authorised persons. There should be a right to a statutory reconsideration, and the claimant should be able to apply in writing, within 14 days of the service of order, to have a particular decision reconsidered by a judge of the relevant court. They are strengthening provisions. As we do not know who authorised persons will be or what delegated functions will be given to them, we believe that if claimants disagree with important decisions, they should have a statutory right to reconsideration. The Bill makes no reference to that.

Amendments 8 and 9 relate to the issue of material impact. When a decision is being made on whether there a should be a reconsideration within 14 days, we ask that there be consideration of whether the function could have a material impact on the substantive rights of the parties. That means that we accept and acknowledge that one should not be able to ask for reconsideration simply because one disagrees with the decision of the authorised person; one must have a cogent reason. There must be proper grounds for requesting a reconsideration. We would define and decide what is an appropriate reason for asking for a reconsideration by assessing the limb of material impact on the substantive rights on the parties, which I think speaks for itself. That relates to decisions made by authorised persons that are material and important to the claimant, who should be able to ask for a reconsideration of that decision.

We suggest that the application in writing should be sent within 14 days of the decision, but it could be 21 days if the Government wished to change that. We think that 14 days is the minimum period that should be allowed for the reconsideration application to be made. The Government’s intention is to leave the procedure committee to decide fully what “material impact” means, whether there should even be reconsideration options for claimants, and by what processes that must be done.

We are effectively asking for safeguards for litigants. I will try not to repeat the same points, but it is important to remind the Committee of a point I made earlier, which was that a number of claimants are not legally represented because of cuts to legal aid, both civil and criminal. Many people now go to court without any legal advice, and are basically litigants in person or may have a McKenzie friend. To ensure that decisions are made properly, if there is a material impact on the substantive rights of parties, claimants should be able to ask for a reconsideration of the decision by a legally qualified judge of the court. People will have more confidence that the decision has been made properly, if it is made by a judge.

It should not be left to the procedure committee to decide, in theory, whether to allow reconsideration or to decide, off its own bat, what kind of decisions should be up for reconsideration. We ask that it determine and put into place rules on how reconsideration applications could be done.

Again, those three things are there to enhance the right of the ordinary person going into the court system and to ensure that our judicial system maintains the highest standards, as accepted throughout the whole world. For Parliament not to have democratic oversight of the matter, and not to indicate what the procedure committee should do, is a derogation of our duty to the people of this country. We are effectively looking after their interests. A judgment or decision by an authorised person should be subject to review by a judge. We accept that should not be done gratuitously, or in cases that do not warrant it, but if the decision has an impact on the rights of the person, that should be allowed. We ask the procedure committee to set out a procedure for applying for judicial reconsideration.

[Alex Chalk]

The hon. Lady makes a fair point; I will be interested to hear what the Minister says. How does she propose that an assessment be made about whether the decision truly had a material impact? A decision on whether to grant an adjournment or on whether to allow evidence to be admitted could in certain circumstances have a material impact, but in other circumstances might not. How would she ensure that the procedure to determine that was effective and efficient, and did not clog up the courts?

[Yasmin Qureshi]

We could include the criterion of the impact on someone’s rights. When we look at a case, we can work out whether an adjournment or a particular issue regarding disclosure would have an impact. The legislation should have that as a criterion in determining whether there should be judicial reconsideration. Obviously, we assume that the procedure committee would set out a procedure whereby, when a person writes to the court to ask that something be reconsidered, it goes to a judge, who works out whether this was something that impacted on the person and should therefore be subject to reconsideration. The legislation does not do any of those things.

Although we accept that some administrative functions carried out by judges can be delegated to the “authorised people” defined in the Bill, when a judicial legal function is given to other people, there should be a right to ask for reconsideration of the decision if a litigant is unhappy with it. To avoid anything flimsy, we have helpfully put in the impact aspect, so that reconsiderations are not a matter of course but are limited to appropriate cases. We would leave it to the procedure committee to make rules as to what the procedure would be.

The amendments are perfectly reasonable. The Minister mentioned that some Lords in the other place said that the provisions were okay, but if we look at the Hansard, Lord Marks of Henley-on-Thames, Lord Pannick and others said that they had concerns, not just about the issue of 14 days’ reconsideration, but also in relation to the authorised persons. The Government have put all these things about judicial functions, delegated persons and authorised people into one clause, but concern was expressed in the other place about the need to make the legislation better. Those are my words.

We have gone further than some of the noble Lords in the other place, but we tabled the amendments not for the fun of it, but because we genuinely and sincerely believe that they would ensure that processes were carried out properly, justice was done properly, and properly qualified people would deal with issues. If there are decisions that people are unhappy with, they should have the right to ask for reconsideration within 14 days, if that is appropriate—or 21 days; I would be happy with whatever additional days the Government wished to add.

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[Alex Chalk]

Those are reassuring words. Will the rule committee have the right to request when, in certain circumstances, an exercise of discretion that might otherwise be innocuous—say, for the sake of argument, granting an adjournment—could lead to a material impact on the rights of an individual, that there could be a right of review in those circumstances? Does the Minister follow? It is important that that flexibility is in place.

[Lucy Frazer]

I think that is right. It will be the rule committee that will set out the procedure and requirement for any reconsideration. If it considers what my hon. Friend has mentioned as an appropriate way forward, it could make those determinations.

The noble and learned Lord Thomas, the former Lord Chief Justice said:

“I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness”—

that is, Baroness Chakrabarti. He added that the Government’s approach provides the right balance:

“It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation”.—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425-426.]

Amendments 8 and 9 relate to the right of judicial reconsideration and the substantive rights of parties to cases in the courts and tribunals. As I mentioned earlier, the amendments we made to the Bill in the other place now mean that the rule committees will, when making any rules to allow authorised staff to exercise judicial functions, have to consider whether each of those functions should be subject to a right to reconsideration. They would require that, in doing so, the rule committees should also consider whether the function in question would be capable of having a material impact on the substantive rights of the parties.

The amendments appear to have been prompted by concerns about the compatibility of the provisions in clause 3 and the schedule with the rule of law, the independence of the judiciary and article 6 of the European Convention on Human Rights. In the circumstances, the Government believe the amendments are unnecessary. The independent procedure rule committees have for many years been making rules about practice and procedure which impact on court users. In carrying out this public function, they must ensure that the procedure rules are compatible with fundamental rights, including rights under the convention. I note that the overriding objective of the criminal procedure rules, for example, explicitly refers to these rights.

Other safeguards in the Bill will help to ensure compatibility with the right to a fair trial. Most importantly, the Bill provides that all court and tribunal staff who are authorised to exercise judicial functions will now be independent of the Lord Chancellor when doing so, and subject only to the direction of the Lord Chief Justice or their nominee or the Senior President of Tribunals or their delegate.

The Bill also provides, for the first time, protections from legal proceedings and costs in legal proceedings and indemnities for all authorised staff when carrying out judicial functions, which will further safeguard their independence. We have, of course, strengthened these safeguards by limiting the types of functions that authorised staff will be able to exercise, through the Government amendments we made to the Bill on Report in the other place.

I hope I have reassured the Committee and the hon. Member for Bolton South East that there is no issue of compatibility between the measures in the Bill and article 6 rights, the rule of law or the independence of the judiciary. The Bill strikes the right balance between ensuring appropriate safeguards and transparency of decision-making, and leaving the jurisdictional rule committees the discretion to determine the most appropriate mechanism for reviewing decisions by authorised persons. I urge the hon. Member for Bolton South East to withdraw her amendment.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

Alex Chalk Excerpts

2nd reading: House of Commons
Tuesday 27th November 2018 Commons Chamber

[Mr Gauke]

Our court reform programme as a whole, which I will come on to, will ensure that we use technology wherever possible. It is right that we embrace that. The Bill is part of the process—it is not all of the process—that will ensure that we modernise. I have cited in the past ways in which artificial intelligence, for example, is being used within the legal profession. An example I have given is a case where AI was used to check a number of contracts to spot potential errors. The rate of success of the AI was somewhat better than that of the experienced lawyers, and if I remember rightly the task was done in 26 seconds rather than 92 minutes. I make that point to illustrate the opportunities in terms of technology and the law.

[Alex Chalk (Cheltenham) (Con)]

Innovation and modernisation are vital, but will the Secretary of State take this opportunity to recognise that the single most important strength of our judicial system is the judiciary who work in it and that everything must be done to ensure that we have a broad pipeline of talent so that they continue to be the best in the world?

[Mr Gauke]

I very much agree. We have a judicial system that is widely respected around the world for its independence and excellence, and that must long continue. I suspect that my hon. Friend is hinting at the question of how we can get more outstanding candidates to apply to the judiciary. It is right that we should address that challenge. He is right to suggest that this is one of our strengths as a country. It will be important in the years ahead as we leave the European Union that our legal system should continue to be widely respected. I believe that there are great opportunities for the UK to become even stronger as a legal centre, and I am keen for that to happen.

--- Later in debate ---

[Mr Gauke]

I am grateful to my hon. Friend for making that point, although he takes me away a little from the terms of the Bill. I realise that there is a debate about that matter, and there are arguments either way about the current age limit. I have certainly received representations calling for an increase on the current age of 70, and we continue to look closely at those arguments. I believe that there has to be an age limit, and it is a question of judgment as to what it should be. I would be delighted to discuss this with my hon. Friend in the Tea Room if the opportunity to do so should arise.

[Alex Chalk]

Building on the point that was well made by my hon. Friend the Member for North Dorset (Simon Hoare) about independence, may we have an assurance that under the Bill the procedure rule committees that decide what the authorised staff can do will be able to exercise that discretion free from any interference from the centre, so that they can ensure that only those jobs that ought properly to be delegated to those staff are so delegated, and that extraneous considerations such as cost need not be forced upon them when they make their decisions?

[Mr Gauke]

My hon. Friend brings me back to the Bill and makes a good point—one which came up on several occasions during the deliberations in the other place about the extent to which we should be prescriptive, or whether powers should be left with the rule committees. I share his instinct that as much as possible should be left to the rule committees, because they are best placed to make such assessments. Indeed, that leads to points made by distinguished retired judges in the other place about not being over-prescriptive. Such matters may be a point of discussion this afternoon or at the Bill’s later stages.

I now turn to the Bill in greater detail. The measures will help to provide the greater flexibility and responsiveness that we need within our court system. That includes freeing up judges’ time from the most routine tasks associated with court cases. The Bill will build on existing powers that already enable staff in most courts and tribunals to be authorised to exercise some of the functions of judges. It will continue to allow appropriately qualified and experienced staff in the civil, family and magistrates courts, the High Court, the Court of Appeal, the Court of Protection and tribunals to be authorised to carry out uncontroversial and straightforward judicial functions under judicial supervision. The Bill will enable those arrangements to be extended for the first time to the Crown court, where court officers can only currently undertake formal and administrative matters. Allowing court and tribunal staff to exercise a wider range of judicial functions will potentially free judges up from undertaking more regular tasks, such as changing the start time of a hearing or changing a pre-trial preparation hearing date, so that they can focus on the more substantive matters of the case.

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[Mr Gauke]

The hon. Gentleman takes me further in the direction of the debate about the court closure plan, but we need to ensure that our resources are deployed as efficiently and effectively as possible. In that context, we have reduced the number of courts, but that money makes a contribution to our overall finances and can be reinvested as part of the court reform programme. We have to take every opportunity to make use of new technology to ensure that the experience of the justice system—the hon. Gentleman rightly highlights that witnesses are important in many cases—is as positive as possible.

I have touched on this already, but safeguards are important. Clearly, the delegation of certain judicial powers to court and tribunal staff needs to be done sensitively and sensibly, and with appropriate safeguards. Independent, judiciary-led procedure rule committees, which govern the rules within courts and tribunals, will determine which functions court staff may exercise in each jurisdiction and what qualifications and experience they will need. Those rules will then be subject to parliamentary scrutiny. All staff authorised to exercise judicial functions will ultimately be accountable to, and subject to, the direction of the Lord Chief Justice or the Senior President of Tribunals.

I am grateful for the valuable insight that Members of the other place brought to debating and scrutinising the measures in the Bill, particularly in relation to the exercise of judicial functions. Many of them drew on their own wealth of judicial experience and expertise in considering the practical issues of implementation.

Concerns were raised in the other place about the safeguards in delegating judicial functions to authorised staff. For example, concerns were raised that certain powers, particularly those that affect the rights and freedoms of citizens, should only ever be directly discharged by the judiciary. Indeed, the right hon. Member for Kingston and Surbiton raised that point.

We have listened to those concerns, and we tabled amendments in the other place that will prevent specific judicial functions from being undertaken by authorised staff, including authorising a person’s committal to prison; in most cases, authorising a person’s arrest; granting certain injunctions; making orders for repossession of residential property, where the orders are contested; and making search orders.

We tabled amendments that will require the procedure rule committees, when making rules to allow authorised staff to exercise judicial functions, to consider whether the rules should include a right to judicial reconsideration of decisions made by such staff. The amendments will also require that, if a procedure rule committee decides against the creation of such a right, the committee will have to inform the Lord Chancellor of its decision and of the reasons for it. This will ensure much greater transparency and accountability.

The measures in the Bill strike the right balance between creating a framework for the delegation of judicial functions to authorised staff, with appropriate safeguards, and giving discretion to procedure rule committees and the senior judiciary to make the arrangements work in practice.

[Alex Chalk]

Does my right hon. Friend agree that the principle of delegating functions to authorised staff is not, of itself, new? There has been a successful history, particularly in the magistrates courts, of delegating powers to justices’ clerks to carry out a number of functions, which even include such matters as issuing summonses or requesting pre-sentence reports. The principle is in place but, of course, the execution is vital.

[Mr Gauke]

My hon. Friend is right, and his experience is a benefit to the House. He knows of what he speaks. This principle is not new, but it is one where we think we can go further, to the benefit of the courts and tribunals system and of the users of that system. He is absolutely right.

A balance needs to be struck on the safeguards, and we believe we have found the right balance. Indeed, the position was strongly supported in the other place by Lord Thomas, the former Lord Chief Justice, and Lord Neuberger, a former President of the Supreme Court, both of whom have a wealth of experience in this area, having chaired procedure rule committees. The combination of Lord Thomas, Lord Neuberger and my hon. Friend the Member for Cheltenham, very distinguished lawyers all, is one that should reassure the House.

Lord Thomas warned on Second Reading against putting too much detail into the Bill:

“Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

Similarly, Lord Neuberger warned in Committee of placing

“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.]

Lord Marks also warned against setting too high a bar on the qualifications of court and tribunal staff exercising judicial functions:

“It seems…that the purpose of this part of the legislation is to increase efficiency and…to everybody’s advantage…the speed of decision-making… Having a legislative requirement that all delegated decisions must be taken by qualified lawyers with a minimum experience requirement runs the risk of frustrating this objective.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 414.]

I make those points in anticipation that this may be an issue that we debate further this afternoon, but I think the case is persuasive.

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

It is a pleasure to follow the hon. Member for Bolton South East (Yasmin Qureshi) and my right hon. Friend the Lord Chancellor.

In this debate, there is a danger of allowing the ideal to become the enemy of the good and the deliverable. I rather share the regret of the shadow Minister that this is not a larger Bill. I was a great supporter of the Prisons and Courts Bill that was lost prior to the 2017 election, as were all Members on the Treasury Bench today. There were clauses in the Prisons and Courts Bill that I hope will be brought back soon, and the prevention of cross-examination of victims in domestic abuse cases is certainly one of them. It is important not only that that issue be resolved, but that the court-appointed advocates who undertake that work be properly remunerated, and I say that in the context of the ongoing review of legal aid. It will be necessary for those advocates to prepare the cross-examination with particular care, because such cases always require a particular degree of sensitivity.

Removing the ability of the complainant in person to cross-examine is right and proper, but proper means—proportionate with the equality of arms—must be put in place and properly funded to enable the trial to be conducted fairly. I understand the Lord Chancellor’s point that it may not be appropriate to put that in this Bill, but that is not a reason not to bring forward the fully thought through and worked out provisions at the earliest possible opportunity. That is a digression from this worthwhile Bill, which does a number of valuable things, some of which I will mention.

Reference has been made to the debates in the Lords. The Lord Chancellor was right to say that proceedings in the Lords were conducted in a particularly constructive and co-operative spirit. Maybe that was because of the very high percentage of lawyers participating in the debates in the other place. It was a civilised and careful consideration of the Bill, in which I think there was—with respect to the Opposition Front Bench—rather less attempt to politicise some of these provisions than we have heard this afternoon. Many of the measures in the Bill are important and technical reforms that require a statutory basis, and should be welcomed.

I noticed the discussion of changes to judicial titles during the debates in the other place. If I have a slight regret about this Bill, it is one that I share with the noble Lord Mackay of Clashfern about the abolition of the title of justices’ clerk. I can understand why that is proposed, but having practised in the criminal courts for 30-odd years, I have a certain affection for the title, as did Lord Mackay. But that change goes with this Bill, so maybe it is a price that has to be paid for modernity. Perhaps I am being uncharacteristically reactionary in regretting the disappearance of the title of stipendiary magistrate as well. I always thought that “Mr St John Harmsworth, stipendiary magistrate at Marlborough Street” had a greater ring to it than “Mr St John Harmsworth, district judge (magistrates courts)” might ever have done, but I suppose the change did give a certain degree of standardisation.

We have been talking about appropriate levels of qualification. There was a time when justices’ clerks did not have to be legally qualified. I do not say that was a good thing. I remember appearing quite often, as a very young barrister, at Billericay magistrates court in Essex in front of the last non-legally qualified justices’ clerk in the country. He had some sort of grandfathered rights that went back to a time when one could do 10 years as a justices’ clerk and that was regarded as giving one the qualification for appointment. [Interruption.] I see that my hon. Friend the Member for Cheltenham (Alex Chalk) is much shocked by these things. We had to be terribly robust in those days. I remember that I managed to persuade that justices’ clerk to dismiss a case at half time on the basis that a rice flail was not an offensive weapon per se, because it might have had a legitimate use for flailing rice. Whether that was going to happen on Basildon high street, I am not sure.

We have moved on, and the justices’ clerks are much more professional now, and much more fully integrated, so despite my regret about the loss of the title, the new one does reflect more adequately the role that they now have as legal advisers to a very important part of our system—the lay judiciary. In fact, the Justice Committee heard evidence from representatives of the Magistrates Association today regarding the updating of our previous report on the magistracy. They can play a critical role in this. I think that they broadly welcome the attempts at modernisation of practice and procedure that this Bill will assist.

[Alex Chalk]

Like the Chairman of the Justice Committee, I welcome these measures to modernise the process. However, this should not be allowed to distract from what remains a fundamental problem, which is that there are not enough people coming into the judiciary. We need to ensure that they are properly incentivised to do so and rewarded for doing so, because the backlog of cases in the Court of Appeal and elsewhere will not be resolved by these measures alone. Does he agree?

[Robert Neill]

I totally agree. These are useful, practical measures on their own, but they are by no means a solution to the problem. In fact, they are but a very small part of the solution.

I am a bit concerned by some of the Law Society’s suggestions in briefings that some of the broader programme of courts reform is posited on making savings in judicial posts and appointments of about £37.5 million. I hope that the Lord Chancellor—or the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), when she responds to the debate—will be able to set our minds at rest on that. We can make savings by using staff qualified at the appropriate level in what one might term purely interlocutory or procedural matters, but all the decisions on issues of substance in any case—whatever the sum involved or whatever the nature of the charge, in a criminal case—have impacts on the individuals concerned, and they should, in my judgment, be taken only by properly qualified lawyers in an open court process. That is important.

We cannot allow the valuable nature of this Bill to take away from the fact that we need an injection of resource into the criminal justice system. We are seeing a shortfall in appointments to the High Court bench on a regular basis. A number of hon. Members have talked about the integrity of our justice system and the importance of its legal standing, and the quality of the judiciary is key to that. We also see difficulties in making sufficient appointments—full time, at any rate—to the circuit bench. It is easier with recorders, I grant, because they are able to sit part time, but there is a real issue there.

There is also a real issue, as my hon. Friend the Member for Cheltenham knows, about morale. I think that the Lord Chancellor and the Under-Secretary of State understand that and take it on board. I do not expect them to be able to wave a magic wand and solve everything overnight, but it is important to stress these things. Technical changes are useful as far as they go, but they cannot underpin what is essentially a people-based system.