Oral Answers to Questions

Debate between Alex Chalk and Lucy Frazer

Thursday 23rd May 2019 Commons Chamber

[The Solicitor General (Lucy Frazer)]

May I start by acknowledging the work of my hon. and learned Friend the Member for South Swindon (Robert Buckland), my predecessor in this role? I wish him well in his new post in the Ministry of Justice.

I would also like to acknowledge the tremendous work that legal professionals up and down the country do for free every day to help people who are in need and require legal support. The Attorney General and I are the Government’s pro bono champions—I am delighted to take up that role. Earlier this month the Attorney General’s pro bono committee met and discussed how the Attorney General’s Office can help to raise awareness of pro bono work, and I am greatly looking forward to building on this work.

[Alex Chalk]

The sheer volume of legal advice and assistance that lawyers offer free of charge too often goes unremarked, but is remarkable. It rights wrongs, protects rights and strengthens the rule of law; it deserves our immense gratitude. Will my hon. and learned Friend join me in paying tribute to those lawyers who give up their time to offer support to others, in particular to victims of atrocities such as the Manchester Arena bombing?

[The Solicitor General]

My hon. Friend is a very well respected criminal barrister and has done a great amount of work here as a member of the Justice Committee. He is absolutely right to highlight the incredible work that lawyers undertake for free, which does go unrecognised. He is also right to highlight the Manchester attack. We are in the anniversary week of that terrible tragedy and my thoughts are with all those who have suffered. The Manchester Law Society did a call for support and over 100 firms and barristers offered free advice and representation.

Information Disclosure: Pre-trial Abuse of Process Hearings

Debate between Alex Chalk and Lucy Frazer

Wednesday 22nd May 2019 Westminster Hall

[The Solicitor General (Lucy Frazer)]

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

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

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

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

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

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

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

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

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

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

[Alex Chalk]

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

[The Solicitor General]

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

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

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

Debate between Alex Chalk and Lucy Frazer

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

[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.

--- Later in debate ---

[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.

Oral Answers to Questions

Debate between Alex Chalk and Lucy Frazer

Tuesday 13th November 2018 Commons Chamber

[Lucy Frazer]

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

[Alex Chalk (Cheltenham) (Con)]

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

Voyeurism (Offences) (No. 2) Bill

Debate between Alex Chalk and Lucy Frazer

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

[Lucy Frazer]

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

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

[Alex Chalk]

Will my hon. and learned Friend give way?

[Lucy Frazer]

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

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

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

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

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

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

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

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

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

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

Debate between Alex Chalk and Lucy Frazer

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

[Lucy Frazer]

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

[Alex Chalk (Cheltenham) (Con)]

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

[Lucy Frazer]

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

--- Later in debate ---

[Lucy Frazer]

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

[Alex Chalk]

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

[Lucy Frazer]

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

Voyeurism (Offences) (No. 2) Bill

Debate between Alex Chalk and Lucy Frazer

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

[Lucy Frazer]

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

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

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

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

[Alex Chalk]

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

[Lucy Frazer]

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

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

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

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

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

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

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

[Lucy Frazer]

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

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

[Alex Chalk]

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

[Lucy Frazer]

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

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

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

Oral Answers to Questions

Debate between Alex Chalk and Lucy Frazer

Tuesday 24th April 2018 Commons Chamber

[Lucy Frazer]

I am aware of the recent document produced by the Law Society. Of course, it is important that we have professionals at every level, that we have a diverse profession and that we encourage young people to join what is an excellent profession.

[Alex Chalk (Cheltenham) (Con)]

T8. The Government are entitled to feel a little perplexed by the Criminal Bar Association’s hostility to the new graduated fee scheme, given the CBA’s input into that scheme. Be that as it may, will the Minister confirm that the MOJ is prepared to communicate with the CBA to resolve this growing dispute?

[Lucy Frazer]

My hon. Friend is right to say that in putting together this scheme discussions went on for two years with members of the Bar and the MOJ. They were calling for us to implement this scheme, so that is the scheme we have implemented. We are always willing to talk to members of the CBA and the Bar Council. Since I have been appointed, in the past three months, I have met the chairman of the Bar Council twice and the chair of the CBA twice.

Leaving the EU: Justice System

Debate between Alex Chalk and Lucy Frazer

Thursday 29th March 2018 Westminster Hall

[Lucy Frazer]

I very much understand the need for certainty and the importance of those clauses in contracts. There should be a level of legal certainty, because those contracts will be respected in the implementation period. Furthermore, as was stated—I cannot remember by whom—we can sign up to The Hague convention unilaterally. As my hon. Friend the Member for Cheltenham said in yesterday’s debate, that convention is not the gold standard, because certain types of jurisdiction clauses are not included. However, many are, and it should give business a level of certainty.

The Committee also referred to legal services. It is important that we recognise the value of that sector to jobs and our economy, and the fact that it underpins our financial services sector. The hon. Member for Enfield, Southgate (Bambos Charalambous) identified many important points about the mutual recognition of qualifications. The Prime Minister has recognised that, too. She said

“it would make sense to continue to recognise each other’s qualifications in the future.”

That has been specifically recognised in relation to our agreement on citizens’ rights. Those citizens who remain have every right to continue to practise as they do at the moment.

My hon. Friend the Member for Bromley and Chislehurst rightly identified that the European Parliament might say that what we are putting forward is unachievable. In any negotiation, I would not expect the other party and those who will be confirming the agreement to lie down and say they accept everything the UK puts forward. We must remember that it is a negotiation.

My hon. Friend mentioned competition from other jurisdictions and the Paris court. That is an important point, but we must remember that the UK is expanding its judicial offering. We have interests in Europe and in Britain as part of the EU, but recently we have also seen judicial co-operation and members of the Bar helping to establish courts in Dubai, Qatar and Kazakhstan. We can continue to thrive in those centres outside the EU.

My hon. Friend made an important point about feeding into DExEU. He can be assured that our negotiators at the Ministry of Justice are party to the teams, negotiating alongside DExEU in matters that affect justice. He should also be assured that we are discussing these important issues at ministerial level—I have had discussions with my counterpart in DExEU.

In relation to clause 6 of the European Union (Withdrawal) Bill, Lord Keen, who took the debate in the House of Lords, said clearly that the Government have heard the views expressed by Members of the House of Lords, and that we will return to that point.

The right hon. Member for Delyn (David Hanson), the hon. Member for Bolton South East (Yasmin Qureshi) and my hon. Friend the Member for Cheltenham made important points on cross-border security, including that, as a matter of principle, crime does not respect borders, and that many measures, including the European arrest warrant, are critical to our security. I was asked for a timetable. First, we were agreeing separation—budget and citizens’ rights—and have done so. Secondly, we were to agree an implementation period, and we have done that. We are now turning to the matters of the future partnership deal and security.

We want an ambitious deal. There are many examples of international agreements between Europol and other third countries, such as the US, but like both the right hon. Member for Delyn and my hon. Friend the Member for Cheltenham, I believe these matters will be solved because it is in the interests not just of us and our citizens but of other citizens.

[Alex Chalk]

We would all be interested to know whether those matters will be considered at the outset, potentially separately from other matters, or whether they will be thrown into the mix as something potentially to be bargained away.

[Lucy Frazer]

My hon. Friend should not assume that those points have not yet been considered. We are moving from an EU perspective to discuss these issues, and they will be considered.

--- Later in debate ---

[Lucy Frazer]

I expect that the deal, of which that will form part, will be put to Parliament.

My hon. Friend the Member for Banbury (Victoria Prentis) rightly identified the importance of mutual enforcement and the mechanism to secure our future relationship. She asked for specifics in relation to the future relationship. The Government are looking at a number of options and are confident that an option will work. There are examples out there that other countries have used, and we would like a bespoke arrangement that works for our country.

My hon. Friend the Member for Cheltenham made an important point about the independence and integrity of our judges. I agree that it is not for them to make political decisions in exercising their independent function as the judiciary. As a barrister, I regularly referred to foreign law—I am sure he has, too—in support of points I made in courts for a number of years to support or distinguish cases. That is not an unusual feature of what goes on in our tribunals.

[Alex Chalk]

My hon. and learned Friend is being generous with her time. The reality, however, is that looking to the High Court of Australia for interpretive guidance is entirely different from looking to the European Court of Justice in the post-Brexit context. One is not political and the other potentially is. The court of public opinion is a concern. That distinction must be taken into account.

[Lucy Frazer]

I understand the point, which my hon. Friend makes articulately. He is right that judges need guidance, and as I said the Government are looking at clause 6 as the Bill goes through the House.

My hon. Friend asked whether justice should be considered separately. The chairman of the Bar Council raised that point with me and with the Secretary of State. I understand and agree on the importance of the justice deal, which he reiterated throughout his speech.

The hon. Member for Stretford and Urmston (Kate Green) made an important point about children. I hope she will be pleased that, in the European Council guidelines on 23 March, the EU specifically stated that it is interested in considering judicial co-operation in matrimonial parental responsibility. Hon. Members have made important contributions on an important matter, and I am grateful to have had the opportunity to answer them.

Leaving the EU: Legal Services

Debate between Alex Chalk and Lucy Frazer

Wednesday 28th March 2018 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Mr Davies. It is also a pleasure to hear the debate brought about by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) and the contributions made by the other members of the Justice Committee. That Committee is doing a huge amount of work to ensure that the issues that matter in our justice system are brought to the forefront and to Ministers to ensure that we have the best possible justice system going forward.

Today, as always, my hon. Friend highlighted important issues that affect us in relation to Brexit. Like him, I acknowledge the important work done by our legal services sector. By reference to points similar to his, there are four key points. The first is jobs, and the legal services sector is the source of many jobs. As he rightly mentioned, it employs well over 300,000 people.

Secondly, the sector contributes significantly to our economy: £24 billion every year. As my hon. Friend highlighted, that money is brought in by not just the legal services sector but its interdependency and relationship with the financial services sector. He mentioned TheCityUK, whose CEO, Miles Celic, highlighted that very point. He said:

“The UK-based legal services sector forms an integral and crucial part of the wider financial and related professional services ecosystem which makes the UK a truly globally-leading international financial centre.”

The legal services sector does not only those things but so much more. It supports people when they are most vulnerable. Many lawyers give up their time to support others for free through the Bar Pro Bono Unit and LawWorks, and I was pleased to see the launch in 2014 of the UK collaborative plan for pro bono, with more than 40 firms committing 325,000 hours a year to support the most vulnerable.

Our sector is so successful because we have outstanding professionals. We have a well-established system of law and a first-class judiciary, whose expertise and impartiality is recognised throughout the world. For those reasons, my hon. Friend is right to say that we need to protect this sector post Brexit, and we are doing that in a number of ways.

My hon. Friends the Members for Henley (John Howell), for Cheltenham (Alex Chalk), and for Bromley and Chislehurst referred to the importance of mutual recognition and the enforcement of judgments. I hope that in our withdrawal agreement we will soon reach an agreement on the protection of and mutual recognition of judgments, and on separation for cases that are pending and currently before the courts.

[Alex Chalk]

I am encouraged to hear that. Some of the evidence presented to the inquiry stressed that if we get such an agreement right, there is a great opportunity for a springboard, particularly in east Asia, where there is a lot of work that British lawyers can seek to win. However, that will require that sound foundation of mutual recognition of judgments, and mutual enforceability.

[Lucy Frazer]

I am grateful to my hon. Friend, and it is important to give certainty to the legal services sector, so that they can advise their clients accordingly. My point was about the withdrawal agreement and what will happen to cases that are already pending before the court. The second stage of our negotiation was about implementation, and we have given businesses legal certainty by ensuring that our current arrangements will continue to apply during the implementation period. We are starting to negotiate and come to an arrangement on what will happen in future after we leave the EU.

My hon. Friend the Member for Cheltenham was right when he mentioned the gold standard and the Brussels regulation, and my hon. Friend the Member for Henley was correct to identify the importance of the Hague convention. Both those things are important, and we hope to secure the Hague convention as a minimum. It is right to ensure that there will be no gap before we rejoin that convention, and we are pressing to secure that. Our ambition and aim is to negotiate as hard as possible and ensure arrangements and protections in future that are similar to those we currently have.

My hon. Friend the Member for Bromley and Chislehurst raised the important question of legal services, the right of citizens to practise here and abroad, and the mutual recognition of qualifications. Again, on separation, as part of the withdrawal agreement we have agreed that any lawyers within the scope of the citizens’ rights agreement who have become part of the host profession in the member state should remain recognised and able to practise. Last week we agreed the terms of the implementation period, in which we will have the same rules as now. Therefore, rules on market access will continue, including on the provision of services and establishments for lawyers. The Government are keen to ensure a good deal for the legal services sector in future.

The Government's Plan for Brexit

Debate between Alex Chalk and Lucy Frazer

Wednesday 7th December 2016 Commons Chamber

[Lucy Frazer (South East Cambridgeshire) (Con)]

In a debate with much intense feeling, I would like to highlight the fact that there are some areas of common ground. First, there is acceptance across the House that there needs to be, and will be, parliamentary scrutiny. Secondly, and importantly, it has been accepted on both sides of the House that parliamentary scrutiny should not trump achieving the best deal for our country. In this debate and in the many that will follow, we must never forget that second point. Our overriding concern must be to get the right long-term arrangement for our country’s future.

I will outline the steps to which the Government have already agreed. This House has already resolved that there will be parliamentary scrutiny. In a motion agreed to by both sides of the House on 12 October, this House resolved that there would be

“a full and transparent debate on the Government’s plan”

and that the House should properly

“scrutinise that plan for leaving the EU before Article 50 is invoked”.

The Secretary of State confirmed in that debate a commitment that

“Parliament be kept at least as informed as, and better informed than, the European Parliament”—[Official Report, 12 October 2016; Vol. 615, c. 332.]

in circumstances where there is a mandatory obligation to inform the European Parliament. Through her amendment, the Prime Minister has now agreed to publish a plan, and the Secretary of State said today that it is inconceivable that there will not be a vote on the final deal. It therefore follows that there is already an agreed level of parliamentary scrutiny, but we must strike the right balance between parliamentary scrutiny and ensuring that we maintain the best negotiating stance.

[Alex Chalk (Cheltenham) (Con)]

I was a remainer, too, and I welcome the fact that a statement of the broad parameters of the British negotiating position will be made clear, but does my hon. and learned Friend agree that we should never allow any demands for excessive granularity to undermine the UK’s negotiating position or the national interest?

[Lucy Frazer]

I absolutely agree. It is vital that we get the best deal—not that we have the power to determine the deal at every stage.

The Opposition have accepted at many stages that we must not tie the Government’s hands. In the October motion, it was accepted across the House that the process must

“not undermine the negotiating position of the Government as negotiations are entered into”.

The shadow Secretary of State stated in the course of that debate that

“navigating our exit from the EU will not be an easy process, and it will require shrewd negotiating”

and that we

“must put the national interest first”.—[Official Report, 12 October 2016; Vol. 615, c. 323.]

He accepted that there had to be a degree of confidentiality and flexibility. He repeated those very words today. Those statements, which the Opposition have repeatedly made, must be honoured and remembered, because we made some strategic errors when we first negotiated in Europe.

To the Spaak Committee meetings of 1955 that eventuated in the treaty of Rome, we sent a sole British delegate, a minor trade official called Russell Bretherton. He was eventually summoned home on the grounds that Britain should have no part in what a more senior civil servant described as this

“mysticism which appeals to European… federalists”.

Interviewed in later life about the experience, Bretherton said:

“If we had been able to say that we agreed in principle, we could have got whatever kind of common market we wanted. I have no doubt of that at all.”

Now, we have an opportunity to renegotiate our role in Europe and the rest of the world. I do not want to say to my children that we did not get the best deal because of our fear, our scepticism, our adversarial parliamentary system, political point scoring and, possibly, ulterior political motives. I do not want to say that we restricted ourselves in negotiating the right arrangement for our long-term future.