Legal Advice: Prorogation

Cheryl Gillan Excerpts

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

I do not know—that is the answer to the question—but if the hon. Gentleman wants to know, he can put down a written question, or I am happy to write to him if he would like. I am very happy to disclose that in due course, once the costs are known. But I say to him that all those costs could have been saved if he had just voted for an election. We could have avoided these cascades of cash falling upon so many lawyers in so many jurisdictions by the simple act of him having the moral guts and not being chicken.

[Dame Cheryl Gillan (Chesham and Amersham) (Con)]

On the subject of taxation, could my right hon. and learned Friend advise me? These legal actions, I believe, have been part-funded by crowdfunding. Will that funding be taxable, and will the tax payable on that crowdfunding have to be paid by the individuals bringing the cases?

[The Attorney General]

I do not believe that it is taxable, but if my right hon. Friend will permit me, I would need to look into it, and if she wishes, I will certainly write to her on the subject.

Information Disclosure: Pre-trial Abuse of Process Hearings

Cheryl Gillan Excerpts

Wednesday 22nd May 2019 Westminster Hall

[Dame Cheryl Gillan (Chesham and Amersham) (Con)]

I beg to move,

That this House has considered the disclosure of information in pre-trial abuse of process hearings.

As usual, it is a pleasure to serve under your chairmanship, Mr Robertson. I am pleased to welcome the Minister, who will respond. I am very pleased to have secured this debate, to raise a matter that concerns a constituent of mine, Mr Tom Perry.

The Minister will be aware of the problems arising from failures of disclosure that continue to confront the criminal justice system. Those problems received the attention of the Attorney General in his 11 December 2017 review, which reported on 15 November last year. One of the worst cases, which was reported in The Times on 21 May last year, concerned five defendants who spent seven years in jail after being wrongly convicted of the murder of Mohammed Afsar. Unfortunately, there is another aspect to that disclosure problem, which, despite repeated requests from my constituent, the Attorney General has so far refused to examine to his satisfaction. I applied for this debate to try elicit a response to the concerns of my constituent, who is in the Public Gallery.

Although my constituent’s case is long since over, the abiding issue is the dual and interconnected problem of a non-disclosure by the defence in criminal proceedings in situations where a duty of disclosure rests on the defendant and his or her legal team, and the apparent impossibility of procuring corrections by solicitors and counsel of such failures of disclosure and of erroneous submissions consequently made by them to the court. The procurement of such corrections is part of the professional disclosure obligations that counsel must make to prevent the possibility of a court being misled.

Generally, in criminal proceedings, the duty of disclosure rests not on the defendant but on the prosecution. Exceptionally, however, in cases where the defendant wishes to make an application for an indictment against him to be stayed on permissible grounds under our criminal law and procedure—principally, that to allow the indictment to proceed to trial would amount to an abuse of process—a duty of disclosure rests on the defendant and their legal team to make a full disclosure of all relevant matters, whether or not they are entitled to such an order being made for their benefit.

One class of case in which that frequently occurs is that of non-recent child abuse. Applications for stay indictments in those cases are most often heard in non-evidential proceedings, in which oral submissions are made to the judge only, without any evidence actually being given. As the judge is wholly dependent on the oral submissions made to him, the absence of the production of evidence makes it easier to mislead a court than would otherwise be the case. I am told that there is growing evidence of malpractice arising from this procedure.

[Jim Shannon (Strangford) (DUP)]

I thank the right hon. Lady for giving way—I spoke to her beforehand to seek her permission to intervene. Does she agree that, although the courts have an overriding duty to promote justice and prevent injustice, the duty to stay an indictment must be used only in extreme and clear circumstances, to ensure that there is no abuse of the judicial process?

[Dame Cheryl Gillan]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Alex Chalk (Cheltenham) (Con)]

Will my right hon. Friend give way?

[Dame Cheryl Gillan]

I would like to make progress.

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

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

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

the Director of Public Prosecutions—

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

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

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

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

--- Later in debate ---

[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.

[Dame Cheryl Gillan]

I am grateful to the Minister for the way in which she is responding. She mentioned that it is important to maintain trust in the regulatory bodies. In the light of the circumstances of this case, does she agreed that trust has been shaken? I will provide her with those details once my constituent provides them, so she may pass them on to the relevant authorities or look at them herself, because it is from her office that I believe my constituent wishes to have a response.

[The Solicitor General]

I appreciate that my right hon. Friend’s constituent feels that trust in the criminal justice system has been shaken. That is of concern. I reiterate that as far as I am aware no misconduct has been found by the Bar Standards Board in relation to the case, but I would be very happy—as I am sure it would—to receive any further information that she can provide.

I would like to underline the additional safeguards that exist for defendants and victims when a stay application is brought. There are a number of rules and regulations that ensure that the hearing should be conducted with due notice and in the interests of justice. The Criminal Procedure Rules 2015 set out clearly the timetable that the defence and prosecution should adhere to when preparing for the hearing. For example, the defence application must be in writing and provided to the prosecution and court as soon as practicable after becoming aware of the grounds for applying. The application must include or identify all supporting material, specify all relevant events and identify any witnesses the defendant wishes to call in support of the application. The prosecution must do likewise within 14 days of receiving the application. Both parties must serve skeleton arguments on each other and the court in advance of the actual hearing, so that everyone knows the issues to be determined at the hearing.

Victim care is important in cases of sexual abuse. Mr Perry’s experience demonstrates why it is so important that we continue to make victim care a priority in our criminal justice system.

[Dame Cheryl Gillan]

I agree with the Minister that victims should have priority in our criminal justice system—that is most important. She mentioned at the beginning of her response that she is working on new guidelines that will come out shortly. Could she give us a greater indication of when we can expect those new guidelines? Would there be any possibility of looking at the draft guidelines before they are finalised and published?

[The Solicitor General]

A review of disclosure has already taken place. Further guidance will come out in due course. I am happy to update my right hon. Friend on any further details on that and will take on board any points that she might like to make.

We are not just focusing on disclosure, although that is very important. The CPS has almost doubled the number of specialist prosecutors in its dedicated rape and serious sexual offence units, and is working with the Ministry of Justice and the Home Office to revise the victims code, to improve the support and care offered to victims. It is important to remember that these issues do not just affect the Attorney General’s office but are cross-departmental, and we are working together with Departments on those. Debates on this area make an important contribution to the ongoing work to improve the experience of victims in the criminal justice system. I thank my right hon. Friend the Member for Chesham and Amersham and her constituent for raising important issues that affect our criminal justice system.

Question put and agreed to.

Withdrawal Agreement: Legal Position

Cheryl Gillan Excerpts

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

The Attorney General has a very special role when the lawfulness of the Government’s action is at stake. There, it is true, he occupies a central role, because if he says it is not lawful, the Government cannot act contrary to his advice. But in a case such as this, the essential question before us all is a political question, not a legal one.

[Dame Cheryl Gillan (Chesham and Amersham) (Con)]

On whichever side of the House hon. Members sit, those of us who have been in government know that it is very important that there is safe space in which Law Officers and civil servants can give advice to Ministers. I fear that today we are trying to breach that convention, and that could be very dangerous for our system. It is extraordinary to me that people would prefer to have a piece of paper produced for them that they have clearly been told may contain information that damages the national interest, rather than have the Attorney General before us, who is giving us further and better particulars, and answering all questions in a full, frank and fair way.

[Mr Speaker]

I think the right hon. Lady is finished—no?

[Dame Cheryl Gillan]

Well, Mr Speaker, I was just going to ask the Attorney General to confirm that there is nothing in the written advice that he has not covered today that, if it were revealed, would be damaging to the national interest.

[The Attorney General]

On all points of law about which this House has asked me, or any point arising from the withdrawal agreement, I will give the same view to any person who asks.

Serious Crime Bill [Lords]

Cheryl Gillan Excerpts

Monday 23rd February 2015 Commons Chamber

[Diana Johnson]

I entirely agree that we need to listen to young women, mothers and families, which is why it has been so important that, over the past few years, young women have felt strong enough to come forward and champion the cause for themselves.

The Bill includes a number of vital measures, such as the FGM protection orders, a new offence of failing to protect a girl from FGM and anonymity of survivors for life. We welcome those measures and give them our full support. However, although they address the matter of ways to respond when a girl is at immediate risk of being cut or has been cut, they do not go far enough in helping to prevent the crime of FGM in the first place.

The new offence would, for the first time, give parents and girls the opportunity in law to challenge the public encouragement of FGM. It has a stronger preventive effect than any other measure in the Bill, and it seeks to change the culture and break the cycle.

The measures currently on the statute book are not working. Thousands of girls in the UK are at risk, yet, since FGM was made a crime 30 years ago, there have only ever been two prosecutions and no convictions. Our proposals will criminalise every published statement or speech encouraging FGM, and will allow the police to issue encouragement warning notices and to follow up with encouragement warning orders, the breach of which would be a criminal offence. This would be a proportionate response and would send out a message of zero tolerance of such violence against girls. It is precisely the message that we need to send, as it makes a clear statement that there is no cultural excuse for violence against women and girls. I hope the Minister will feel able to respond positively to those amendments.

New clause 2 was tabled by my hon. Friend the Member for Bassetlaw (John Mann) along with many other right hon. and hon. Members. I pay tribute to my hon. Friend for his work, for pursuing child abuse cases and for ensuring that the perpetrators are brought to justice. Labour Front Benchers are entirely sympathetic to his approach, and we think that it is absolutely the right thing to do. Perhaps the Minister could comment on that new clause in his closing remarks, and I hope that the Government will feel able to support my hon. Friend. If they feel that the wording needs to be tidied up so that it flows a little better, there is an opportunity to do that when the Bill returns to the other place.

New clause 11, which was tabled by the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), relates to the protection that should be offered to 16 and 17-year-olds. The Children’s Society has provided an informative brief about why 16 and 17-year-olds need that additional protection. Briefly, it recognises that 16 and 17-year-olds in other parts of the world have protections that we do not have in this country, which is why we support the measure.

New clause 17 relates to mandatory reporting. We will be moving to a vote on this matter. An amendment was moved in Committee, which dealt with a consultation on mandatory reporting. We listened very carefully to what was said and feel that our new clause deals with some of the issues that the Government were concerned about, and we hope that they will support it today.

[Mrs Cheryl Gillan (Chesham and Amersham) (Con)]

The hon. Lady may know that I have, in the past, spoken up on behalf of Mandate Now and my constituent Mr Tom Perry. I am very keen on mandatory reporting, but having looked carefully at the proposed new clause, I have found that under subsection (2)(a), she is permitting undefined circumstances as a reason not to refer an incident for independent assessment. In the view of Mandate Now, and in my opinion, that completely undermines the concept of mandatory reporting. She may be pressing the new clause to a vote, but those of us who believe in mandatory reporting will not be able support it because it is badly flawed, and looks, I am afraid, like a rehash of some old wording.

[Diana Johnson]

I am sorry that the right hon. Lady feels that. Mandatory reporting is clearly complicated and this is quite a technical area. We have proposed the new clause on the basis of the best advice we have received about how to do this, alongside advice and guidance from some of the children’s charities, and we recognise that this is a difficult area. I am sorry that the right hon. Lady does not feel able to support us, but I hope that those on the Government Front Bench will reconsider their view on mandatory reporting. We feel that it is a positive step that should be taken forward.

[Mrs Gillan]

It is important that we take this seriously, and having dealt with my constituent and these issues for some time I agree with the hon. Lady that mandatory reporting is essential. As I understand it, the Government will have a consultation on the process so that we get it absolutely right. It is therefore a shame to force a vote tonight on something that is flawed and that does not do the job. I ask the hon. Lady and her colleagues on the Front Bench to think again. Obviously, we cannot start the consultation during the period of purdah, but it will start immediately after the general election, as I understand it.

[Diana Johnson]

It is disappointing that we have not been able to have that period of consultation, because the question of mandatory reporting has been around for considerably longer than the Serious Crime Bill. It has been raised by the shadow Home Secretary a number of times over the past couple of years. It is a shame that we are in the position we are in today, because we could have moved on the issue earlier.

Let me move on to new clause 19, for which I pay tribute to my hon. Friend the Member for Rotherham (Sarah Champion). Those on the Labour Front Bench are supporting her amendment, which will introduce child abduction warning orders, and I am sure that my hon. Friend will speak with great knowledge and passion about the subject. I know that her experiences as a constituency MP have shaped her view of the changes she wants to see in the Bill. I will not go into the details of the new clause, but I hope that we will have an opportunity to test the opinion of the House on this as it would give law enforcement an important tool for tackling some of the exploitative actions of certain members of our communities towards young people.

New clause 26 sets out special measures for victims of sexual offences in recognition of the fact that they will almost certainly be afraid and distressed at the prospect of giving evidence in court. In particular, someone who has been subjected to domestic coercive control intended to reduce their self-esteem and make them a virtual prisoner of the defendant will inevitably suffer fear and distress at the prospect of giving evidence about it and coming face to face with the defendant in a public court. There can be no doubt that had the offences of coercive control existed at the time of the Youth Justice and Criminal Evidence Act 1999, which the new clause would amend, the authors would have included this provision.

The new clause is practical. Unless a complainant can be given a guarantee from the start that they will not have to give evidence face to face with the perpetrator, they might not have the confidence to proceed. If the best that can be said by others is that at some future stage they will ask a judge to grant special measures, that might not reassure a vulnerable victim enough, which might be the difference between supporting a prosecution and getting a conviction and not doing so. There is a public interest in prosecutions for this type of offence as perpetrators of domestic abuse are often serial offenders and other potential victims need to be protected, but a victim should automatically be entitled to protection in their own right.

Finally, Government amendment 10 builds on the work done by the hon. Member for Mole Valley (Sir Paul Beresford) over a number of years. The extraterritorial nature of the offence was mentioned in Committee and I am pleased that the Government have moved on this. I pay tribute to the hon. Gentleman for the work he has carried out over many years in the House to improve protection for children.

--- Later in debate ---

[Mr Speaker]

What a delicious choice. I call Mrs Cheryl Gillan.

[Mrs Gillan]

I want to continue my challenge to new clause 17, specifically on behalf of Mandate Now, which was set up by my constituent Tom Perry and seeks to introduce a new law making it mandatory for people working in regulated activities to report their suspicions to the local authority.

I am delighted that the Opposition support mandatory reporting, but I am disappointed with the flaws in their new clause. I believe that mandatory reporting is inevitable, but its design will be critical. It is not a law that, as MandateNow says,

“can be lifted from a shelf, applied and switched on.”

It is a complicated and nuanced subject and such a law needs very careful construction, as I am sure the hon. Member for Kingston upon Hull North (Diana Johnson) appreciates, particularly having adopted the position that Opposition Front Benchers have taken up recently.

The hon. Member for Bassetlaw (John Mann) struck a chord with me when he said that there should be no no-go areas, which is absolutely right. I am worried that new clause 17 would create such no-go areas, and protect and enshrine them in a flawed law.

It appears from new clause 17(1)(c) that the duty to report would apply only when harm is caused in the setting of a regulated activity. As I understand it, children who are abused at home would remain outside its scope. Multiple concerns, or even any concern about any child, brought to the attention of staff—for example, at their school—would not necessarily be caught by the provision as currently drafted.

[Diana Johnson]

The right hon. Lady and I have already had an exchange on this issue. What happens in a school is obviously a regulated activity, so my understanding is that if teachers working in the school become aware of the issue, that would be covered by the new clause.

[Mrs Gillan]

Mandate Now’s understanding is that such a situation would not be covered. If abuse occurs outside one of the regulated activities, but is brought to the attention of someone involved in a regulated activity, there appears from the drafting of subsection (1)(c) to be a possibility that the abuse would not be a mandatorily reportable incident.

Subsection (1)(c) would require that a person

“becomes aware that a child has been harmed”.

That requirement is problematic. So often with sexual abuse, it is very difficult to suspect it, let alone to know about it. Mandate Now’s challenge to the proposal from the National Society for the Prevention of Cruelty to Children is absolutely right. A law that depends on somebody being “aware” is drafted in a dangerously vague way. It will not catch most cases. The hon. Lady should therefore consider using the phrase that a person must act on “reasonable grounds of suspicion”. Such a change would improve the drafting of her new clause 17.

Similarly, the exemption in subsection (2)(a) permitting undefined circumstances as a reason not to refer an incident for independent assessment totally undermines the concept of mandatory reporting. When might it be in the interests of a child to be harmed and for those who know or suspect to do nothing about it? Such a situation needs to be made explicit.

Subsection (2)(b) is almost a facsimile of the current and porous position. In complying with current non-mandatory reporting clauses in institutional child protection procedures, personal liability seems to be avoided. The proposal continues a failed narrative in which reporting to the local authority for independent assessment is reliant on what the person responsible for reporting believes. For example, if a member of staff refers a case to the head teacher as the designated person and nothing happens, because the head believes it is not in the child’s interests to refer it or follows the inadequate professional guidelines—as it happens, they are discretionary—then the new clause will produce no change. As Mandate Now has stated, the exceptions in subsection (2) undermine the already underpowered provisions in subsection (1).

As the hon. Lady will know, an earlier amendment on mandatory reporting was moved in the other place, but was withdrawn on an assurance from the Government that they would start a consultation on mandatory reporting. She and I know, as does the Solicitor-General, that the terms of reference for the consultation have not yet been drawn up.

We are approaching something called the general election, so there is purdah. I have a proposition to make to both Front Benchers: it would be good to work on this matter on a cross-party basis. It should not be a political subject, but something on which we agree. Rather than putting new clause 17 to a vote, it would be good if they met behind the Chair and agreed to the Government drawing up the terms of reference with the Opposition and publishing them as soon as possible during the period of purdah before the general election. In that way, all the victims and people relying on this place to improve the situation for our all future children, and to learn from the history faced by many of our constituents, would have a lot more confidence that we are doing our job correctly.

[Sir Edward Garnier]

In dealing with subsection (2) of new clause 17, my right hon. Friend alights on one of the problems. An awful lot of well-motivated proposals are brought forward in relation to such Bills, but her point demonstrates that we must be careful not to legislate without thinking very carefully about what is intended. It is not clear to me that having

“acted in the best interests of the child”

is demonstrated on the subjective basis of the person who believes they have so acted, or is to be tested against what a reasonable person believes from looking at how that person has acted. If we agree to the subsection without analysing that, we will get into trouble. I urge her to ask the two Front Benchers to talk about that if they meet behind the Speaker’s Chair.

--- Later in debate ---

[Mrs Gillan]

My hon. and learned Friend is absolutely right. He reinforces the position spotted by the commentators at Mandate Now about the drafting of new clause 17. As I say, I want the matter to be non-party political—it should be irrespective of politics—so it would be good if we showed the House doing its best by coming together, with the Government and the Opposition working together on the guidelines for the consultation and getting them out as soon as possible.

Mandate Now’s membership base is 114 survivor charities in England, eight in Scotland and 10 in Wales, so there is a substantial body of opinion behind its views. I very much hope that both Front Benchers will take them seriously and not force us through the Lobby against new clause 17. I believe in the concept, but I cannot vote for the new clause because of its quite obvious flaws.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

About an hour ago, Mr Speaker, you expressed your pleasant surprise at the Solicitor-General’s brevity, and I hope that I do not revert to type. I, too, shall keep my remarks short.

I welcome new clauses 8 to 10, which relate to the language applied to young children who are victims of sexual exploitation in the FGM provisions and so on. I am fully in sympathy with the very powerful speech made by the hon. Member for Stone (Sir William Cash). I support new clause 2, and the hon. Member for Bassetlaw (John Mann) also made a powerful speech.

The provisions in part 5 relating to the new offence of child cruelty are of fundamental importance and should be welcomed. The new offence balances both physical and psychological harm, because psychological abuse can have such a debilitating impact on children. However, my new clause 11 reflects my concern, and that of organisations such as the Children’s Society, that the Government have not taken the opportunity presented by the Bill to offer protection to 16 and 17-year-olds at risk of cruelty and neglect. After all, the United Nations convention on the rights of the child and the Children Act 1989 both define a child as a person under 18. In Committee, I sought to amend the Bill by redefining a child as a person under 18, and I made the case for extending the legislation on child abduction to 16 and 17-year-olds. Unfortunately, I was unable to persuade the Committee of the merits of my amendments, so I withdrew them. My intention in retabling them today is to highlight the issue once more.

New clause 11 would amend the Children’s Act 1933 by inserting a new section on cruelty to a person aged 16 or 17. The new section would ensure that anyone aged 18 or over who wilfully assaulted, ill-treated, neglected, abandoned or injured a 16 or 17-year-old would be guilty of an offence. Crucially, the new clause acknowledges that ill treatment can be both physical and psychological.

--- Later in debate ---

[The Solicitor-General]

Best endeavours, Mr Speaker, best endeavours.

I thank all right hon. and hon. Members for taking part in this wide-ranging debate. I am grateful to the hon. Member for Birmingham, Selly Oak (Steve McCabe) for a thoughtful contribution. The Government have committed to a full 12-week consultation within 18 months of the Bill receiving Royal Assent. We are coming to the end of this Parliament and into purdah, and practical issues arise, as my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) said. However, the Government are committed to moving on a consultation as soon as practical obstacles are removed—we cannot be clearer than that. I am somewhat puzzled about Labour Members’ undue haste to move their new clause. My right hon. Friend has already mentioned some deficiencies that she has found in the provision, and I will not reiterate her points. I say simply that we need a proper consultation on the issue and for all voices to be heard. For FGM and mandatory reporting provisions we held a consultation that gave us clear evidence to act, and to create and change the law on mandatory reporting. We must do exactly the same for child abuse.

We all agree that these issues are sensitive, important, and involve new obligations on professionals who work in this difficult field, and we must approach them carefully and with evidence. I therefore strongly urge Opposition Members to consider the matter carefully before dividing the House or supporting the new clause. With great respect the provision is premature, bearing in mind that a consultation will occur as soon as possible.

[Mrs Gillan]

Will my hon. and learned Friend comment on my suggestion that those on the two Front Benches should work together on drawing up the terms of reference for the consultation, because I am sure that would help speed up the procedure? It may not be possible to bring something out before the election, but at least working together would show that it is a cross-party effort and give great comfort to those watching this debate.

RSPCA (Prosecutions)

Cheryl Gillan Excerpts

Tuesday 29th January 2013 Westminster Hall

[Mrs Cheryl Gillan (Chesham and Amersham) (Con)]

Thank you, Mr Williams. I am grateful you called me. I am also grateful to my hon. Friend the Member for Carmarthen West and South Pembrokeshire (Simon Hart) for initiating the debate.

I am going to make a speech that others will probably not expect from someone on the Government Benches. In my constituency, I have been grateful for the RSPCA pursuing a high-profile prosecution and, effectively, putting out political signals through that prosecution. The RSPCA has done us all a great service in its contribution to animal welfare and in its prosecution of those who treat animals inhumanely. When the Attorney-General winds up, I hope that he bears it in mind that the terrible case to which I will refer took place in Buckinghamshire, and he is a Buckinghamshire MP.

I am second to none in my admiration for the RSPCA. Sadly, cases of multiple animal abuse appear to be on the increase, and the RSPCA is well placed to bring and carry through the sort of prosecution that it did in the case of Spindles farm. In January 2008, more than 100 horses, ponies and donkeys were removed from the most horrific conditions at Spindles farm. I went to see some of the rescued animals, many of which had to be put down. Many had been treading on the carcases and bodies of other animals. I have never seen animals with deader eyes or in worse condition in my life, and I have farmers in the family in Wales and have spent a lot of my life around animals. The RSPCA worked with the Redwings horse sanctuary, World Horse Welfare and the Horse Trust, and they are all to be commended.

The prosecution cost some £2.3 million, but the investigation was highly complex. The number of animals involved, the cruelty, the defendants’ obstruction and intimidation of RSPCA inspectors, the need for expert reports, and the problems of identifying ownership of many animals contributed to a long and complex case. It is difficult to see how any organisation other than the RSPCA could have mounted such a complex and difficult operation and investigation. Indeed, the judge praised the RSPCA.

[Mr Adrian Sanders (Torbay) (LD)]

Is it not the point that if it were not for the RSPCA, we would expect the police to put together such cases, and they do not have the expertise or, certainly in the current austere world, the resources?

[Mrs Gillan]

The hon. Gentleman almost took away my finishing line. Would others give the matter the priority that the RSPCA gave it? I am pleased to report that James Gray was sentenced to six months in prison, fined £400,000, and banned from keeping horses for life. It is a good job I was not the judge, and that a greater sentence was not available, because he would have had a much bigger one.