Counter-Terrorism and Sentencing Bill (Second sitting)

Chris Philp Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Thursday 25th June 2020 Public Bill Committees

[The Chair]

Good afternoon. The Minister will put the first question to you.

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

Q 71 It is a pleasure to serve under your chairmanship, as always, Mr McCabe. Mr Dawson, thank you very much for making yourself available to answer questions. I am sure the whole Committee is extremely grateful. I will keep my questions brief to allow other Committee members to come in. Would you agree that when it comes to very serious terrorist offending, the principal concern of Parliament and the entire criminal justice system should be that of public protection?

Peter Dawson: Thank you very much for the opportunity to give evidence. The answer, of course, is yes, and I will try to explain why I can say yes with such conviction. Three of my colleagues and a number of close personal friends were present at Fishmongers’ Hall. Had I left my office five minutes earlier that afternoon, I would have been present myself. I have seen the devastation that that crime unleashed on some very close friends, so, absolutely, personal protection is the first priority. Our concern with the Bill, which I am sure we will get the chance to explore, is that aspects of it may not be justified by public protection, and indeed some aspects may undermine it.

[Chris Philp]

Q On public protection, which we have agreed is the overriding priority, given how hard it is to rehabilitate some offenders, and that some who are apparently engaging in constructive rehabilitative work may not be, which indeed was the case of the offender at Fishmongers’ Hall—my condolences to your colleagues who were caught up in that—do you agree that keeping the most serious offenders off the street for the duration of their sentence is the only way to be certain that the public are protected?

Peter Dawson: It is the only way to be certain for that length of time, but it is not always certain when that length of time comes to an end. This is the dilemma that faces the criminal justice system in every case. Of course, it is brought to the public’s attention by events of this sort, and such events excite particularly strong emotions. Terrorism is a very difficult thing to understand, but a lot of criminal motivations are difficult to understand and to predict, so we have systems that seek to balance the difficulty of that prediction with the rights of the person who has been accused and their right to a future life when they have served their punishment.

The problem with denying all hope of release on a conditional basis by a judgment about whether the person can be released safely or not is that it denies hope and affects the whole of the prison sentence. You will be aware that I spent a good part of my career as a prison governor, and the way in which people can be encouraged and assisted to engage in work that may change their behaviour in the future is if there is something in it for them. The parole process is not just about the judgment at the end of the custodial period; it is about the whole of the sentence from the very first day and doing work that may make a difference and may make the public safer when that person eventually leaves prison. It is a dilemma, but I do not think that the public are best served by saying that we will postpone the moment at which risk arrives without taking the opportunity to reduce that risk. The possibility of parole is essential to the process that reduces risk.

[Chris Philp]

Q We are talking about offenders serving determinate sentences, but they do have hope in the sense that the sentence has a fixed length—they are going to be released at the end of their sentence. I was asking about the release point which, under the current system, may come before the end of the sentence or, under these proposals for the most serious of offenders, at the very end of the sentence. We are talking about determinate sentences, so release will come.

You mentioned trying to make people safer upon release. What sort of activity is most effective during the prison sentence, whether release comes early or not? What are the most effective interventions that lower risk when they prisoners are released, whenever that release occurs?

Peter Dawson: The most important thing about understanding rehabilitation is that it happens in a community. You must always have one eye on what life is going to be like when that person comes out and what it is about life after release to cause them not to commit crime. That is true for terrorist crimes as well as for all other sorts of crime. There is nothing secret about this: people need somewhere to live, a way to earn their living, and a reason to live in a law-abiding way. Very often, that reason comes from family and from exactly the same things that cause all the rest of us to live the way we do. That means having people who care about you and have an interest in your future, and having a feeling yourself that you have a stake in a future that is law abiding.

You cannot coerce people into rehabilitation. There has been lots of discussion about particular programmes and courses that may assist in that, and across the picture of offending behaviour there are some programmes that have some effect, but we clearly need to be realistic about the impact of those programmes, whether in relation to terrorism or anything else.

First, a successful programme must be built on a research base and a theory of change that makes sense, and that research base is relatively small. Secondly, the programme then has to be delivered according to its manual. The third thing is that the environment in which it is delivered and in which the person lives has to support the aims of the course, and programmes should be audited. That third aspect is really important in this. The aims of the course are to give a person a stake in their society to encourage lawful behaviour, so the authority must be legitimate. The people must go into an environment that treats them fairly and which they feel is fair.

The difficulty with providing no incentive or reward for engagement in that change is that that appears to be unfair. If you add to the difficulties, which are real and difficult for the Prison Service to deal with, a bias against people who have committed offences like this, the danger is that someone can go through a programme and appear to have made progress and then go back into a sentence lasting many years, during which they do not feel treated fairly. None of these programmes cure; some of them have some impact on some people.

[The Chair]

Order. I have to interrupt there, Mr Dawson, because I am conscious of the time.

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[The Chair]

Order. I am sorry to interrupt you, but we really have to press on at this stage. Minister.

[Chris Philp]

Q Thank you, Mr McCabe. Mr Allamby and Dr Russell, thank you for taking the time to join us and give evidence this afternoon.

You will be aware that when Parliament passed the Terrorist Offenders (Restriction of Early Release) Act 2020 in February, Northern Ireland was excluded because we were concerned about issues of retrospection, owing to the differences in sentencing structure in Northern Ireland compared with the rest of the United Kingdom. Having taken very detailed and extensive further legal advice, the Government now take the view that the measures in the TORER Act can safely be applied to Northern Ireland without engaging in issues of retrospectivity, and the Bill seeks to do that. Is that a conclusion with which you concur?

Les Allamby: Clearly, I have not seen your detailed legal advice, so I do not know, and I would have to reflect on whatever legal advice you received; we have not taken legal advice on the issue ourselves.

The one thing I would say is that, as you know, there will need to be a legislative consent motion on a number of the sentencing provisions and, off the top of my head, I suspect that this provision might be one of them. I know from discussions with the relevant Minister in Northern Ireland, who is publicly opposed to terror etc., that there are some very real practical concerns about extending this Act to Northern Ireland and some potentially unintended consequences.

So I think my answer to the question is this: listen very closely to your counterparts in the Department of Justice in Northern Ireland, and to the Justice Minister in Northern Ireland, as to whether this change is advantageous to the circumstances of Northern Ireland. Frankly, I cannot speak for either the Minister or officials, but I would take very careful cognisance of what they have to say to your own civil service colleagues.

[Chris Philp]

Q Thank you, Mr Allamby. Let me assure you that we are in extremely close and ongoing dialogue with Naomi Long and others in the Northern Ireland Executive, so those conversations are happening on a very regular basis.

My final question relates to polygraphs. You mentioned the importance of evidence, and later this afternoon we are seeing a professor who is an expert in this area, as far as evidence is concerned. Would you agree that where polygraphs are used just to provide a bit more background information and perhaps prompt further investigation, rather than being used to have a biting and binding consequence, there can be some value in that, as part of a holistic assessment to work out where more work needs to be done? Nobody is suggesting that it would lead to a direct, binding consequence. Does that give you any assurance?

Les Allamby: It gives me, I have to say, a rather limited measure of reassurance. I say that because it seems to me that if that is the case, then frankly that ought to be written into the Bill. It ought to be clear that the outcome of a polygraph test on its own should not have any adverse impact.

If you are going to introduce polygraph tests, you really should pilot them. I will quickly give you an example. It may seem a slightly odd analogy, but I used to sit on the Social Security Advisory Committee, and I remember being told many years ago by the Department for Work and Pensions that it was looking at voice recognition, as a way of starting to tell whether somebody might be telling the truth or not. Great play was made about that approach as a possible way forward in fraud detection, etc. It unravelled as the evidence became clearer that there were significant flaws in using that technology for making assumptions about whether individuals were telling the truth.

I cannot draw any objective scientific comparison between voice recognition and polygraphs, but it is a cautionary tale of rushing into using technology without piloting it and really considering what other safeguards you should have before using it.

[Joanna Cherry]

Q Good afternoon, chief commissioner and Dr Russell. You have said that you will put in a written submission on some of the wider issues around TPIMs. Please summarise your concerns about the new TPIM proposals from a human rights perspective.

Les Allamby: Yes, certainly. One concern is the relative absence of safeguards around extending it beyond two years. I think there ought to be additional judicial safeguards. There ought to be a test, if you are going to extend beyond two years, as to whether there is a compelling basis for doing so.

I have concerns that the loosening of the test from the balance of probabilities to reasonable suspicion. I note that we have slalomed, going back to control orders, as to what the required burden of proof is. I note the issues David Anderson raised. I also noted that the European convention on human rights memorandum issued by the Department suggested that things had changed between 2015 and 2020, but I am unsure whether that change is sufficiently compelling to reduce the test from balance of probabilities to reasonable suspicion.

TPIMs are used in a very small number of cases. They are oppressive. None the less, they are utilised on a sparing basis. But you need additional safeguards, if you will extend them beyond two years. Two years is a significant period of time in someone’s life to restrict their freedom of movement and their liberty, to the extent that TPIMs currently do, bearing in mind some of the additional provisions that will now be contained in TPIMs.

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[The Chair]

Minister, do you have a supplementary question you want to put to that?

[Chris Philp]

Q I believe that, in the circumstance where somebody on licence fails the polygraph test, the intention is not that that would lead to revocation of licence, but that it would prompt further investigation—that is what is intended. Does that give a little more assurance that it is being used simply to assist in working out whether further investigation should be done? It would not lead to revocation of a licence on its own.

Les Allamby: I think that is helpful—I would like to see any of those kinds of intentions in the Bill—but I come back to my fundamental point, which is that, as far as I understand it, the polygraph test is still untried in terms of its complete veracity, and we are using technology that has not been piloted in those circumstances. Frankly, if we are going to move to polygraph tests in those circumstances, I would much prefer them to be piloted, so we could then make a genuinely informed decision about their value before we start to take decisions that may have significant consequences.

[Conor McGinn]

Q The fight against terrorism in Northern Ireland relies very heavily on co-operation between the Police Service of Northern Ireland and the Garda Síochána. Those two systems in the north and the south are almost integrated and work very closely together on that. Does the Bill contain anything that you think might place a question mark over that, or might the Irish Government feel that some of the Bill’s contents are incompatible with their approach to working with the UK authorities vis-à-vis countering terrorism in Northern Ireland?

Les Allamby: Conor, I honestly do not know; I have not had discussions with either the PSNI or Garda Síochána on those arrangements. I certainly do not detect from PSNI a great deal of desire to see those kinds of arrangements in place, which I certainly do not think will be enhanced, but I cannot comment meaningfully on that.

One thing that I would say is that the much more significant issue for us in terms of cross-border co-operation—it is outwith your Committee—is reaching effective security and justice arrangements when we leave the European Union at the end of December. Northern Ireland’s land border with another member state creates a full range of issues that I think are slightly different for the rest of the UK. I have not detected in public discourse anything to suggest that, but “I don’t know” is a shorter and more succinct answer.

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[The Chair]

Michael Clancy is the director of law reform at the Law Society of Scotland. Good afternoon, Mr Clancy.

Michael Clancy: Good afternoon, Chair; good afternoon everyone.

[Chris Philp]

Q Thank you for joining us; we very much appreciate you taking the time to give the Committee the benefit of your opinion. The purpose of the Bill is to protect the public from serious terrorist offenders. Do you agree that the Bill achieves that purpose by and large, and is it therefore a piece of legislation that, in broad terms, the Law Society of Scotland supports?

Michael Clancy: Thank you, Mr Philp. To answer about projecting what the effect of legislation will be on protecting the public and making people safer is quite difficult, because for me, as an individual, it would certainly be speculation to say that the Bill would protect people. Legislation has limited effect in terms of it being passed; it really has to be brought into effect and made to work through enforcement for the real impact to be felt. That is part of the issue about whether or not people would be protected by the Bill. It may be some time before we can turn around and do adequate research on the implementation of the measures in order to assume that people have, since its enactment, been better protected than they were before. It is difficult for me to comment on that.

That having been said, I know that sociologists and criminologists have been looking at this kind of things. In one article I picked up latterly, entitled “Does Terrorism Dominate Citizens’ Hearts or Minds? The Relationship between Fear of Terrorism and Trust in Government” by Ramon van der Does. He came to the conclusion that

“Despite its well-known effects on public health, safety, and finances, we still know little about how fear of terrorism can be mitigated.”

That might go some way to edging to an answer to the Minister’s question. Every Bill is good in parts, and has good parts, parts that can be improved by amendment during its passage and parts that, in some instances, should not be legislated at all. So, as you can tell from the Law Society of Scotland’s memorandum on the Bill, we take very much that kind of view.

[Chris Philp]

Q On the question of public protection, which you were kindly commenting on just then, one key element of the Bill is that there will be a minimum 14-year prison sentence for the most serious terrorist offenders, and for that cohort and some other serious terrorist offenders, all the sentence will be served in prison. Given the evidence we heard earlier today about how difficult it is to rehabilitate terrorist offenders and to predict whether they have been rehabilitated, do you agree that simply ensuring that they are unable to harm our fellow citizens by keeping them in prison for a longer period is the only certain way of keeping the public safe?

Michael Clancy: I certainly agree that, for those who are convicted of serious terrorist offences, keeping them in prison for a longer time means that they are not at liberty to commit other terrorist offences. Whether that actually means that they have no influence on others in the commission of terrorist offences—either those they meet in prison who are on their way towards release, or those with whom they can communicate outside prison while they are serving their sentence—is another matter.

[Chris Philp]

Thank you very much.

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[The Chair]

Minister, I think you wanted to make another point.

[Chris Philp]

Q I have a couple of follow-up questions on the TPIM matter that you spoke about, Mr Clancy. In your oral evidence a few moments ago, you described the change in the burden of proof as problematic. I am not sure whether you heard the evidence we received this morning, but an assistant chief constable from counter-terror policing, speaking on his own behalf but also on behalf of the security services, said that lowering the standard of proof to reasonable suspicion would result in the public being better protected. He went on to lay out three potential circumstances in which that might be the case. One was rapidly changing threat levels from an individual; another was an individual returning from overseas; and there was a third circumstance as well. Given the evidence by counter-terror police on behalf of them and the security services that our citizens in the whole United Kingdom are safer with this measure, could I ask you to reconsider your description of it as problematic?

Michael Clancy: Of course you can ask me, Minister. That is certainly something I will take back and think about, because I was not aware that that evidence had been given this morning. I should say that this is, of course, a civil law provision, not a criminal law provision, in terms of the standard of proof. Of course we have to take into account the views of the counter-terrorism police experts and weigh them very heavily, but it is a different environment, in one sense, from the environment that the police are used to operating in—namely, beyond reasonable doubt. But I take your point and will give that some further thought.

[Chris Philp]

Q I am extremely grateful to you for the undertaking to think about it further. That shows very commendable flexibility in response to the clear evidence.

To give you further reassurance perhaps, the lower burden of proof, reasonable suspicion, is of course not a new burden of proof, because the old control orders, in force from 2005—they were introduced by the then Labour Government—and carrying on until 2012, had the same lower burden of proof, reasonable suspicion. This morning, I asked Jonathan Hall, the independent reviewer, whether he was aware of any problems that occurred during that seven-year period, 2005 to 2012, when that lower burden of proof was in force, and he was unaware of any issues caused by it. Does that give you further reassurance?

Michael Clancy: It does. Of course, set against that is the fact that very few of these orders were in place at that time. I think that, in doing some reading in advance of this session, I saw numbers in the mid-40s—46 orders or something like that. If they are going to be used at that kind of level of exercise, it is clearly going to impact on a smaller group of people. Small does not mean insignificant, in this circumstance, but we will just have to wait and see what the evidence of their use produces.

[Chris Philp]

Q Indeed. The current number of TPIMs in force is actually six, and we do not anticipate large growth in the numbers as a result of these provisions.

I have one final point. You mentioned concerns about renewal. Of course, renewal, under these proposals, would take place annually. And you mentioned a few moments ago judicial oversight as a concern. Of course, the subject of the TPIM can at any time bring a legal challenge against the use of the TPIM if they feel that it has become unfair. Does the availability of that mechanism to bring a challenge give you reassurance that the subject of the TPIM does have recourse to the courts, and can be protected by a judge, if he or she feels that that is necessary?

Michael Clancy: Well, of course, yes, it gives me some reassurance. I am glad to hear you make such a clear statement of the interpretation of the Bill. Certainly, the TPIM is reduced for one year, but it is capable of being made indefinite. If one were to take action—as you have suggested someone who is subject to one of these orders might take action—it might be the case that the judge would only be able to quash the TPIM rather than make any variation. That might be a solution that we would mutually accept, but there may be implications from that I suppose.

[Joanna Cherry]

Q The Minister referred to clear evidence of the requirement for a drop in the standard of proof. Are you aware of any clear evidence, as opposed to anecdotal evidence?

Michael Clancy: I have no evidence. As I have said, the important thing would be to see how this change to the legislation works and then, in a shortish period of time—between two to five years—think in terms of having some kind of post-legislative review, which would enable us to see whether this legislation had functioned properly and had met the objectives that the Committee has been discussing this afternoon of making people safer and protecting them. Then we can come to a view as to whether or not that change in the standard of proof was the right one.

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[The Chair]

We now come to our final witness of the day, Professor Donald Grubin of Newcastle University, who has had the benefit of hearing some of the exchanges earlier. Let us begin.

[Chris Philp]

Q Professor Grubin, thank you very much for joining us this afternoon and taking the trouble to come here. We are extremely grateful to you. Perhaps you could start by introducing yourself to the Committee in the context of your academic background, and, in particular, your work on polygraphs.

Professor Grubin: I am a professor of forensic psychiatry, so I am a psychiatrist and not a polygraph examiner. I became interested in polygraph testing about 20 years ago in relation to work with offenders. What I found was that polygraph testing was being used very widely in the United States to monitor offenders. The people using it said, “This is fantastic. If they took it away, I would quit.” They would make comments like that, but the academics felt that there was no evidence for it and a lot of what we are hearing today is that it is not reliable. A lot of those issues were repeated. I became interested in that difference. We began to run some studies here in the UK. Gradually over time, a lot of evidence accumulated to show that it was a very effective means of monitoring and managing offenders in the community.

[Chris Philp]

Q You have a long academic background, principally at Newcastle University, and you have been studying polygraphs for 20 years. Can you describe the evidence you have seen in the last 20 years about the role that polygraphs can usefully play in the criminal justice system?  Feel free to comment on evidence from overseas as well as the United Kingdom.

Professor Grubin: The first thing to say is that there is a lot of misunderstanding about polygraph testing. We heard a lot of that earlier today, and I get very frustrated, because those same comments get repeated and repeated. There is also a lot of confusion about polygraph testing—what it is, what it does and how it is used.

In essence, all polygraph testing does is provide additional information—information gain—and it does that in two main ways. One is the test outcome, which people often get tied up in—is somebody lying or telling the truth?—but it is also about disclosures. The two are complementary. What every study ever carried out on polygraph testing has found is that when people are having a polygraph, they make disclosures. All the studies we have done here, and indeed the implementation of polygraph testing here with sex offenders, has found the same thing.

There was a comment that this has not been piloted, but we have now run about 5,000 tests in probation, with mandatory tests on sex offenders. We have tested over 2,000 individuals and the police, with voluntary testing, have tested about 1,000 individuals and run about 2,000 tests. We have a lot of information, and again we find that about 60% to 70% of tests result in new information that was not known before and is important to management.

The other aspect, of course, is test outcome. People always want to know how accurate it is, and we know —we have very good estimates. The best study was a comprehensive review carried out by the National Research Council in the United States about 20 years ago, when it was being raised for security vetting in Government agencies. It looked at all the available evidence and found it was between 80% and 90% accurate. That means it gets it wrong about one in five or one in 10 times, but that is a lot better than we can do.

The main question then is: is that accurate enough for the application you want to put it to? What we are talking about is post-release, post-conviction testing as part of monitoring offenders, and in that capacity it is being used alongside a number of other aspects of offender management. You are not relying on the polygraph either to clear someone or to send them back to prison or anything like that; it is not used in that way. It is just additional information that can be added. If you think about different sorts of results that you might get, if somebody, say, passes a polygraph test—I do not like to use the term pass, but I will for simplicity’s sake—and they do not make any disclosures and there are no other concerns about the individual, that provides reassurance that you are not missing anything; it is an agreement with everything else. If, on the other hand, you get some disclosures, that is something that can be investigated further. If somebody fails the polygraph, so they are thought to be lying, and there are already concerns, again, that reinforces that, but if there are not, the polygraph may be wrong—it may be one of the one in five or one in 10 times we have gotten it wrong—but it may also suggest that you need to look at it a bit closer and investigate further.

There were comments before about how if somebody fails a polygraph they are brought back to prison or brought before the courts. That is just not the policy, and we have heard that in the legislation that just does not happen. It is simply a warning sign that you had better take a closer look. Again, we have a lot of evidence from the testing we have done in this country—as I said, over 7,000 tests have been run—to show that that is in fact how things are working.

Can I say one last thing? We often present polygraph testing as if it is something that offenders do not like and is being imposed on them. That is true for some, but others actually find it useful. You have to remember that sometimes you catch people telling the truth, and where you have an individual who is being monitored, because a risk is a great cause of concern and there is a suspicion of them all the time, and they can demonstrate that they are actually not doing anything wrong and their risk is static or decreasing, that is very useful for them. We have anecdotal evidence of offenders saying they found that part of the testing helpful, and they like polygraph tests for that reason—because they can prove that they are following the rules.

[Chris Philp]

Q That is extremely helpful, thank you. What I think you are saying is that the context in which we are looking to use polygraphs for terror offenders, as for sex offenders at the moment in England and Wales, is as a prompt which may, in some circumstances, stimulate further investigation. Just to make sure I have understood you; your evidence is that all the studies you have seen say that that is a safe way of using polygraphs—as a prompt for further investigation—and that public protection is enhanced by doing it. Is that a fair summary of your evidence?

Professor Grubin: It is fair, except that I would say it is more than a prompt and that it actually uncovers information. You have to remember that a lot of this management relies on self-reports, so it is a way of saying, “We’re asking these questions anyway, only now we want you to tell the truth and we have a way of trying to determine whether you are telling the truth.” The other aspect, of course, which is often overlooked is its deterrence effect. If you know you are going to have a polygraph test, you are going to pay a lot closer attention to your activities, your actions and your behaviour. Again, we have a lot of anecdotal evidence—it is very difficult to prove—that people do modify their behaviour, because they know they are going to have a polygraph test.

[Chris Philp]

My final question—

[The Chair]

I am going to have to move on. Let me just to go to Mr Cunningham.

[Chris Philp]

Fair enough.

[The Chair]

Otherwise, we will have too much.

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[The Chair]

Minister, I think I promised I would come back to you.

[Chris Philp]

Q That is extremely kind; I have two final points. We had some commentary from colleagues earlier, before you arrived, that there was no evidence that this would work with terrorist offenders. Given the work with sex offenders and the work on polygraphs around the world, can you comment on whether you believe this could be used to test terror offenders as part of their licence condition monitoring?

Professor Grubin: There are a couple of aspects to the answer to that. First, there is no reason to think it would not work similarly with terrorist offenders. They are people and they respond to polygraph testing like anybody else. It is used with terrorist offenders in other countries, but the problem is that that sort of work is not published. My understanding of it is anecdotal and what people have told me. They certainly find that its use is successful, and they get the same types of response that you would expect from the sex offender work. There is no real difference there. But none of that is published, so it is anecdotal.

One other thing to say from the sex offender work is that we looked at whether, after polygraph tests, there was an increase in actions taken by the probation officers managing those people. You get an increase by a factor of 10, sometimes higher, in actions taken. That does not necessarily mean recall to prison or charging with a new offence, but actions that mean you have an opportunity to reduce risk, which is really what you are looking for here. With any sort of offence where you have time to intervene, polygraph testing provides a good means to get that information to allow you to intervene and reduce risk.

[Chris Philp]

Q That brings me on to the very last question. You have mentioned that one of the main benefits of polygraph testing is that it prompts or helps to persuade the offender to disclose information that they would not otherwise disclose. You described that earlier as “information gain”. Could you give us some examples of how that happens and the kind of information gain that you have seen occur as this has been used?

Professor Grubin: I will give you a couple of examples of that, but the first thing to say is that we do not know why it happens. There are various psychological attempts to explain it, but I know that I have been polygraph tested as part of our training and it was all I could do not to confess to the crime that I was meant to have committed. There is a real urge to disclose that I do not really understand, but there are various theories that I am happy to discuss later on.

To give you a couple of examples off the top of my head, one interesting case was a sex offender who was released from prison. Everything was thought to be going well with him. He disclosed that he had a new girlfriend, which was not known to the offender manager. That seems pretty mundane, but when they found this girlfriend it turned out that she was a single mother, that she was a vulnerable woman, and that this man was visiting her and helping her to paint her sitting room. He would do that in his underwear because he did not want to get his clothes painted. Her daughter was present at that time. A lot of that mirrored the way he had offended before, so that one disclosure about having a new girlfriend led to that man being recalled to prison —not based directly on the disclosure, but only indirectly, once the girlfriend was found and interviewed.

[Chris Philp]

Q Can you quantify the information gain?

Professor Grubin: I am not sure just what you would mean. I can tell you, because I checked these figures before I came, that in the probation testing about 65% of tests resulted in new disclosures in the pre-test. That is information that was important to management but was not known. That might be small bits of information or it might be big bits. After someone fails a test, they are asked to explain why that might be, and about 60% of those tests result in further disclosures to try to explain that. What I cannot say is how many of those were in tests where there were no pre-test disclosures, so it is likely that about two thirds or 70% of tests result in new information.

[Chris Philp]

Wow. Thank you.

Professor Grubin: That does not count something that I think is important but that is always overlooked: the truthful tests with no disclosures that provide reassurance, because decisions can be made on that. In the police world, they do voluntary testing of sex offenders on the register. Someone who is on the register for 15 years and wants to come off it may have been visited once a year for the past five years; there may be no intelligence on him, and an inspector is expected to sign off this person based on that information. If he passes a polygraph test and nothing of concern comes up, that gives them reassurance. Often, though, in those cases we find that bits of information do come up that they should have been aware of, and then they can move forward.

[The Chair]

Order. I am going to have to stop you there because we have run out of time. Thank you very much indeed for your evidence, Professor Grubin.

Ordered, That further consideration be now adjourned. —(Tom Pursglove).

Covid-19: Asylum Seeker Services in Glasgow

Chris Philp Excerpts

Wednesday 17th June 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I congratulate the hon. Member for Glasgow South West (Chris Stephens) on securing this evening’s Adjournment debate. Let me start by putting on record my agreement with the remarks he made at the very beginning of his speech in relation to the disturbances and the violence—the counter-demonstrations—in the city of Glasgow. Violent protest of any kind is abhorrent. People have the right to peaceful protest, and I join him—and, I am sure, everybody in the House—in condemning the acts of violence to which he referred.

Let me start by laying out the United Kingdom’s generosity in welcoming people who are granted asylum and, indeed, people who claim asylum. Last year, the calendar year 2019, there were about 35,000 claims of asylum, which was one of the highest figures in Europe—not the highest, but one of the highest—and last year we granted about 20,000 asylum grants and other forms of protection, so more than half those claims were granted. At the same time, we welcomed 3,000 unaccompanied asylum-seeking children—the highest number of any country in Europe. I am sure that the hon. Gentleman is aware, although he did not mention it in his speech, that just last week or the week before, we announced a significant funding increase to local authorities to support looking after unaccompanied asylum-seeking children. We increased the support by £17 million from about £218 million to £235 million a year. At the same time, we increased the care leaver grant for those people who were UASC but are now part of the post-UASC care leaver cohort, to £240 per care leaver per week, which was an increase of between 20% and 60%, depending on which local authority we are talking about.

Of course, at the same time as we offer that support to asylum seekers, we have the largest—or certainly the second largest—overseas aid budget in Europe. We are the only G7 economy to spend 0.7% of gross national income on overseas aid, around £13 billion or £14 billion per year. We are doing a great deal to help people not just to come to the UK, but who are at risk overseas.

[David Linden]

I am sorry but the Minister is talking absolute crap—

[David Linden]

I withdraw the word “crap”, but the Minister is talking absolute nonsense. He talks about how welcoming the UK is. They are the same UK Government that had “Go Home” vans going round communities, and the hostile environment. I suggest that he cuts the talk about DFID, which has been abolished this week, and focuses on the point made by my hon. Friend the Member for Glasgow South West (Chris Stephens).

[Chris Philp]

I will certainly come on to that point, but no amount of huffing and puffing can disguise the fact that we are the only G7 country meeting the 0.7% of GNI commitment. No huffing and puffing will disguise the fact that we gave 20,000 grants of asylum and protection last year.

[David Linden]

indicated dissent.

[Chris Philp]

The hon. Gentleman can shake his head all he likes, but those are the facts. They are facts that evidence the compassion with which the United Kingdom deals with those very vulnerable people. He can shake his head, and he can fold his arms, but those are the facts.

Let me come on to some of the questions that have been raised. The hon. Member for Glasgow South West spoke at some length about the asylum support rate, but he did not talk about everything that is provided in addition to the cash sum of money, which was increased by 5%, well above the rate of inflation. The cohort concerned get free accommodation. All utility bills are paid for, council tax is paid for, free health care is provided under the NHS, and any children get free education. The method for calculating the cash support rate was tested in court some years ago and found to be lawful. The amount of money is essentially calculated by a formula which has been endorsed by the Court of Appeal. When Members talk about asylum support, I urge them to keep in mind all those other things—the free accommodation, the utility bills being paid, the council tax being paid, NHS healthcare and free education.

The covid situation that the country has been facing is thankfully now easing, but it has of course been a very serious public health crisis. We took the decision on 27 March to suspend the policy of the cessation of support. That is where an asylum seeker’s claim is decided, either positively or negatively, and we ask them to—with notice, of course—leave the supported accommodation estate. Clearly, if they have had a positive decision, they are entitled to find work or to universal credit. If they have a housing problem, obviously they are entitled to all the support that any of our constituents would be entitled to in the ordinary course of events. Clearly, they cannot continue to be supported in asylum accommodation indefinitely as they are essentially members of society like the rest of us who live their lives, just like all of us and our constituents do.

In the event they get a negative decision, the expectation is that they return—

[Stuart C. McDonald]

That was a very welcome decision, and I think it was based on advice from Public Health England. Can the Minister say categorically that Public Health England has been consulted on the decision to go back to cessation of support and evictions, and will he publish that advice as well as the earlier advice?

[Chris Philp]

I was just about to come to that point. When the decision was taken on 27 March to suspend the cessation of support policy—I am grateful that Opposition Members welcomed that move—it was announced as being effective until the end of June. To be clear, no eviction notices have been issued. We are going through the process of thinking carefully about how we transition back to a more normal state of affairs as the coronavirus epidemic abates, and we are doing that in a thoughtful and considered way. We are thinking carefully about all the angles, and we will talk to the relevant authorities, including local government, and take public health advice seriously. This matter is being considered and thought about carefully, and we will proceed in a careful way that gives proper attention to the various considerations. As I hope Members will have seen from our decision, we are determined to be responsible and careful in the way we handle this issue, and I believe our conduct has reflected that.

Let me say a word about the implications of our decision. Although we suspended the cessation policy, we still have intake because people are still claiming asylum. Either they present as cases under section 4 of the Immigration and Asylum Act 1999, or they make fresh claims for asylum. Those claims are not at the level they were before coronavirus, but the level is still quite high. The number of people who are being accommodated in asylum support is going up a lot. Indeed, in the past 10 weeks, it has risen by about 4,000—a significant number. We are working night and day to find accommodation for those extra 4,000 people, and the numbers are going up on a weekly basis. Members will understand that trying to find extra emergency accommodation is difficult, particularly in the middle of a pandemic, but we have done it. We have risen to the challenge, and I thank local authorities, and Home Office officials, for their tremendous work in finding those 4,000 extra places at short notice and in difficult circumstances.

Some questions were asked specifically about the city of Glasgow, which is well represented in the Chamber this evening. As the hon. Member for Glasgow South West said, a decision was taken in late March in relation to 321—he said 300—people who were in temporary serviced apartments. For a variety of reasons, it was decided that those apartments were not appropriate in the context of the coronavirus epidemic—they were not safe to stay in, and as a consequence, people were moved into hotel accommodation. Let me be clear that that is a temporary measure and is categorically not permanent. As soon as circumstances allow, if those people are still receiving asylum support, they will be returned to the sort of accommodation they were in previously.

The hon. Gentleman mentioned cash savings. Over the past 10 weeks, the additional cost of accommodating those extra 4,000 people has run into tens of millions of pounds, and possibly more than that. I assure him that no cost saving is being made anywhere in that part of the Home Office budget. The hotels provide three meals a day that meet dietary requirements. In terms of cultural sensitivity, Korans and prayer mats are provided, and during Ramadan, late evening and early morning food is provided for those who observe it.

The hon. Gentleman mentioned connectivity. Each room has a TV and, critically, wi-fi, and 24-hour reception staff are available, as are translation services and staggered meal times to cater for social distancing. There is full access to the building for cleaning and repairs. Laundry facilities are available on site; there is space for NHS staff and medical consultation, and full provision of things such as towels, soaps, sanitiser, bed linen, toiletries, and feminine hygiene products—all those things are provided. If any areas require further attention, the hon. Gentleman is welcome to write to me and I will happily address those matters.

[Chris Stephens]

rose—

[Chris Philp]

I have only a minute left, but I will take a quick intervention from the hon. Gentleman who secured the debate.

[Chris Stephens]

Will the Minister commit to meet Glasgow MPs, because there are major discrepancies between what he is saying, and what we are being told? I would be obliged if he would meet us.

[Chris Philp]

Of course—I would be happy to meet the hon. Gentleman and his colleagues to discuss any specific concerns. It would be helpful if he could write to me in advance to lay those concerns out in writing, so that I can come with answers, rather than reply off the cuff. If he writes to me first, I would be happy subsequently to meet him and go through his specific concerns.

This country takes its responsibilities very seriously. As I said, we granted 20,000 asylum and protection orders last year, and we have one of the biggest overseas aid budgets in the world. We can be proud of our record, and I am happy to stand here and defend it this evening.

Question put and agreed to.

Damages

Chris Philp Excerpts

Monday 15th June 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I beg to move,

That the draft Fatal Accidents Act 1976 (Remedial) Order 2020, which was laid before this House on 12 February, be approved.

This draft order seeks to rectify an incompatibility with the European convention on human rights identified by the Court of Appeal in the 2017 case of Smith v. Lancashire Teaching Hospitals. It relates to limits on the categories of person eligible to receive an award of bereavement damages under section 1A of the Fatal Accidents Act 1976, as amended in 1982, which excludes a person who has cohabited with the deceased person. The draft order was laid in Parliament on 12 February 2020 and the terms of the Human Rights Act 1998 specify that remedial orders require the order to be strictly focused on rectifying the incompatibility and not on any wider issues no matter how much merit those wider issues may have.

[Jim Shannon (Strangford) (DUP)]

Some of my constituents have contacted me in relation to this matter, so may I just ask the Minister to confirm that the remedial Act and the SI will protect those co-habiting families who see themselves excluded from insurance pay-outs because they had not taken the legal steps to marry, yet, for all intents and purposes, they are life partners and clearly deserve this recognition?

[Chris Philp]

The hon. Gentleman is absolutely right in his assessment. The order will make sure that people who are cohabiting enjoy the same rights to the payments as people who are married or in civil partnerships provided that that cohabitation has continued for a period of two years or more.

The level of bereavement damages is set by the Lord Chancellor and is currently £15,120, having recently been increased in line with inflation. It is worth saying that those payments are of course not designed to make up for the loss of a loved one—we cannot do that—but they are a token amount payable to that limited category of people. They are also able to claim civil damages in relation to a loss caused by their status as dependants under section 1 of the 1976 Act, but that is a separate matter.

This remedial order, as the hon. Gentleman said, allows people cohabiting for at least two years to enjoy the same eligibility for bereavement damages as those who are in civil partnerships or married, thereby correcting the incompatibility identified by the Court of Appeal. We think it is reasonable to set some kind of test to test the permanence of the cohabitation arrangement, to ensure that there is a reasonable level of commitment, and we think that two years is the right period. A similar two-year qualifying period is already referenced in section 1 of the 1976 Act in relation to dependency damages claimed by cohabitants so, by picking two years, there is a degree of consistency, and it avoids the need for the courts to engage in any rather intrusive and probably distressing inquiries about the nature of the cohabiting relationship.

Occasionally, it may be the case that a cohabiting partner also has a spouse somewhere else, who has not yet been divorced. The question might arise, what happens in those circumstances? Again, with the purpose in mind of making this as simple and straightforward as possible, the order states that if that is the case, the amount of money, the damages, are simply divided equally between the two. We could make a case to say that the court should determine who is the more deserving person, the more deserving recipient but, again, that would be intrusive. For the court to try to unpick those sorts of relationships strikes us as inappropriate, hence the simple proposal that has been made.

In closing, I thank the Joint Committee on Human Rights for its scrutiny of the draft order, and for its confirmation that it corrects the incompatibility identified by the Court of Appeal in the case I referred to earlier. We welcome the Committee’s recommendation. I touched on one or two of the points that it made in its response, but this remedial order made under section 10 of the Human Rights Act 1998 corrects a deficiency, rights a wrong, and I commend it to the House.

--- Later in debate ---

[Chris Philp]

I should have started my remarks earlier by welcoming the hon. Member for Hove (Peter Kyle) to his place on the Front Bench. This is well deserved and long overdue, and I look forward to having many exchanges like this in the months, and I hope, for both of us, years ahead. I welcome his support for this remedial order, and I add my thanks to Jakki Smith for her tenacity and bravery in bringing forward the court case as she did. I am sure that the whole House is grateful to her for the courage that she showed, and I concur with the hon. Gentleman’s remarks a little earlier.

The hon. Gentleman made one or two points on the remedial order, including on the description of cohabiting partners. The language has been kept as it is for reasons of consistency with section 1. We thought it would be potentially confusing and inconsistent if we adopted different definitions in section 1(a) as compared with section 1. There is a more general point that touches on that issue and on others that he raised in his remarks, relating, for example, to the stigmatising language that he mentioned. The remedial orders are strictly designed to remedy the deficiency. We did not want to stray more widely beyond that, but as he said, I am sure that opportunities will arise to debate these important issues about bereavement and loss. Those are topics on which the whole House will often agree. I commend this order to the House.

Question put and agreed to.

Resolved,

That the draft Fatal Accidents Act 1976 (Remedial) Order 2020, which was laid before this House on 12 February, be approved.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I could suspend the House, but I really do not think it is necessary if Members promise me that they will swiftly exit without stopping near any other Members. Let us proceed.

Senior Courts of England and Wales

Chris Philp Excerpts

Wednesday 10th June 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I beg to move,

That the draft Court of Appeal (Recording and Broadcasting) (Amendment) Order 2020, which was laid before this House on 12 March, be approved.

The statutory instrument before the House today is intended to enable the inclusion of family proceedings within a pilot project testing the live-streaming of Court of Appeal hearings. The order advances the shared commitment between the Government and the judiciary to increase public engagement and understanding of the court system.

Currently, the recording and broadcasting of court proceedings in England and Wales is prohibited by section 41 of the Criminal Justice Act 1925 and section 9 of the Contempt of Court Act 1981. By virtue of section 23 of the Crime and Courts Act 2013, the Lord Chancellor, with the agreement of the Lord Chief Justice, can make an order in some circumstances lifting the prohibition. That was done in 2013 to allow the recording and broadcasting of proceedings in the civil and criminal divisions of the Court of Appeal. However, that was not extended to the family division. The order before the House today lifts the prohibition on broadcasting and recording hearings in the Court of Appeal in relation to family cases for the first time, thereby furthering our objective of opening up the visibility of justice.

Let me make it clear that whether or not a particular case is actually broadcast will remain a matter for the judge overseeing and hearing the case, so judicial discretion will apply. The confidentiality and anonymity of the parties will be maintained, so the names of any children or the names of parties to a divorce hearing will not be disclosed. Only the judges and the advocates will be broadcast. If by any chance there were a litigant in person, for example, or sensitive witness testimony, we would expect the judge not to allow that to be broadcast, although in the Court of Appeal it is very rare for any witnesses to appear; the arguments tend to be on points of law. So let me reassure the House that the confidentiality of the parties will be fully maintained.

I should add that this order makes no further change to any family proceedings and the confidentiality applying to those; it is simply about broadcasting. I notice the hon. Member for Strangford (Jim Shannon) is present, and I should add that this applies only to England and Wales; it does not apply to Scotland or Northern Ireland.

The order is a small but welcome step in the direction of further opening up our justice system and I commend it to the House.

--- Later in debate ---

[Chris Philp]

I thank the Opposition Front-Bench spokesman for the constructive and thoughtful approach he has been taking this week, and I look forward to that continuing for many months and years to come. I shall briefly answer his principal questions. On the matter of digital access to courts more generally, I completely concur with everything he said. We are absolutely committed to expanding and extending digital access. In particular, the roll-out of the cloud video platform, which is happening as we speak and due to be completed in the Crown courts and magistrates courts by the end of this month, is a critical part of that. I am glad that we can work together in pushing that programme even further.

[Jim Shannon (Strangford) (DUP)]

I am really keen to see the system that is coming in for England and Wales being used in Northern Ireland when the opportunity arises. Is it possible that discussions could take place with the police and justice authorities and through the Northern Ireland Assembly to ensure that this pilot scheme could also be done in Northern Ireland?

[Chris Philp]

I thank the hon. Member for his intervention. Those matters are in the hands of the Northern Ireland Assembly and Executive, but I would certainly be happy to pass on to the Northern Ireland Justice Minister the lessons that we are learning from the jurisdiction in England and Wales, and I would of course encourage them to follow the same path that we are treading if they wished to do so.

On the question of safeguards, the key safeguard in all this is the control that the judge exercises in how a case is conducted. It is still a matter for judicial discretion whether any individual case can be streamed and broadcast. As I said in my opening remarks, we would expect judges not to livestream cases where a litigant in person was present or if there was witness testimony where the identity of the witness might be a matter of sensitivity. We are, as we often do, entrusting to the judge the sensible and safe management of any individual case. With that, I commend this order to the House.

Question put and agreed to.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. I consider that there is no need to suspend the House on this occasion, as I observe that everyone who is intending to leave has now left, and everyone who is intending to be present is now present. So we will proceed immediately to motion No. 3 on Exiting the European Union (Civil Aviation).

Oral Answers to Questions

Chris Philp Excerpts

Monday 8th June 2020 Commons Chamber

[Sir John Hayes (South Holland and The Deepings) (Con)]

If her Department will introduce a cap on the number of immigrants permitted to enter the UK each year.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I thank my right hon. Friend for that question. He has long experience of matters such as this in the Home Office and elsewhere. On 1 January, for the first time in decades, the United Kingdom will have full democratic control over our immigration system, giving us power to determine who comes here and for how long. We do not intend to impose a cap, but our points-based system will ensure that only those with the skills our country needs come to the United Kingdom, and it is our expectation that total migration, as a consequence, will reduce.

[Sir John Hayes]

With the post-covid economy facing unprecedented challenges and the prospect of job losses, in the same spirit that the Home Secretary showed in condemning this weekend’s wicked violence, will the Minister look again at the resident labour market test, which means that jobs have to be offered here before they can be filled from abroad? Rebuilding Britain mean backing British workers.

[Chris Philp]

My right hon. Friend is correct that we want to encourage as many people as we can from the UK to take up job opportunities that are available. Our objective, ultimately, is to see a full rate of employment. We have laid out the points-based test that will apply from 1 January next year, ensuring that only people with high skills can come here, but it is up to this House and this Parliament to keep that under review, to ensure that we are striking the right balance in the way he describes.

[John Redwood (Wokingham) (Con)]

I am grateful for all that the Home Secretary is doing to bring in this new policy, which I hope brings higher wages and higher skills, but does it not also require tougher enforcement against the dreadful people traffickers who are making money out of making a mockery of our laws and undermining all that we stand for?

[Chris Philp]

My right hon. Friend is correct: people trafficking and people smuggling is a shocking offence that causes untold human misery. Last year, Immigration Enforcement made 259 arrests in connection with people smuggling and secured 101 criminal convictions, but I would like to assure him that this is an area where we can, must and will go a great deal further.

[Caroline Ansell (Eastbourne) (Con)]

What steps her Department is taking to help protect victims of domestic abuse.

--- Later in debate ---

[Giles Watling (Clacton) (Con)]

What steps her Department is taking to stop migrants crossing the English Channel illegally.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I am very glad that this question has arisen. We should be absolutely clear that these crossings of the English channel are extremely dangerous. They are crossing the busiest shipping lines in the world. They are facilitated by criminal gangs who are ruthlessly exploiting vulnerable people. The crossings are also entirely unnecessary because France is a safe country and it has a very well-established and functioning asylum system. We are therefore working with our French counterparts around the clock, sharing intelligence between our National Crime Agency and the French authorities, to stop illegally facilitated crossings and to prevent on-the-beach embarkations.

[Dr Lewis]

That is a very clear answer as far as it goes, but it appears that French patrol boats are escorting these dangerously overloaded inflatables across the channel until they reach English waters—I should say UK waters—whereupon our patrol boats pick up the occupants and ferry them to our shores. I understand that this is because we have to save people who put themselves, and sometimes their families, at serious risk at sea, but how can we remove perverse incentives to behave in such a dangerous fashion?

[Chris Philp]

It is worth emphasising that where boats get into difficulties in French waters—for example, if their engine breaks down—the French will pick them up and take them back to France. We must, as my right hon. Friend says, be mindful of safety of life, but we are reviewing our operational practices in these areas, for the reasons he mentions. Half the attempted crossings are intercepted by the French on the beach. We have so far, since last January, returned 155 people who have crossed and we seek to return many more.

[Sally-Ann Hart]

Migration policy is a core aspect of our national sovereignty. Will my hon. Friend please confirm that the UK will have a fair immigration policy that welcomes people who come to the UK legally, irrespective of nationality or religion, and that we will take back control over illegal immigration?

[Chris Philp]

I entirely agree with the point my hon. Friend makes, and with the similar points made by my hon. Friend the Member for Dover (Mrs Elphicke), on this topic. We have a points-based system coming into force shortly. We granted asylum or protection to 20,000 people last year, one of the highest figures in Europe, and we welcomed 3,000 unaccompanied asylum-seeking children, the highest number of any country in Europe. Our legal migration methods are entirely fair. We should therefore be policing illegal migration routes with complete effectiveness, and the Home Secretary and I are determined to do that.

[Giles Watling]

I thank my hon. Friend for his earlier answer, but we know that the migrants, as they cross the channel, sometimes threaten the French navy that they will throw themselves or their children into the sea. That is an appalling act, and we need to get the French navy to step up to the plate and take those people off the boats in international waters. What are we doing now to ensure that this happens?

[Chris Philp]

Discussions are under way between the UK Government and the French Government. Indeed, I am speaking to my opposite number, the French deputy Interior Minister, Monsieur Nunez, on Thursday this week. There is more we are doing as well, including working with the French OCRIEST, the French gendarmes and the Police aux Frontières—the PAF—to ensure that as many of those embarkations are stopped before they even get on to the water. About 50% are stopped before they get on to the water, but we would like that number to be a great deal higher.

[Olivia Blake (Sheffield, Hallam) (Lab)]

What steps she is taking to help prevent hate crimes against (a) people and (b) places of worship while covid-19 lockdown measures are eased.

--- Later in debate ---

[Catherine West (Hornsey and Wood Green) (Lab)]

What recent assessment she has made of the adequacy of levels of financial support for people in the asylum system during the covid-19 outbreak.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I have been making an assessment of this matter in recent weeks, and following publication of the most recent Office for National Statistics data, I can announce to the House today that, with effect from 15 June, the asylum support rate will be increased by 5%, from £37.75 a week up to £39.60 a week. That is about five times higher than the prevailing rate of inflation, which is currently 0.8%.

[Catherine West]

That is rather an ungenerous increase, I have to say, given that the rate can be as low as £37 a day for certain people seeking asylum. However, any increase is something I welcome. Could the Minister tell me whether he could live on under £40 a day?

[Chris Philp]

Well, it is per week: the rate is £39.60 per week. It is calculated by a methodology that is approved by the courts, and it is done with reference to ONS data, based on the incomes of people in the bottom 10% of the population. It is done with reference to figures, by a court-approved method, and that is the right way to fix this thing. I say again that a 5% increase is very substantially higher than inflation.

Sentencing (Pre-Consolidation Amendments) Bill

Chris Philp Excerpts

3rd reading & Committee stage & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons
Thursday 4th June 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

The Bill seeks to pave the way for the consolidation of sentencing procedural law in the forthcoming sentencing code. Currently, when passing sentence, a sentencing judge must consider the sentencing law that was applicable at the time of the offence. Given the number of different pieces of sentencing legislation passed over the years, that is often a complicated exercise. When reviewing that area, the Law Commission discovered 1,300 pages of legislation governing sentencing in this country. When it conducted a review in 2012, it discovered that errors were made in sentencing in 36% of cases, we think as a consequence of the extraordinary complexity of having to work out which piece of sentencing law applied at the time of the offence. Therefore, given the concept behind the sentencing code and its essential precursor, the Bill will ensure that a single set of sentencing legislation is applicable at the time of sentence, to which sentencing judges may refer.

The Law Commission was asked to look at this issue in September 2014. After Herculean labours it reported back in late 2018, but as a consequence of various general elections and other constitutional disruption, only in 2020 do we finally enact this Bill. I put on record my thanks to the Law Commissioners for their work, and particularly Professor David Ormerod, QC, for the enormous amount of work he has done in preparing the sentencing code for which this Bill paves the way.

As I understand it there are no amendments to the Bill’s five clauses, but I will briefly speak to each clause—I will be extremely concise. There are two substantive clauses. Clause 1(3) contains a clean sweep provision that removes those historical layers of sentencing law legislation to which I referred, so that when the sentencing code is enacted, which will be soon, sentencing courts will no longer need to refer to the historical versions of sentencing law in place at the time of the offence, and can instead refer to the sentencing code that was in force at the time of sentence.

We are, of course, extremely mindful of the well-established common law right that no offender should be subject to a heavier penalty at the point of sentence than was in force at the time of the offence. That right is enshrined in article 7 of the European convention on human rights, but the common law right long predates that. Therefore, in recognition of that important principle, there are a series of exemptions to ensure that no offender will suffer a heavier penalty than would otherwise have been the case. Those are expressed in clause 1(4) and (5), and in a wider list of exemptions enumerated in schedule 1.

Clause 2, the second substantive clause, essentially makes a series of amendments and modifications to existing sentencing legislation. Those are enumerated in schedule 2, which is quite long, and they essentially correct minor errors, streamlining sentencing procedural law. For example, they change language to avoid inconsistency and update statutory references. Because any consolidation must operate on the current law, we need to make those changes to enable the consolidation to happen in a technically correct way. They are therefore all essentially technical amendments to ensure that legislation works in the way that is intended.

I stress that the provisions of neither clause 1 nor clause 2 make any substantive changes to sentencing law. They do not increase or reduce the penalties for any particular offence; they simply clarify the way that sentencing law is available to judges to use when they pass sentence. It is a procedural simplification. Nothing in the Bill changes the actual level of sentences that are available to the courts to pass down.

Clause 3 is a technical interpretation clause, clarifying what is meant by the various definitions and phrases used in the Bill. Clause 4 provides regulation-making powers in the Bill, if any changes need to be made that are necessary for the implementation of the sentencing code and for no other purpose. Any such statutory instruments would be made by the affirmative procedure.

Finally, clause 5 sets out the commencement provisions. Although, of course, the regulation-making powers will have effect upon gaining Royal Assent, the wider force of the Bill takes effect only when the sentencing code has been passed. The sentencing Bill enacting the code will be before the House relatively shortly.

I do not wish to detain the Committee any longer discussing clauses to which no amendments have been tabled, but I hope that gives the Committee a flavour of the clauses’ operative effect. This is a piece of extremely important legislation that I think the entire legal community will strongly welcome. It is a shame that it could not have been introduced any earlier, but we are doing so today, and it will greatly improve the operation of criminal sentencing in this jurisdiction. I urge the Committee to agree that clauses 1 to 5 stand part of the Bill.

[Alex Cunningham (Stockton North) (Lab)]

This is the first piece of legislation that I am leading on as a shadow Justice Minister, and I am sure that it will be the first of many over the coming months, particularly given the Government’s legislative programme and the need for action in so many parts of our justice system. It is very clear to me, and to others, that the Government are facing a series of crises, from the impact of the coronavirus in prisons to the huge backlog of cases in the Courts and Tribunals Service, which had reached over 1 million, months before the pandemic. Much action is clearly needed.

I join the Minister in thanking the Law Commission and others who have been working so diligently on preparing this material. As has already been said, this is a largely technical and uncontroversial Bill and we have tabled no amendments. We agree that we cannot continue with complicated and complex guidance on sentencing, which is resulting in unfair sentences that are causing further problems, such as costs and delays in justice processes. Our current system is in no way perfect, by any measure. A near-dysfunctional mess of mixed legislation and amendments has, over time, led to wrong sentencing decisions resulting in lengthy and costly appeals, adding more and more stress to what is an overburdened justice and court system, as I referred to earlier. There must be a standard approach to provide clarity.

Offenders receiving unlawful sentences is unacceptable. That could mean offenders receiving more lenient sentences than the law says they should receive, or it could mean an excessive prison sentence outside of the guidelines for the particular offence committed. The Minister pointed out earlier that the survey showed that 36% of sentences were seen to be wrong. That is unacceptable in a just judicial system.

--- Later in debate ---

[Rob Butler (Aylesbury) (Con)]

I should state at the outset that, before coming to this place, I was a magistrate for 12 years and consequently sentenced a large number of offenders. For some 18 months, I was the magistrate member of the Sentencing Council. While there, I was party to briefings by the Law Commission on the proposed sentencing code that is indirectly the subject of today’s legislation.

The sentencing code is greatly to be welcomed, and thus so is this legislation. It must be right that sentencing law is as clear and straightforward as possible, in the interests of justice for all parties in a case, including, naturally, not only the offender being sentenced, but the victim of the crime, for whom clarity and certainty can be a comfort. It follows that it must be right to take the necessary steps towards achieving that aim by amending existing legislation to facilitate the enactment and operation of the proposed sentencing code. The clean sweep approach covered in clause 1 is a significant step that will help avoid errors and appeals resulting from historic or redundant aspects of legislation being incorrectly reflected in a sentencing exercise. I welcome the improvement that that will bring to initial sentencing decisions and am reassured that the concomitant safeguards against retroactivity will protect human rights.

Although the details of other clauses of this Bill may not seem to merit great discussion in and of themselves, they do form part of a significant and important process to improve a vital element of the criminal justice system. In the interests of brevity, I will reserve any other remarks for Third Reading. However, I ask the Minister to do all he can to ensure that the magistracy is properly trained once these provisions come into place, along with the sentencing code, to ensure that they are able to apply to all correctly and appropriately.

[Chris Philp]

Let me start by also welcoming the hon. Member for Stockton North (Alex Cunningham) to his place on the Opposition Front Bench. Like him, I am looking forward to many exchanges in the coming weeks and months as we debate the volume of legislation coming through and other matters connected to our courts system. He mentioned the issue of the case load before the courts. Of course, the outstanding case load before the Crown court prior to coronavirus was significantly lower than it has been in the past, particularly in the 2000s, but we want to get it down even further. Naturally, coronavirus is causing a number of challenges in the courts, but he will know that we are reintroducing jury trials. That commenced on 18 May and they are now operating in seven courts. We intend to expand that as quickly as we safely can; we hope that a number of courts that have been closed will reopen as soon as they are safely able to do so. He will also be aware that we are expediting the roll-out of the cloud video platform, which will allow many, many hearings to take place on the platform which otherwise, owing to social distancing, would not be possible. This probably is not the time to rehearse everything in detail, but let me reassure him that a huge amount of work is being undertaken by the Ministry of Justice and by Her Majesty’s Courts and Tribunals Service to make sure that our courts system functions in the way that we want and that we avoid the accumulation of large backlogs as a result of the coronavirus epidemic.

The hon. Gentleman asked particular questions on the timing of the Sentencing Bill enacting the sentencing code. As I said, we are hoping to bring that forward in this House as soon as we can. I regret to say that I cannot give him a precise time, as it is still subject to agreement by business managers, but we want to bring it forward as quickly as we can. We will also make sure that regardless of the sequencing between that Sentencing Bill and the Counter-Terrorism and Sentencing Bill, they technically fit together. I was glad to hear him, in essence, welcoming the Counter-Terrorism and Sentencing Bill, which we will be discussing shortly; I hope it is one of those topics where we can approach it across the House in a bi-partisan spirit of co-operation. Matters touching on national security and protecting the public from terrorism are topics where, in general, we are able to work together, and I very much hope that will apply to that Bill as well.

My hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the Chairman of the Justice Committee, echoed my thanks to Professor David Ormerod, which I wholeheartedly endorse and repeat. I wish to give my hon. Friend the assurance he requested that the approach he laid out here in terms of clarity, consistency and consolidation is a principle that we would wish to apply in the future.

It is no good doing the consolidation exercise once and simply having a snapshot. We want it to be, as he put it, a living instrument that will be applied into the future so that the consistency and clarity that the Bill and the sentencing code will bring are not frozen in time but rolled forward and applied in the future too. I can therefore give him the assurance that he asked for.

The hon. Member for Vauxhall (Florence Eshalomi) raised a question following up an intervention, which I recall, from her colleague the hon. Member for Hammersmith (Andy Slaughter) on Second Reading, which happened in a Committee Room a few weeks ago. I think I said that publishing guidelines on common errors that might be avoided was a matter probably best handled by the Judicial College, or possibly the Judicial Office. I will follow up again with them to check in on progress in that area.

In a similar spirit, my hon. Friend the Member for Aylesbury (Rob Butler), who is of course extremely experienced in this area, as he mentioned, drew attention to the importance of training. Again, once the sentencing code is enacted, the Ministry of Justice will work with the Judicial Office, the Judicial College and of course the Magistrates Leadership Executive to ensure that the training measures are in place so that the judiciary who are using the code are able to do so to best effect.

I thank Members who contributed to the debate for their very constructive and thoughtful comments. Again, I commend clauses 1 to 5 to the Committee.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 to 5 ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third Reading

Justice

Chris Philp Excerpts

Monday 4th May 2020 Ministerial Corrections

[Sir Desmond Swayne (New Forest West) (Con)]

How often are the circumstances set out in amendment 1 under new subsection (1)(a)(i) and (ii) actually likely to occur? A life sentence for photographic offences—is that actually likely to happen often?

[Chris Philp]

… It is worth mentioning, in response to my right hon. Friend’s intervention, that amendment 1 adds into the provisions of this Bill sentences of imprisonment for public protection, which can also be handed down for making indecent images. Clause 2 covers the slightly broader type of sentence—namely, extended determinate sentences, whether they are handed down for manslaughter or the failure to disclose the subject of an indecent image. He is quite right to point out that in cases where there has been a failure to disclose the victim of an indecent image, it is more likely that there will be an extended determinate sentence than a life sentence. Indeed, in the case of Vanessa George, the sentence handed down was an extended determinate sentence, so that would have been caught by clause 2 rather than by clause 1.

[Official Report, 3 March 2020, Vol. 672, c. 786.]

Letter of correction from the Parliamentary Under-Secretary of State for Justice (Chris Philp):

Errors have been identified in the response I gave to my right hon. Friend the Member for New Forest West (Sir Desmond Swayne).

The correct statement should have been:

[Chris Philp]

… It is worth mentioning, in response to my right hon. Friend’s intervention, that amendment 1 adds into the provisions of this Bill sentences of imprisonment for public protection, which can also be handed down for making indecent images. Clause 2 covers the slightly broader type of sentence—namely, extended determinate sentences, whether they are handed down for manslaughter or the failure to disclose the subject of an indecent image. He is quite right to point out that in cases where there has been a failure to disclose the victim of an indecent image, there will now be an extended determinate sentence than a life sentence. However, in the case of Vanessa George, the sentence handed down was a sentence of imprisonment for public protection, so that would have been caught by clause 1 rather than by clause 2.

Sentencing Code Volume I: Report

Chris Philp Excerpts

Tuesday 28th April 2020 Written Statements

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I am today announcing the Government’s final response to the Law Commission’s report on the sentencing code, published on 22 November 2018. The final response can be found at: https://www. gov.uk/government/publications/government-response-to-law-commission-report-on-the-sentencing-code.

In May 2019 the Government issued an interim response which accepted the main recommendation of the report to take forward the Sentencing Bill and the Sentencing (Pre-consolidation Amendments) Bill, and committed to consider its 11 secondary recommendations in further detail. Detailed responses to each of those recommendations are set out at the above link.

The Government reiterate their thanks to the Law Commission for the enormous effort that has gone into producing the report and accompanying legislation, and congratulates the Law Commission on an outstanding achievement.

[HCWS210]

Right to Rent Scheme

Chris Philp Excerpts

Wednesday 22nd April 2020 Written Statements

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

We welcome the Court of Appeal ruling that the Right to Rent Scheme is lawful and does not breach human rights law.

The Right to Rent Scheme was launched to ensure only those lawfully in the country can access the private rental sector, and to tackle unscrupulous landlords who exploit vulnerable migrants, sometimes in very poor conditions.

In 2016, a requirement was introduced for landlords and lettings agents in England to take reasonable steps to check they are renting only to someone who has a right to do so. This is to help make sure our immigration laws are respected. It is only fair to the many people who come to the UK legally and to British citizens that accommodation is not taken by people who are here illegally.

Right to Rent checks are straightforward and apply equally to everyone seeking accommodation in the private rental sector, including British citizens, and there are penalties for landlords who fail to complete the checks and who are later found to have rented to someone without a right to be in the UK. We have adapted the checks to make it easier for landlords to carry them out during the coronavirus outbreak. Prospective renters are now able to submit scanned documents, rather than originals, to show they have a right to rent.

We have always been absolutely clear that discriminatory treatment on the part of anyone carrying out these checks is unlawful. Furthermore, the Right to Rent legislation provides for codes of practice which sets out what landlords are expected to do and how they can avoid unlawful discrimination.

We are therefore pleased that the Court of Appeal has overturned the High Court’s ruling and found that the scheme has a legitimate policy purpose and is compatible with the European convention on human rights.

As the Court noted, it is in the public interest that a coherent immigration policy should not only set out the criteria on which leave to remain is granted, but also discourage unlawful entry or the continued presence of those who have no right to enter or be here.

The Right to Rent Scheme forms an important part of our immigration policy. However, as my right hon. Friend, the Home Secretary said in this House, we are carefully reviewing and reflecting on the recommendations in the Lessons Learned review report, including those relating to the compliant environment. We will bring forward a detailed formal response in the next six months, as Wendy Williams recommended.

In the meantime, the provisions passed by this House in 2014 remain in force and a full evaluation of the Right to Rent Scheme is under way. The evaluation includes a call to evidence to tenants, landlords and letting agents; a large mystery shopping exercise; and surveys of landlords. Members of the Right to Rent consultative panel provided input into the design of the evaluation.

The Government are committed to tackling discrimination in all its forms and to having an immigration system which provides control, but which is also fair, humane and fully compliant with the law. The Court of Appeal has found that the Right to Rent Scheme is capable of being operated in a lawful way by landlords in all individual cases. We will continue to work with landlords and lettings agents to ensure that is the case.

[HCWS195]

Oral Answers to Questions

Chris Philp Excerpts

Monday 23rd March 2020 Commons Chamber

[Andrew Rosindell (Romford) (Con)]

9. If she will take steps to ensure that people entering the UK are screened for covid-19 symptoms.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

We are facing an unprecedented threat from covid-19. In response to that, an enhanced monitoring process was implemented by Public Health England during the containment phase to monitor direct flights and identify any ill passengers from affected countries. However, the UK Government do not intend to introduce port screening measures such as temperature checks, as the scientific advice suggests that they simply do not work.

[Andrew Rosindell]

I thank the Minister for his reply, but can he tell us what steps he is taking to ensure that British citizens returning from high-risk countries are fully aware of the need to self-isolate on their return? Will he also promise that any advice that he gives is shared with the Governments of the devolved Parliaments and Assemblies, and also the territories and dependencies? They all need advice, support and help during this very difficult time for our country.

[Chris Philp]

I thank my hon. Friend for that question, and he raises an extremely good and important point, as always. All aircraft flying into the United Kingdom will have an announcement on the symptoms and what to do if any passengers have those symptoms. In the UK, that has been enforced by a notice to airmen filed with the Civil Aviation Authority. In addition, the Government have made sure there are posters and leaflets containing public health information in all international airports, ports and international train stations. The need to self-isolate when people have those symptoms is critical, and I will take up his suggestion and make sure that is propagated to all the other Administrations to which he referred.

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

Will the Minister and the Home Secretary pass on huge thanks to the Home Office staff, the Border Force staff and the police, who are working immensely hard on the response to the coronavirus? Given that other countries have mandatory quarantines in place for people arriving and that the Government in this country withdrew on 13 March the previous advice for travellers coming from high-risk countries such as Italy to self-isolate, does the Minister accept that it is hard to understand why there is no guidance on self-isolation on a precautionary basis for travellers coming from high-risk countries? Will he and Home Secretary look at that issue again? Will they also work with the Home Affairs Committee to ensure that they can attend remote meetings to answer our questions during this crisis?

[Chris Philp]

First, may I echo the right hon. Lady’s comments about the fantastic work being done by civil servants and staff of various Executive agencies? As she has said, they are doing an incredible job in very difficult circumstances. On mandatory self-isolation for people returning from high-risk countries, she is right to say that the advice changed. However, let me reassure her by saying that it is under continual and ongoing scientific evaluation. The Home Secretary and I have both asked recently for refreshed scientific advice, and that is being monitored almost daily. If the scientific advice says that the safety of our country requires a further change in policy, we will certainly do that in response.

On the right hon. Lady’s question about enabling remote hearings for her Select Committee, I am sure that civil servants, officials and Ministers at the Home Office will do exactly that if required, to make sure that her Committee can function and discharge its scrutinising responsibilities, regardless of our current circumstances.

[Sir Edward Leigh (Gainsborough) (Con)]

In previous Home Office questions, I have asked for reassurances from the Home Secretary that those who enter or seek to enter illegally from France are immediately returned, but I have not received that absolute reassurance. As we have a pandemic going on, it is even more important that people who seek to enter illegally are first apprehended, and are then returned, tested and, above all, put into isolation. Can the Minister reassure me that that is going on?

[Chris Philp]

Significant resources are being put into protecting the short straits, particularly the crossing in the direction of Dover. Where people make that crossing cladestinely, they are met by the relevant officials, particularly from Border Force and from immigration enforcement. Of course, one of the screening checks now being done relates to their health, to make sure that if they need to be isolated to avoid the disease being transmitted onwards, that happens. On returns, we are currently bound by the Dublin regulations, but once we exit the transition period, we will not be and there will be an opportunity for us to form our own policy in this important area.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Overwhelmingly, people entering the UK in Orkney and Shetland do so because they are coming off cruise ships. That traffic is currently suspended, as a result of the businesses themselves suspending it. Will the Minister reassure me that if these businesses were to try to reinstate cruise ship business before it was safe to do so, steps would be taken to prevent their doing it?

[Chris Philp]

Let me reassure the right hon. Gentleman that, as I said previously, the scientific advice is at the forefront of the Government’s thinking and there is no question at all of allowing any unsafe operating practice—by cruise ship operators or anyone else. The Government will not contemplate allowing this business to happen until the scientific advice categorically states that it is safe.

[Tom Hunt (Ipswich) (Con)]

13. What steps her Department is taking to reduce burglary and theft in crime hotspots.