Female Offender Strategy: One Year On

Joanna Cherry Excerpts

Wednesday 24th July 2019 Westminster Hall

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairmanship, Ms Ryan, and to follow the hon. Member for Swansea East (Carolyn Harris). I want to compliment the hon. Member for Stretford and Urmston (Kate Green) on securing the debate and on all the work she has done in the area for many years.

The Scottish Prison Service is of course devolved. This afternoon I will say a little about the female offenders strategy in Scotland, but in response to the hon. Member for Shipley (Philip Davies), I want talk about the good international evidence base for treating women offenders differently.

I am glad to say that Scotland has come a long way in its approach to female offenders in recent years. Until the mid-2000s, women found guilty of failure to pay fines for non-payment of television licences could face a custodial sentence to be served alongside women who had committed far more serious crimes. We do not do that in Scotland any longer. There are far more options for dealing with female offenders, and the procurator fiscal, the prosecutor, has the option of a fixed penalty.

More generally, in 2011 the former First Minister of Scotland, Alex Salmond, recognised that Scotland needed a new female offender strategy, and he commissioned my former boss, then Lord Advocate for Scotland, Elish Angiolini, to look into the position of women offenders and the prison estate in Scotland. Her commission reported in 2012, and recommended major changes to the way we deal with women offenders in Scotland.

There was only one exclusively female prison in Scotland. It is a big prison outside Stirling called Cornton Vale, which I visited in my previous profession. It was described by the commission as “not fit for purpose”, and I would agree with that. It was designed to house approximately 300 women, but there were often far more women than that, and they were not getting the services and support they needed. The commission also said that a significant number of women who were sent to prison on short sentences reoffended after release. It pointed out that women offenders tend to have complex issues and needs, with many having experienced domestic abuse, mental health problems, and drug and alcohol addictions, most of which were not getting treated during their incarceration. Importantly—this refers to what the hon. Member for Shipley said—the Scottish commission did not completely condemn the use of prison for female offenders, which it recognised is necessary for serious offenders, but it highlighted the need for prisons to try to rehabilitate female offenders. As a result of that commission, plans to build a new women’s prison in Scotland with the same capacity as Cornton Vale were ditched, and my friend and colleague, the former Cabinet Secretary for Justice, Michael Matheson, opted for a different approach in light of Elish Angiolini’s recommendations. He based that approach on the fact that short sentences do nothing to stop reoffending by women, and said that we needed to consider a more effective way of addressing the problem.

Instead of building a large new prison, he decided that the existing Cornton Vale would be knocked down, and that a small new prison with the capacity for 80 women should be built. Work on that has started already. In addition to that new prison, it was decided that five community custodial units should be built across Scotland, each able to house around 20 women offenders, and with a focus on addressing the underlying issues that they faced. The first two custodial units were commissioned in Glasgow and Dundee, and it is hoped they will be operational within the next two years. That will introduce a more personal and intensive approach that is more relevant to the needs of the individual. Interestingly, the BBC reported that women in Cornton Vale supported those plans, recognising that there is still a need for a custodial estate.

Let me deal with what the hon. Member for Shipley said by returning to Elish Angiolini’s report and the international evidence base that supports the view that there should be a distinct approach for women offenders. As Elish pointed out, such an approach is compliant with domestic and international law and obligations. Her commission identified three broad areas that support the case for a separate approach: the profile of women offenders, the predictors of reoffending by women, and what works to reduce reoffending among women.

For the profile of female offenders, the evidence base shows that, compared with men, women are more likely to pose a lower risk to public safety and to be in prison for dishonesty offences. They are more likely to be placed on remand and to have higher rates of mental health or drug problems. They are also more likely to have histories of physical and sexual abuse and victimisation, and to have dependent children. The commission did not say that such factors do not exist for male prisoners, just that, compared with men, women are more likely to experience them.

[Dr Lee]

Scotland is down the road on this. Can the hon. and learned Lady assure me that the Government in Scotland are auditing everything and building an evidence base for doing this? If one thing might move the dial south of the border, it is if the Ministry of Justice reads the evidence. I looked at this issue in Scotland when I was a Minister, and I was deeply impressed. Is it possible to guarantee that we collect the right evidence so that we can change things in England and Wales?

[Joanna Cherry]

I have no doubt that my colleagues in the Scottish Government are doing that, and I know that in his former role the Minister visited the prison service in Scotland. We have done some things well in Scotland. I do not say it is perfect or that we have got everything right, but it is internationally recognised that the presumption against short sentences in Scotland is changing patterns of reoffending.

I have dealt briefly with the profile of women offenders, but the predictors of reoffending for women are different. For example, research shows that certain factors are much stronger predictors of reoffending for women than for men, such as dysfunctional family relationships—especially family or marital conflict—and poor parent-child attachment, especially for young people. Poverty, deprivation and debt are also bigger reoffending predictors for women than they are for men.

The Angiolini commission found that to improve outcomes for women offenders it is crucial to understand what works to reduce reoffending. Although at the time, due to methodological constraints and the small numbers of subjects, there were few rigorous outcome evaluations of interventions in Scotland, international evidence showed that a number of factors were critical to reducing reoffending by women. One of those was effective intervention, including the thinking skills that need to be in place to challenge antisocial attitudes among women. Another was empathetic practitioners who develop good relationships with women offenders and provide practical and emotional support. The evidence base also supported holistic, rather than stand-alone interventions, and basic services to address women’s needs while in prison. That is just a taste of the international evidence base. It is not discrimination to treat women offenders differently; it is a recognition of the different factors that contribute to women ending up in prison, and that is my answer to what the hon. Member for Shipley had to say.

I look forward to the position in Scotland developing and improving. It is good to know that the Government for England and Wales and the Scottish Government are on a similar track and recognise the clear evidential basis for a different approach to dealing with women offenders.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 9th July 2019 Commons Chamber

[Mr Gauke]

What I would say to the hon. Gentleman is that leaving the EU without a deal risks some significant impacts across the justice system, including potential disruption to goods and services to our prisons; an increase in case load and case complexity across court jurisdictions; increased pressure on our courts system; the loss of access to several law enforcement tools, including the loss of data exchange tools, making it more difficult to protect the public; and market access impacts on our legal sector, restricting or removing our ability to operate in EU markets. So do I think a no-deal Brexit is a good idea? No, I do not.

[Joanna Cherry (Edinburgh South West) (SNP)]

I commend the Secretary of State for his honesty, but I wonder whether he would pass on his knowledge on this subject to the two candidates to be the next Prime Minister, because, despite their recent and mercifully brief visits to Scotland, they seem unaware of the impact on the safety of people living in Scotland and across the UK if we leave the EU without a deal. Has he spoken to them to explain that if we do not have the use of the European arrest warrant, it will be extremely difficult to apprehend people who commit violent crime in this country and then go back to the continent, whereas at the moment this can be done within a matter of days?

[Mr Gauke]

Both candidates for the leadership of my party have made it clear that they do not want a no-deal Brexit, and I wish them well—[Interruption.] I understand that the chances are “a million to one”, so I wish them well in their endeavours.

[Joanna Cherry]

It would seem that the Secretary of State and I must be reading different newspapers. In an earlier answer, he mentioned problems of data protection if we leave without a deal. Has he explained to the candidates to be Prime Minister that leaving without a deal means we would lose membership of Europol and, because of data protection rules, that would mean that not only would the police no longer have access to data held by Europol, but information that Police Scotland has currently been providing to Europol will be removed from Europol databases, thus prejudicing ongoing investigations? Does he agree that it is not acceptable for people in Scotland to have their safety so prejudiced?

[Mr Gauke]

First, I can confirm that I suspect we do read different newspapers, but I agree that the loss of access to various law enforcement tools would make it more difficult to protect the public. I am sure there are ways in which these issues can be addressed, but a much better way forward would be to leave the EU—this is where we disagree—with a deal.

Child Imprisonment

Joanna Cherry Excerpts

Tuesday 25th June 2019 Westminster Hall

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairpersonship, Mr Hosie. I congratulate the hon. Member for South Shields (Mrs Lewell-Buck) on securing this debate.

As a member of the Joint Committee on Human Rights, I am acutely aware of the issues the hon. Lady raised, as a result of our recent investigation into youth detention, solitary confinement and restraint. She also raised wider issues pertaining to the current provision of youth custody, including concerns about not only safety and the use of restraint and force, but segregation of children away from others, the lack of purposeful activity for children in custody, the lack of time out of their cells, the disproportionate number of black and minority ethnic children in custody—the right hon. Member for Twickenham (Sir Vince Cable) referred to that—and the distance from home at which children are sometimes held.

Social work statistics in Scotland in 2017-18 showed an increase of 89% in the average number of residents from outwith Scotland in secure accommodation. That is a form of restriction of liberty, because placing children so far from their family reduces family contact and is clearly detrimental to their wellbeing. I very much endorse the call by the hon. Member for South Shields for children to be placed as close as possible to where they come from.

I have been assisted in preparing for this debate by a helpful briefing from the Howard League for Penal Reform, which historically has had a great deal of involvement in this matter. It was very useful to hear from the right hon. Member for Twickenham how far back these problems go, and how very often the attempts at reform have failed, so that we face the same problems today as we did 10, 20 or more years ago. The Howard League has highlighted the number of children from black, Asian and ethnic minority backgrounds who have histories of care and high levels of health problems. We have children with disabilities held in the sorts of conditions that I have described, and it is simply not acceptable.

It is particularly depressing that the 2017 report by the right hon. Member for Tottenham (Mr Lammy) found that more than 40% of children in prison in England and Wales were from black and minority ethnic backgrounds and that, despite the concerns he raised, that figure has now risen to 51%. That is something that we should all be ashamed of.

As I said, the Joint Committee on Human Rights carried out an investigation into youth detention, solitary confinement and restraint. I will say a little bit about our findings in a moment, but most important for the purposes of this debate is our overall finding that the UK Government must increase its

“efforts to coordinate and reconfigure resources, to ensure that there are enough specialised placements…so that each child can be placed in the most appropriate setting and as near as possible to home.”

We were really advocating for recognition of the fact that these offenders are children, and for a more holistic approach. That is what we have attempted in Scotland, as I will come on to in a moment, and with some success—although I will not pretend that some of the problems we are talking about today do not also occur within the Scottish system.

The focus of the report by the Joint Committee on Human Rights was on solitary confinement and restraint. I must confess that we were greatly assisted by evidence from the Minister responding to today’s debate, who was admirably frank about matters, but some serious questions remain to be answered. Our report found

“substantial medical evidence”

of the significant

“physical and psychological impacts of restraint, particularly when used upon children.”

We were quite clear in our findings that restraint harms children, but it also harms the staff who are trained to inflict it; it undermines rehabilitation, which is the objective of detention; and it contributes to a vicious circle of problems that figure in continued offending by such children.

The Committee found that

“rates of restraint of children…are unacceptably high,”

and that those children’s rights were being routinely breached. We were very clear that the deliberate infliction of pain is

“unacceptable under any circumstances under rights legislation”.

We also stated:

“The use of restraint for maintaining ‘good order and discipline’ must be prohibited in all but the most exceptional of circumstances.”

We recognised that sometimes the behaviour even of children can be extremely challenging for staff, and we recognised the right of staff to act in self-defence when necessary, but we were quite clear that the deliberate infliction of pain on children was unacceptable.

In its report, the Joint Committee also looked at solitary confinement and made it clear that

“the use of separation from human contact is harmful to children if used for more than a few hours at a time and, beyond that,”—

as the hon. Member for South Shields said—

“it can amount to inhuman or degrading treatment that is a breach of children’s rights.”

The evidence we heard showed that incidents of separation—separating a child out from other children where there has been trouble or difficulty—can “drift” so that they end up in what amounts to solitary confinement, which can, in practice, be prolonged.

We were using the term “solitary confinement” to refer to

“isolation from normal human contact”

exceeding 22 hours per day, and “prolonged solitary confinement” where it lasts for more than 15 days.

We noted that many commentators, including all the witnesses that gave us evidence on the issue, disagreed with the Government’s assertion that solitary confinement is not used for children. We agreed with the Government that the guidelines do not permit solitary confinement, but we stated that although Ministers should not allow children to be intentionally placed in solitary confinement, that was, in effect, what was happening: incidents of separating a child out can drift and become severe isolation amounting to solitary confinement. In fairness to the Government, we said that the breach of children’s rights was not a policy decision of the Government, but it was within the Government’s power to prevent it by having closer oversight.

We made various calls, of which the Minister is well aware, on the Government to take immediate steps to ensure that the separation of children from human contact never becomes solitary confinement, and that every decision or review of a decision to extend a period of separation beyond 72 hours should be reported to the Minister, who should lay such information before each House. That might seem an extreme recommendation, but it was in recognition of the fact that we are talking about children and the long-lasting damage that can be done if they are placed in solitary confinement.

Depriving a child of their liberty is one of the most serious actions that the state can take. It must always be used as a last resort, and for the shortest possible time. As I have said, my colleagues in the Scottish Government are committed to reducing the number of young people in custody, and they have had some success in doing so. In Scotland, there has been progress on this issue over a long period of time. In the 1960s, after the Kilbrandon report, Scotland moved to a holistic system of justice for children, and the children’s hearing system was set up for all children under 16. The key difference was a move from an adversarial system to an inquisitorial approach, whereby children’s offending is dealt with by a lay panel, with the idea that we should look to the causes of children’s offending rather than subjecting them to the same criminal justice process as adults.

Many years later, the Taylor report made a recommendation for similar reforms to process in England and Wales. It recommended that all children who plead guilty should be diverted from court to a panel that would investigate

“the causes of the child’s behaviour, including any health, welfare and education issues, and put in place a rigorous Plan that will tackle the factors associated with the offending and give victims and communities assurance that the behaviour is being addressed.”

It is a matter of regret that that recommendation has not been taken up by the United Kingdom Government. Ministers in the Home Office and Ministry of Justice have frequently said that there are aspects of criminal justice policy in Scotland that are useful for the Government of England and Wales to look at in relation to good practice. If we go back to the process by which we deal with children who offend, it might be possible to reduce the number of children who need to be held in a secure setting and therefore reduce the sorts of problems that we are discussing. I ask the Minister to address that issue as well as the questions that have been specifically addressed to him by the hon. Member for South Shields.

Will the Minister explain to us why the Government are prepared to look at only some parts of the Taylor report, and why the UK Government are not looking at a system for England and Wales similar to Scotland’s children’s panel? I also want an assurance from the Minister that the Government—not just him—will take very seriously the recommendations of the Joint Committee on Human Rights. I am sure, given his evidence to the Committee, that such an assurance will be forthcoming. The recommendations were agreed unanimously among Members of both Houses, across all parties, and focused on restraint and solitary confinement.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Edward Argar)]

I thank the hon. Member for South Shields (Mrs Lewell-Buck) for securing a debate on this important subject. I know of her commitment to pursuing the subject and ensuring that it continues to be spoken about in this House, and rightly so.

Depriving a child of their liberty is an action that should be undertaken only as a last resort. It is not a responsibility that any state ever takes lightly. All parties would accept their responsibility for our youth justice system and this area, having served in government. I draw a slight distinction for the hon. and learned Member for Edinburgh South West (Joanna Cherry), although one place I hope to visit—I am always happy to learn from the Scottish experience where possible—is HMYOI Polmont, which would be interesting as a comparator for how the English and Welsh system operates.

I am deeply committed to improving outcomes for children who offend. As all speakers have set out, children who enter the youth justice system are some of the most vulnerable in our society and are disproportionately represented in other at-risk groups with multiple and complex needs. It will not surprise my shadow, the hon. Member for Bradford East (Imran Hussain), to know that I take issue with a number of his points, but I share his view. He set out eloquently the characteristics and context for that cohort of young people who end up in custody. For instance, of 555 children surveyed in YOIs in 2017-18, 16% considered themselves to have a disability, 30% reported emotional or mental health problems, and 45% had been, at some point, in local authority care. It is a key priority for me and this Government to ensure that such children receive the support and interventions they need to fulfil their potential and live a crime-free and constructive life.

The principal aim of our youth justice system, and indeed our justice system, must be to protect society. I argue that we do that most effectively by breaking the cycle of reoffending and enabling effective rehabilitation. To deliver a youth justice system that understands and addresses the underlying causes of offending—a range of bases and other factors, and past trauma buried somewhere in that young person, which the shadow Minister was right to allude to—must be key. We can then ensure that every child has the opportunity to turn their life around and move on from their previous offending behaviour.

I am grateful to the right hon. Member for Twickenham (Sir Vince Cable). It is always a pleasure to hear the leader of the Liberal Democrats speak in Westminster Hall, and although I am not sure that my institutional memory is as long as his, he rightly highlighted the context and stated where we have come from. Colleagues who are Members of the House for long enough so often see the same initiatives and ideas come round for a second time—I am not suggesting that the right hon. Gentleman has been here for that long, but he makes a valid point.

We have seen considerable successes in the youth justice system over the past decade and, as has been said, there has been a reduction of nearly 90% in children entering the system for the first time, from just under 100,000 in 2007-08 to around 14,400 in 2017-18. The total number of children receiving a caution or sentence has decreased by 82% from around 146,500 in 2007-08, to around 26,700 in 2017-18. Importantly, we have seen an unprecedented reduction in the number of children in custody, which has reduced by nearly 70% from a monthly average of around 2,900 in 2007-08, to just under 900—it is often lower—in 2017-18.

I will return to those statistics, but one issue raised by a number of right hon. and hon. Members was disproportionality. The justice system must uphold the principles of equality and fairness for all, and in 2017-18 BAME children made up 45% of the youth custody population on average. I am committed to reducing disproportionate outcomes for BAME children in the system, and I share the concerns voiced by the right hon. Member for Tottenham (Mr Lammy) in his 2017 report. Since my appointment almost exactly a year ago, I have worked closely with him. He has been constructive and has welcomed the significant progress in implementing his reforms. It will not surprise hon. Members, however, to hear that he is always clear that he thinks we need to do more and do it faster, but I put on record my gratitude to him for his engagement.

We recognise the need for systemic change, and the principle underpinning that approach is the “explain or change” system. On occasions, there may be a rational and reasonable explanation for something, and we can furnish that where appropriate. If we cannot explain, we should look to make changes that address disproportionate outcomes for BAME children in the justice system. The shadow Minister may be aware that I met his colleague, the hon. Member for Bolton South East (Yasmin Qureshi), to discuss that and the work being done on it, and I am grateful to her for the constructive nature of those discussions.

When a crime has been committed, we have a duty to consider the needs and background of the perpetrator, but also those of the victim and wider community. As such, it is right that courts have the powers they need to sentence children appropriately. With the exception of the hon. Member for South Shields, I note that no one called for the abolition of imprisonment in this context, and I will come on to speak about what should be defined as an appropriate custodial setting. As is her wont as Queen’s Counsel, the hon. and learned Member for Edinburgh South West chose her words exceptionally carefully when referring to custodial settings, and it is an important point.

[Joanna Cherry]

Does the Minister think that it would be beneficial for the system in England and Wales to follow the lead of Scotland in limiting and doing away with short-term sentences as far as possible? That has worked for adults across the system in Scotland, and reduced reoffending. I know it has been looked at by the Government, but does the Minister accept it is a good idea?

[Edward Argar]

The hon. and learned Lady gently tempts me. She will be aware of the clear statement that I, the Secretary of State and others have made about the effectiveness or otherwise of short sentences. I have often said that a short sentence can be long enough to disrupt family life, education, relationships and home, but too short for any meaningful attempt to grapple with the underlying problems and needs of an offender. There is a particular challenge for young people under 18, because there is already a significant presumption against custody, which must be a last resort.

The offences that attract a custodial sentence—I leave this as a reflection on the nature of the cohort of young people who are in prison—include the possession of an article with a blade or point, common assault and battery, possession of other weapons, robbery, burglary in a dwelling, assault, and actual bodily harm. Those offenders make up the bulk of those sentenced to custody, including with short sentences, and I think that many in this House and beyond would still consider such offences very serious. The hon. and learned Lady will be aware that the Secretary of State set out his intention to bring forward proposals for discussion and consultation on how we approach short sentences, and I suspect that if she is patient, she may see that develop further in the coming weeks.

[Joanna Cherry]

Is the Minister aware of the success of the violence reduction unit in Scotland, and the diversionary schemes that take a holistic approach to knife crime? Those have succeeded in hugely reducing knife crime in Scotland, particularly among young men, not by locking them away but by taking a holistic approach to the problem. Surely that approach should also be followed south of the border.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 4th June 2019 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

It is now well recognised that a system that pushes offenders through a revolving door of short prison sentences simply does not work. Notwithstanding the riders expressed by the Secretary of State a moment ago, the fact is that the Justice Committee, as well as his Government, have recognised that the system in Scotland is working. The Committee’s recent report recommended that the UK Government follow Scotland’s approach of a presumption against short sentences. Will the Secretary of State commit himself to introducing such a presumption in England and Wales?

[Mr Gauke]

I hope to be able to say more about the details of what we want to do in the not too distant future, but in respect of the approach that is being taken in Scotland, it is worth bearing in mind that it is already the case in England that a custodial sentence should be pursued only as a last resort, so there is already something approaching a presumption in the English system. I am interested in seeing whether we could go further than that, but I welcome the hon. and learned Lady’s approach —our shared approach, I think—of scepticism about the effectiveness of short sentences.

[Joanna Cherry]

As someone who worked in the criminal justice system in Scotland for 20 years before coming to the House, I can assure the Secretary of State that the idea that a custodial sentence should be a last resort existed in Scotland before the presumption against short sentences, so that is an additional presumption.

One of the bodies that gave evidence to the Justice Committee pointed out that diverting those who have been identified as low-risk offenders

“from short custodial sentences to suspended custodial sentences could reduce the prison population”

in England and Wales by about 3,000 places. Does the Secretary of State agree that the presumption against short sentences in Scotland can help to reduce the prison population, and could do so if introduced south of the border?

[Mr Gauke]

As I have said, I hope to say more about the approach we want to take, but there is a case that an approach on short sentences along the lines that I have discussed may reduce the prison population, but the principal purpose is not reducing the prison population. It will not be massively dramatic, but I believe it will help to reduce reoffending. That is the big prize, rather than what are likely to be relatively marginal changes to the prison population.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 23rd April 2019 Commons Chamber

[Mr Gauke]

The hon. Gentleman is correct to say that on leaving the European Union we will not have access to the European arrest warrant. We would wish to be able to do so, but there are difficulties. For example, Germany has a constitutional bar in this area. The Home Office continues to work with EU member states to try to find a way in which we can have as effective extradition and arrest warrant arrangements as possible.

[Joanna Cherry (Edinburgh South West) (SNP)]

Justice issues are, of course, largely devolved. EU initiatives such as Eurojust and the European arrest warrant are well utilised by Scottish prosecutors and are hugely valued by them. In the current Brexit talks between the UK Government and the Labour party, will the Secretary of State confirm what proposals regarding justice have been discussed and if the Scottish Government have been or will be consulted on these or any forthcoming proposals that may result from the talks between the Tories and the Labour party?

[Mr Gauke]

I am not going to comment specifically on those discussions. What I would say in the context of no-deal preparations is that, as I understand it, the Scottish Government have not allocated any of the money given to them for no-deal preparation on justice matters. Certainly, when it comes to the United Kingdom, we are doing everything we can to prepare for every eventuality.

[Joanna Cherry]

I can assure the Secretary of State that the Scottish Government’s no-deal planning is well advanced. The Justice Secretary’s Government recently opted into the Eurojust regulation. Eurojust plays a vital role in the fight against serious organised crime, particularly terrorism but also cyber-crime and child pornography. His Department said that opting in was necessary to ensure that the UK continues to work in line with our European partners in the lead-up to exit day and during the transition period. Will he tell us how many more justice opt-ins has he planned before Brexit takes place and will they feature in the Tory manifesto for the EU Parliament elections?

[Mr Gauke]

What I say to the hon. and learned Lady is that we want to work in a pragmatic way with the European Union, so that as we leave the EU, we continue to co-operate wherever we can to our mutual benefit. That does require us to reach a deal.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 12th March 2019 Commons Chamber

[Edward Argar]

I do not accept that our position on the ECHR is ambiguous. Both the political declaration and the White Paper make it clear that our future relationship with the EU should be underpinned by our shared values of respect for human rights and fundamental freedoms, and this includes our ongoing commitment to the ECHR. As I have just made clear, the HRA gives further effect to the ECHR in our domestic law, and we are not considering amending or repealing it.

[Joanna Cherry (Edinburgh South West) (SNP)]

Human rights are, of course, not a reserved matter, and the Scottish Government have an advisory group on human rights in relation to devolved matters. Will the Minister commit to full consultation with the Scottish Government about his future plans for human rights protection across the United Kingdom?

[Edward Argar]

I am grateful to the hon. and learned Lady, as ever, for her question. We work closely with the Scottish Government. I am always willing to listen and speak to them, and I will continue to do so.

[Joanna Cherry]

The Scottish Government’s advisory group on human rights reported in detail on 10 December, setting out three guiding principles for Scotland’s approach to human rights:

“non-regression from the rights currently guaranteed by membership of the European Union; keeping pace with future rights developments within the European Union; and continuing to demonstrate leadership in human rights.”

Can the UK Government commit to each of those principles for the whole of the UK? If not, why not?

[Edward Argar]

The hon. and learned Lady will correct me if I am wrong, but I believe Professor Miller chairs that advisory group. We debated this issue in Westminster Hall some weeks ago and I read his report with interest. We note with interest the measures being considered by the Scottish Government to enhance human rights in Scotland, and the principles and seven recommendations set out in that report. Of course, Scotland’s legal system is separate and distinct from that of England and Wales, but I am considering that report, and others, with great care.

Privatised Probation System

Joanna Cherry Excerpts

Monday 4th March 2019 Commons Chamber

[Rory Stewart]

Absolutely. As my right hon. and learned Friend points out, if we are to reduce the number of people serving ineffective short prison sentences, we must improve the quality of community sentences. That means that we need better supervision of offenders, better sentence planning and more use of technology, including electronic monitoring. One of the key objectives of the reforms that we will be bringing into probation is to reassure not just the public but the sentencers that good community protection exists.

[Joanna Cherry (Edinburgh South West) (SNP)]

In Scotland, the probation service role is carried out by criminal justice social workers, who are part of local authorities’ social work departments—in other words, it is a public service, and I believe that that is as it should be. Effective reintegration and rehabilitation of offenders is at the heart of the Scottish system—rather than profit and hitting targets—and lately in Scotland, of course, we have had great success with getting rid of short-term sentences, which has led to a fall in the rate of reoffending. Does the Minister accept that probation should never be run for private profit and that reunifying the probation service under public control is the only way to properly protect the public across England and Wales?

Finally, this fiasco is part of a long list of scandalous wastes of public money for which the Minister’s colleague the right hon. Member for Epsom and Ewell (Chris Grayling), has been responsible in his roles as Secretary of State for Justice and Secretary of State for Transport. This is one of two such scandals that have come to light over the weekend. We are hearing rumours that he is not coming to the House later today to answer the urgent question about the ferry tendering disaster, so I ask the Minister, for whom I have the greatest respect—I realise that none of this is his fault—to tell us when the right hon. Member for Epsom and Ewell is going to be held to account for his shocking irresponsibility with taxpayers’ money.

[Rory Stewart]

As hon. Members would expect me to say, these things have more nuances and complexities. The basic idea that it is impossible for anybody except the Government to deliver good probation services was disproved, in fact, by the Labour pilot—the Peterborough pilot—which by bringing in the voluntary sector and social investors was able to reduce reoffending by a staggering 9%, particularly by providing something that we are developing at the moment and that does not fully exist yet in Scotland: a fully integrated through-the-gate service linking the prison officer in the prison with probation in the community. We need to take into account that this is not a binary choice.

Human Rights in the UK

Joanna Cherry Excerpts

Wednesday 13th February 2019 Westminster Hall

[John Howell (Henley) (Con)]

It is a pleasure to serve under your chairmanship, Mr Gapes, and a pleasure to follow the hon. Member for Edinburgh East (Tommy Sheppard), who is a fellow member of the Council of Europe. I understand and agree with a lot of what he said.

The European convention on human rights has been around since the early 1950s, and it is worth remembering that it was 1965 when we agreed to abide by the decisions of the European Court of Human Rights in the UK. We have had almost 60 years of a relationship with the European Court of Human Rights and its decisions.

I start by making the point that the convention is not the same as the Human Rights Act, and the European Union is not the same as the Council of Europe. The two are very different and we should take them as such. I have a lot of time for the convention, and I agree with much of what the hon. Gentleman said about it. I was particularly irritated during the referendum campaign that a lot of people got the ECHR confused with the European Court of Justice. The two are completely separate. One is owned by the European Union and the other by the Council of Europe.

I would go on to say that the single biggest contribution to peace in Europe since the end of the second world war has come from the European convention on human rights, together with the work that NATO has done. We should state that, and we should be proud of it, because we have been very much involved in it from the beginning. As the hon. Gentleman and I know only too well, the European Court of Human Rights comes with a democratic mandate. I imagine the hon. Gentleman spends a lot of time, as I do, voting for the judges who are nominated to sit on the European Court of Human Rights. That gives democratic control and is also a means of reflecting, to some extent, the mixture of politics, competence and a whole number of other matters that give the European Court of Human Rights its character.

I am not as enamoured of the EU’s involvement with human rights, which I think has created a very mixed picture. If I am not using the term wrongly, I think that the European Union has tried to steal the mandate of the Council of Europe, which applies to almost twice the number of countries as the EU does—that is where a large part of its strength lies. The relationship between the EU and the European Court of Human Rights is something that we are still debating at the Council of Europe.

UK involvement with the European Court of Human Rights has been a huge success story. It has been a very good illustration of how human rights overall are doing quite well in this country. I do not agree with the hon. Gentleman on the need to extend those human rights to matters such as housing. That is a route to socialist involvement in the running of this country that I do not agree with, and would steer clear of.

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the hon. Gentleman recognise that there are countries across the world, such as South Africa with its new constitution and some Nordic countries, that have a right to adequate housing in their constitutions? Does he consider those to be socialist countries?

[John Howell]

When the EU decided to bring out its own human rights framework, it thought very carefully about what should be included, and it differs from the European Court of Human Rights on only a few exceptions.

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[Alex Chalk]

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

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

[Joanna Cherry]

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

[Alex Chalk]

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

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

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[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Gapes. I congratulate my hon. Friend the Member for Edinburgh East (Tommy Sheppard) on securing the debate. We have had diverse contributions, from the hon. Members for Henley (John Howell), for York Central (Rachael Maskell), for Strangford (Jim Shannon), for Cheltenham (Alex Chalk) and for Edmonton (Kate Osamor). I was particularly interested in the concept of the human rights city, which I was not aware of. I shall look at that as something that Edinburgh might think about. I was also pleased that the hon. Member for Edmonton mentioned the report and findings of the UN rapporteur on poverty. We should bear that in mind carefully as we proceed to look at how we run our economy and society.

The debate is timely, because Parliament is convulsed in a state of indecision at the moment about whether to go for the Prime Minister’s deal, no deal or no Brexit. Everyone is talking about the backstop. It is important in that context not to lose sight of the clear risk posed by Brexit of regression in terms of human rights, across the United Kingdom. It is also important to remember the threat that it poses to human rights in Northern Ireland. At least one speaker today has pointed out how integral the recognition of human rights is to the Good Friday agreement. For anyone interested in that, I highly recommend the briefing paper “The Good Friday Agreement, Brexit, and Rights” by Professor Christopher McCrudden, who is the professor of human rights and equality law at Queen’s University Belfast. The paper was published by the British Academy and the Royal Irish Academy, and makes interesting reading.

I believe that human rights are in a precarious position in the UK at the moment, because despite a clear commitment from the Prime Minister that Brexit would not result in a diminution of rights protections, the UK Government have not to date lived up to that commitment either in the context of Brexit or more widely, as we can see from the UN rapporteur’s report and the huge concern caused by the Windrush scandal and other aspects of the hostile environment policy. Many of us feel that the Government have refused to engage with people’s concerns about the impact of Brexit on human rights. It is concerning that while the Human Rights Act is said to be safe for the duration of the Brexit process, recent events have made it clear that the current UK Government have not lost sight of a long-standing desire on the part of some in the Conservative and Unionist party to repeal and replace the Act.

In the meantime, we know for certain that if Brexit happens we shall lose the charter of fundamental rights. That charter protected a wide-ranging list of fundamental rights and principles, covering certain social and citizens’ rights, and going considerably further than the ECHR. The UK Government have tried to argue that the charter did not add anything to the corpus of UK law, but that is demonstrably false, even going by the UK Government’s own right-by-right analysis from 2017. That highlights how limited UK domestic protections are in certain key areas. That is not just my view; it was echoed by the Joint Committee on Human Rights, of which I am a member.

The Scottish Parliament tried to preserve the benefit of the charter of fundamental rights on or after exit day, in so far as it applied to retained EU law in Scotland. It did that in a Scottish Parliament Bill called the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. Most regrettably, British Law Officers objected to the Bill and held it up until the European Union (Withdrawal) Act 2018 was passed. That retrospectively changed the powers of the Scottish Parliament so that the continuity Bill, in so far as it attempted to preserve the charter in Scotland, was ultra vires. That was a retrograde step. To anyone who says that Brexit has not been used as a power grab on the Scottish Parliament I point out that the UK Supreme Court has clearly said otherwise.

The Brexit process threatens human rights protections across the UK, not just by repealing the charter but because of the wide range of delegated powers afforded to the Executive in the Brexit process. As the withdrawal Act stands, it would allow the amendment of important domestic rights legislation such as the Equality Act 2010, the Modern Slavery Act 2015 and the Data Protection Act 2018 with little or no parliamentary oversight. That is so because, despite the efforts of many of us to amend it, the Act contains no clear prohibition on the use of delegated powers to erode rights protections.

The repeal of the charter, the risks of delegated legislation, and Government obfuscation on these issues—that is also a result of Brexit—all threaten human rights in the United Kingdom. Hon. Members should not just take my word for that, because the Joint Committee on Human Rights criticised the Government over their report on human rights and the implications of Brexit, and stated back in 2016 that it was “regrettable” that the Government had not set out “any clear vision” for how they expected Brexit to impact on the UK’s human rights framework.

In the same report, the Committee found that the Government seemed “unacceptably reluctant” to discuss human rights after Brexit. The then Minister responsible for human rights, the right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald), was either

“unwilling or unable to tell us what the Government saw as the most significant human rights issues that would arise when the UK exits the EU.”

Such reluctance to commit is of particular concern when we consider future trade deals with third countries because many of us fear, as the JCHR hinted, that an unwillingness to discuss such issues in detail is suggestive of a Government who wish to prioritise trade deals over human rights. That is important not only because of the message that it sends out to the UK, but because of the message that is sent out across the world if the United Kingdom does not prioritise human rights.

As my hon. Friend the Member for Edinburgh East said, concern has recently raised its head again about the Government’s long-term intentions regarding the repeal of the Human Rights Act 1998. It is difficult to remember what we all talked about in those dim and distant days before Brexit, but in 2015 and 2016 the current Prime Minister’s avowed desire to get rid of the Human Rights Act was a huge issue, and the big question mark that she raised over whether Britain would continue to observe the ECHR involved us all in a lot of debate. It seems that that issue has merely been put on the back burner, which is concerning.

As my hon. Friend said, in Scotland under devolution two pillars guarantee human rights—membership of the European Union and membership of the ECHR. Scotland now faces being taken out of the European Union against the will of the majority of Scots, and there is a big question mark over the depth of this Government’s commitment to the ECHR. The majority of Scottish voters did not seek or support those threats to human rights, and it is good to know that the Scottish Government are showing the way forward. Scotland’s national action plan for human rights has existed for a number of years, and just before Christmas the advisory group on human rights leadership to the Scottish Government published a report that suggested a new human rights framework for Scotland in the future. That advisory group was asked by the Scottish Government not only to make recommendations about civil and political rights, but to consider social, cultural and environmental rights, as well as if and how to incorporate rights found in United Nations treaties into Scots law and governance.

As my hon. Friend said, in recommending the next steps on Scotland’s human rights journey, the report of the advisory group set out three guiding principles—first, that Scotland should not regress from the rights currently guaranteed by membership of the European Union; secondly, that Scotland should keep pace with future rights developments within the European Union; and thirdly, that Scotland should continue to demonstrate leadership in human rights.

Will the Minister consider each of those principles and say whether the UK Government will sign up to them for the whole of the UK? Will the Government agree that the whole UK should not regress from the rights currently guaranteed by membership of the European Union? Will they agree that the whole UK should keep pace with future rights developments in the European Union, and that the UK should continue to demonstrate leadership in human rights? That is the sort of clarity that the Joint Committee on Human Rights and others have been calling for. I would like to hear such clarity from the Minister today, and if the UK Government cannot sign up to those principles, will the Minister tell us why not?

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 18th December 2018 Commons Chamber

[Lucy Frazer]

My hon. Friend makes an important point about prisoner transfer. Since 2010, we have removed more than 44,000 foreign national offenders from our prisons, our immigration removal centres and the community. Of course, the EU prisoner transfer provisions facilitate those arrangements, but we have other measures in place with over 100 other countries to ensure that we can continue prisoner transfers.

[Joanna Cherry (Edinburgh South West) (SNP)]

The political declaration makes no reference to the Schengen information system database or the European criminal records information system. Both Police Scotland and the Crown Office and Procurator Fiscal Service in Scotland are concerned about that, because both tools are fundamental to fighting and investigating crime. Can the Minister confirm that Scotland will lose access to these measures after Brexit?

[Lucy Frazer]

As I mentioned, the Prime Minister has made it clear that she is seeking to ensure that the measures that underlay them, and the co-operation within them, will continue as far as possible post Brexit.

I should mention, because the hon. and learned Lady often asks about liaison with the Scottish Government, that I spoke to my counterpart, the Cabinet Secretary for Justice on 29 November, and he reiterated to me how pleased he was with our engagement at official level on the negotiations with the EU.

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[Joanna Cherry (Edinburgh South West) (SNP)]

Can the Lord Chancellor assist me in finding out the answer to a question that the Attorney General and the Brexit Secretary have been unable to answer: how much taxpayers’ money did the UK Government spend fighting the litigation that established that the article 50 notice can be unilaterally revoked?

[Mr Gauke]

I certainly cannot give that answer this morning, but of course there is no intention to revoke article 50.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 13th November 2018 Commons Chamber

[Lucy Frazer]

As I have mentioned, Europol and the European arrest warrant—all these areas where we share data—are incredibly important to us, as they are to the EU. We are one of the largest contributors to security information within the EU. The Home Office leads on these matters, and it is trying to ensure that we get the best possible co-operation going forward.

[Joanna Cherry (Edinburgh South West) (SNP)]

Contrary to the assurances that the Minister gave to my hon. Friend the Member for Livingston (Hannah Bardell), the process of leaving the European Union has been marred by the UK Government’s consistent failure to consult the Scottish Government or Scotland’s Law Officers about the impact on Scotland’s separate and independent legal system. Can she now give me an assurance that this is not indicative of a plan to use Brexit to undermine Scotland’s independent legal system, which is of course protected by the Act of Union?

[Lucy Frazer]

We have a devolution Act that sets out very clearly the separate and distinct nature of Scotland. We have almost weekly contact with officials on no deal planning. Paul Candler, who is a director in the MOJ, had a director-level meeting with his colleagues from Scotland and Northern Ireland on 9 November. We are legislating on behalf of Scotland at the Scottish Government’s request and with their permission. We are working very closely with Scotland on a number of SIs. I met the Scottish Law Society chair, Michael Clancy, earlier this year.

[Joanna Cherry]

It is Government contact I am talking about, not contact with the Law Society, important as that is. The Minister should realise that Scotland’s independent legal system is protected not by devolution, but by the 1707 Act of Union. Scotland’s highest court has made a reference to the Court of Justice of the European Union on the question of whether article 50 is unilaterally revocable, not by the Government, but by this Parliament. The case will be heard on 27 November, but the UK Government are fighting it tooth and nail, even to the extent of attempting an appeal to the Supreme Court, despite the fact that an appeal to the Supreme Court is expressly prohibited in Scots law where there has been a unanimous interlocutory decision of Scotland’s highest court. Can the Minister tell me whether that is part of the plan to undermine Scotland’s separate legal system? How much money are the Government prepared to spend on keeping MPs in the dark about the revocability of article 50?

[Lucy Frazer]

This Government are committed to the Union and to respecting the distinct Scottish legal system. I am fully aware of the matter before the Supreme Court, and we look forward to its judgment.