Correction to a Written Parliamentary Answer

Michael Ellis Excerpts

Thursday 20th October 2022 Written Statements

[The Attorney General (Michael Ellis)]

On 23 June 2020, the Attorney General’s Office answered a written parliamentary question tabled by Richard Holden MP. The written answer included incorrect figures relating to the number of overall appeals, and successful appeals that the Department has made against unduly lenient sentences.

The question was:

“To ask the Attorney General, how many (a) appeals and (b) successful appeals the Government has made against sentences on the basis of undue leniency, in each of the last 20 years.” [61628]

The Departmental answer was:

The statistics from 2000 are provided below. It should be noted that Attorney General’s Office does not hold accurate data prior to 2001 and we are not in possession of the data indicating the number of successful appeals for the year 2000”.

However, checks on our data have revealed that some minor corrections need to be made. These corrections are included in square brackets below.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Michael Ellis Excerpts

Consideration of Lords amendments
Wednesday 24th February 2021 Commons Chamber

[The Solicitor General (Michael Ellis)]

I beg to move, That this House agrees with Lords amendment 3B.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to consider Lords amendments 4B to 4J.

[The Solicitor General]

I am very pleased to be here today for the final debate on this important Bill before it receives Royal Assent and becomes law.

The Government introduced the Bill in order to provide a clear and consistent legal basis for the rare occasions when, in the course of their important work keeping us safe, it is necessary and proportionate for undercover agents to themselves participate in criminal conduct. That is a long-standing practice that has proved critical, frankly, in identifying and disrupting terrorist plots, drugs and firearms offences, and child sexual exploitation and abuse. For the first time, the Bill places that covert human intelligence source activity on an expressly statutory basis, providing our operational partners with the certainty that they can continue to utilise this tactic as we continue to respond to the evolving threat picture we face as a nation.

The Bill also resolves the tension that has previously existed where the state is asking an individual to engage in the difficult and dangerous work of frustrating crime without providing those self-same individuals with protection from prosecution for doing so. It will therefore benefit our ability henceforth to recruit and retain covert human intelligence sources.

I want to take this opportunity to thank all colleagues, in this House and in the other place, who have contributed to the thoughtful and detailed debates that we have had on the Bill. It is right that the important issues that it raises are subject to scrutiny, and I hope that Her Majesty’s Government have demonstrated a willingness to engage and provide reassurance where possible, including through private briefings with operational partners such as MI5 and others.

I believe that we have a good piece of legislation, which will now move on to the statute book. It strikes an important balance by providing for clear safeguards and independent oversight without jeopardising the operational workability of the regime.

--- Later in debate ---

[Mr David Davis (Haltemprice and Howden) (Con)]

I start by sending my wishes, with everyone else’s, to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire). The House would perhaps like to know that I spoke to him this afternoon and he is making very good progress. We are all happy about that.

I also commend, in the strongest possible terms, the hon. Member for Walthamstow (Stella Creasy) for the campaign that she has put together, particularly with respect to the Bill as it applies to children. She has proved yet again a formidable campaigner, for which we should all be grateful.

I am still completely against the division between children above and below the age of 16 on whether there is an absolute requirement for an appropriate adult in meetings with the child. Of course, we all know 17-year-olds who are very mature, but we also all know 17-year-olds who are very immature, and in the context of being involved in a criminal investigation, I suspect the latter are far more common than the former. For that reason, I think it entirely wrong that a police officer or officers, no matter how responsible, should be allowed, even in exceptional circumstances, to make judgments about whether an appropriate adult should be present. That being said, the Bill has made significant movements in the right direction—just, I think, not far enough.

The SNP spokesman, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), raised the more general question of the extent of the sort of crime that CHISs could be approved to authorise. Since the Lords dropped the amendments that related to that, that ambiguity—namely, the sheer scope of crimes and whether they could include torture, murder and the like—still applies to the Bill.

That ambiguity arises because of the following. On the one hand, the Government have said that the Human Rights Act intervenes to limit what can be done. I quote Baroness Williams who said that the Human Rights Act provides

“limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful”.—[Official Report, House of Lords, 9 February 2021; Vol. 810, c. 181.]

However, in the court case that precipitated the Bill, that of Privacy International v. the Home Secretary, on 7 May 2019 Mr James Eadie, the Government’s QC, said that

“the state, in tasking the CHIS…is not the instigator of that activity and cannot be treated as somehow responsible for it…it would be unreal to hold the state responsible.”

I have always viewed that as a rather Pontius Pilate statement on this matter by the Government’s lawyer.

That introduces an ambiguity. The Minister, who is an old friend of mine, will understand better than most the standing of what he says since the Pepper v. Hart case of some years ago—namely, that the courts will interpret ambiguous legislation in the light of the way the Minister describes it. I therefore ask him to confirm, in unequivocal terms, for Pepper v. Hart purposes, that authorisation of acts that would breach the Human Rights Act would always be unlawful. I will give way to him now or he can answer when he winds up; I really do not mind.

[The Solicitor General]

I will do it at the end.

[Mr Davis]

That is fine. I will say one last thing with respect to that. If the Government do not make it clear and that still hangs as an ambiguity around the Bill, then the Bill, along with the Overseas Operations (Service Personnel and Veterans) Bill, could well end up with this country being in the International Criminal Court for reasons that the House did not intend. It is that important that the Minister makes that clear.

--- Later in debate ---

[The Solicitor General]

I thank Members for their contributions to this debate this afternoon. I will be brief in my response, as there has been extensive discussion on these issues during the Bill’s passage. First, in response to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), I am happy to confirm that an authorisation of conduct that would breach the Human Rights Act would always be unlawful. All authorisations issued under the Bill must comply with the Human Rights Act or they will be unlawful. I can therefore confirm and place on record that the Human Rights Act binds all the authorised activity of undercover agents, alongside the state itself.

The Government have taken a collaborative approach to the passage of the Bill, as the House knows, recognising the seriousness of national security issues, and I thank Her Majesty’s Opposition for their similar approach. Where we have been able to provide greater reassurance in response to concerns raised by Parliament—for example, on oversight—we have done so, either through briefings, amendments to the code of practice or amendments to the Bill itself.

The Bill provides for a substantive oversight role for the Investigatory Powers Commissioner, who is independent, giving him real-time sight of every authorisation. It sets out detailed additional safeguards for the authorisation of juveniles or vulnerable adults, which will all be subject to oversight by the Investigatory Powers Commissioner. The code of practice that underpins the legislation, which will be subject to debate and vote by Parliament, then sets out the detailed processes that support the Bill and this activity.

Our approach to the Bill has been led by the advice and expertise of our operational partners, who will now implement it. We have sought to ensure that, in seeking to provide greater clarity and reassurance on the safeguards and processes, the Bill is both operationally workable and avoids any unintended consequences for the safety of a covert human intelligence source or, indeed, the wider public. I believe, and operational partners agree, that the Bill does that, and it will now move to Royal Assent.

I close by sending my best wishes to the Minister for Security, as many in the House have done, and expressing my gratitude and abiding respect for our security services and covert human intelligence sources in their work to protect the safety of this realm.

Lords amendment 3B agreed to.

Lords amendments 4B to 4J agreed to.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I will suspend the House for two minutes, to enable arrangements to be made for the next business.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Michael Ellis Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Wednesday 27th January 2021 Commons Chamber

[The Solicitor General (Michael Ellis)]

I beg to move, That this House disagrees with Lords amendment 1.

[Mr Deputy Speaker]

With this it will be convenient to discuss the following:

Lords amendment 2, and Government motion to disagree.

Lords amendment 3, and Government motion to disagree.

Lords amendment 4, and Government motion to disagree.

Lords amendment 5, and Government amendment (b) thereto.

Lords amendments 6 to 14.

[The Solicitor General]

This Bill is an important piece of legislation that places a long-standing tactic on a clear and consistent statutory basis. It provides certainty for those who engage in important and dangerous operations on our behalf that they are able to utilise the tools needed to keep us safe and prevent crime. It also rightly provides assurance to the men and women who may find themselves in risky and dangerous situations in order to provide vital intelligence that the state will not prosecute them for activity that the state has asked them to commit.

Since March 2017, MI5 and counter-terrorism police have together thwarted 28 terror attacks, a figure that is higher than that which the Government provided on Second Reading a few months ago. As the director general of MI5 said when this Bill was first introduced:

“Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented”.

There is a real threat out there, and it is critical that our partners have the tools they need to stop it.

I thank the other place for its detailed and thoughtful debate on this legislation. The other place considered the Bill at length, and has brought forward several amendments to it, which I will now speak to in turn. However, I will first take the opportunity to pay tribute to my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), who is the Bill Minister on this legislation and has taken a typically collaborative and thoughtful approach to it. I think I can say on behalf of the whole House that we wish James all the best for a speedy recovery. [Hon. Members: “Hear, hear.”]

Lords amendment 1 introduces the requirement that an authorising officer must “reasonably” believe that an authorisation is necessary and proportionate. The Government cannot support this amendment because it is both unnecessary and risks creating inconsistency, thereby casting legal doubt on the position in other legislation.

--- Later in debate ---

[Mr Kevan Jones (North Durham) (Lab)]

On juveniles, the right hon. and learned Gentleman is correct that the Bill does not give authorisation to allow for CHIS, because it happens already under the CHIS code of practice, which is also legally enforceable under the Regulation of Investigatory Powers (Juveniles) Order 2000. Given some of the concerns that people rightly have, would it not help to put that into the Bill?

[The Solicitor General]

The right hon. Gentleman makes a perfectly reasonable point, as he very often does. The issue with putting the code of conduct into the Bill is, in part, that the code of conduct is, I think, hundreds of pages long. There are also issues of precedent in terms of codes of practice and codes of conduct elsewhere. However, I will give careful consideration to what he says and hope to come back to it.

Juveniles are authorised as covert human intelligence sources only in exceptional circumstances. There are significant additional safeguards in place for these authorisations, including authorisation that must be given by a more senior-level officer, an enhanced risk assessment process, and a shorter authorisation of only four months, with reviews of that authorisation having to take place at least monthly. Several safeguards will be in place, over and above, in respect of juveniles. There is also a requirement that an appropriate adult would be present in any discussions between the handlers and a young person under 16 years of age, and a rebuttable presumption that this is the case for 16 and 17-year-olds. Let me be clear on this point: the presumption is that an appropriate adult will be in place for meetings with 16 and 17-year-olds. That is the default position, if I can put it that way. If the public authority deems that it is necessary to derogate from that position, the rationale detailing the reasons why should be documented and then considered by the Investigatory Powers Commissioner. The commissioner confirmed that, in practice, juveniles are not tasked to participate in criminality that they are not already involved in.

[Bob Stewart (Beckenham) (Con)]

Thank you, Madam Deputy—Mr Deputy Speaker. Forgive me—a slip of the tongue.

[Bob Stewart]

Forgive me—I am on my knees.

Having done this sort of thing, albeit in a relatively minor way, I want to clarify one thing. Often, information was given to people who were doing this kind of work in the field by juveniles. That does not make the juvenile a source. That information can still obviously be passed on, but clearly there are restrictions on using that juvenile in future. However, the information given by juveniles certainly must not be stopped.

[The Solicitor General]

Not for the first time, my hon. Friend makes a very powerful point by dint of his experience in these matters, and in a moment I will give an example that he might find interesting on that exact point. As I said, the Investigatory Powers Commissioner confirmed that, in practice, juveniles are not tasked to participate in criminality that they are not already involved in. The commissioner also noted that decisions to authorise were only made when that was the best option for breaking the cycle of crime and danger for the young person involved.

To demonstrate how authorisations for juvenile covert human intelligence sources are managed in reality by the police, let me give an example that can also be found in the IPC’s most recent annual report:

“In one…case, a juvenile was carrying out activity on behalf of a ‘county line’ drug supply group”—

a gang. The juvenile owed money to the gang. He or she

“approached the police wishing to provide information. A referral under the Modern Slavery Act was made by the police and a care plan was drawn up with Children’s Services, including relocating the juvenile and finding them a training course. Once this had been done, as an authorised CHIS, the juvenile was able to provide intelligence to the police regarding the ‘county line’ crime group.”

That is a particularly instructive example of the sort of circumstances in which that can apply.

Lords amendment 4 seeks to add further safeguards for the authorisation of juveniles and vulnerable adults when they are granted a criminal conduct authorisation. While the Government recognise the spirit of these amendments, Lords amendment 4 as drafted creates operational issues. For example, the amendment defines exceptional circumstances as

“where all other methods to gain information have been exhausted”.

That requirement has a tendency to risk the workability of the power and, crucially, the safety of the juvenile because there may be occasions, in the cut and thrust of these things, where there are other ways to gain the information, but those other ways may not be the safest way to extricate the juvenile from the situation that he or she finds themselves in and to lead to the best outcome for the juvenile involved. The words in the amendment are too prescriptive and creative operational and workability issues.

--- Later in debate ---

[Mr Kevan Jones]

I welcome what the Minister has said, but would that information be contained in the annual report of the Investigatory Powers Commissioner?

[The Solicitor General]

That is a perfectly reasonable question, but I cannot speak to what might feature in the report of the Commissioner. However, there has been a clear indication from looking at previous reports that he has been as full and frank in his reports as one might expect in the circumstances. I think that is all I can say about what might feature in his reports.

The remaining amendments are either consequential on those discussed or they carve out devolved activity in Scotland. The Government have engaged extensively with the Scottish Government on this legislation, and we are disappointed that we have had to bring forward these amendments, but we do so in respect of the Sewel convention. The Scottish Government were unwilling to recommend legislative consent, despite movement from the UK Government on several issues, as they are requiring express limits on the face of the Bill. As I have mentioned, the Government’s approach to this is driven solely by the advice that we are getting from our operational partners—the people at the coalface, the brave men and women who are doing the job—and I note that operational partners from all parts of this kingdom have advised of the risks to covert human intelligence sources and to the general public of this approach. So it will now be for the Scottish Government to bring forward their own legislation if they wish to place devolved activity on an express statutory basis. I hope and expect that, like the Government, they will strongly follow the advice of their operational partners to ensure that all parts of the United Kingdom retain access to a workable form of this vital tactic.

[Mr Kevan Jones]

I agree with the Minister on this point, but can he clarify whether the non-adoption of this in Scotland will affect the operational impact on, for example, MI5? I understand that that is a national jurisdiction, and not controlled by Scotland.

[The Solicitor General]

What I can say is that the Scottish Government will need to bring forward their own legislation if they wish to place devolved activity on an express statutory basis.

I hope I have outlined in some detail the issues and amendments that the House needs to consider today. The Government have shown a willingness to compromise on the Bill where that helps to reassure Parliament, but only where it does not threaten the operation of this critical tool that prevents crime and saves lives.

[Mr Deputy Speaker (Mr Nigel Evans)]

Initially, I will not be putting a time limit on Back-Bench contributions, but if Members could be concise, that would be welcome.

--- Later in debate ---

[The Solicitor General]

With your leave, Madam Deputy Speaker, I would now like to make some closing remarks. I thank colleagues from across the House for the thoughtful and considered contributions made this afternoon.

First, I shall address remarks about limits and the conduct that can be authorised under the Bill. I make the point again, because it is important: the limits on what could be authorised under this legislation are provided by the requirement for all authorisations to be necessary, proportionate and compliant with the Human Rights Act. There are limits, and they are defined in that way. Nothing in the Bill seeks to undermine the important protections in the Human Rights Act; the Government have been consistently clear on that. Public authorities will not and cannot act in a way that breaches their legal obligations under the Human Rights Act. I say this clearly on the record, from the Dispatch Box: any authorisation that was not compliant with the Human Rights Act would be unlawful.

Let me take this opportunity to thank my right hon. Friend the Member for New Forest East (Dr Lewis) for the important oversight role that his important Committee plays and in particular for his remarks about the difficulties concomitant on placing, or seeking to place, limits in a Bill such as this—he articulated those with typical clarity. Those points were also well made by the right hon. Member for North Durham (Mr Jones), as is usually the case. As we know, both right hon. Members contribute insight from their roles on the Intelligence and Security Committee.

The hon. Member for St Helens North (Conor McGinn) asked me to set out why we cannot have limits in this legislation similar to those in the legislation of some of our partners, such as our great ally Canada. I do not think it particularly useful or helpful to compare UK legislation with legislation in other countries because each country has its own unique laws, public authorities and current threat picture.

We know that covert human intelligence source testing takes place in the United Kingdom, particularly in relation to the unique challenges that we face in Northern Ireland. It is important that we legislate for the particular circumstances in which we need our operational partners to operate, to keep the public safe. Our advice on this issue is based solely on the advice of our operational partners. I hope that all Members place the weight that the Government have placed on their assessment of this issue.

I greatly respect the vast experience of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) in these areas. He is not in his place at the moment, but he raised information presented in argument to the Court of Appeal today. The House will understand that my position as Solicitor General means that I cannot comment on ongoing legal proceedings, but I can confirm that MI5 did not say what my right hon. Friend articulated it had said.

Let me respond now to the points raised by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) on this issue of putting reasonable belief into the Bill.

I will, if I may, confirm again that the Government do not dispute that the test for these authorisations should be one of reasonable belief. We do not support the amendment simply because we need to ensure that legislation is consistent across the board. We cannot have some Acts of Parliament using one form of words, and other Acts of Parliament using another form of words, because then others might interpret those Acts of Parliament to mean different things.

My hon. Friend also asked about civil redress. The Bill does not prevent those who have been impacted by a criminal conduct authorisation from seeking redress where that is appropriate. Any person or organisation can make a complaint, for example, to the Investigatory Powers Tribunal, which is a judicial body that operates totally independently of the Government and provides a right of redress for anyone who believes that they have been a victim of unlawful action by a public authority that has been using covert intelligence or investigative techniques. With regards to the criminal injuries compensation scheme, let me confirm that, in practice, access to that scheme is unaffected by this Bill.

Let me turn now to the important issue of juveniles, which many colleagues have raised, and respond to the points raised on the authorisation of juvenile CHIS. This Bill is not providing a new power for juveniles to be authorised as CHIS. What it does is seek to place on an explicit statutory basis the framework and safeguards for the very rare occasions where a juvenile may participate in criminal conduct in their role as a covert human intelligence source. There are also additional safeguards in place for the authorisation of juvenile CHIS and any authorisation of a juvenile as a source requires additional safeguards, as set out in the Regulation of Investigatory Powers (Juveniles) Order 2000 and considered by Parliament in 2018. That authorisation is required before a criminal conduct authorisation can be granted. Equally, the Investigatory Powers Commissioner will consider every authorisation of a juvenile.

I note that the High Court of Justice considered the safeguards for juvenile CHIS in 2019, as noted by the hon. Member for Walthamstow (Stella Creasy) in her virtual contribution. I also note that the court expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS.

The High Court also set out its view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are utilised only in extreme circumstances and when other potential sources of information have been exhausted. The IPC has concluded similarly.

Let me say specifically that police CHIS handlers are separate from their operational teams and they have a duty to safeguard and promote the best interests of the child as a primary consideration, and the aim of an authorisation is to remove them from the harm that they are already in, not to put them in greater harm.

[Conor McGinn]

I appreciate the Solicitor General giving way and I am reassured by much of what he says, but having just said that the Government would not accept amendment 1 because of the need to be consistent across the law, will he comment on the fact that it is still an anomaly that 16 and 17-year-olds who commit a crime of their own volition are entitled to different protections from 16 and 17-year-olds who commit a crime as a result of a criminal conduct authorisation?

[The Solicitor General]

The reality, of course, is that the safeguards that I have adumbrated in regard to CHIS are very relevant here and, as I have mentioned, there are considerable safeguards that form the protections that we can say with confidence mean that those 16 and 17-year-olds will have very good protection.

I will now turn specifically to the point raised by the requirement for an appropriate adult to be placed for sources aged 16 or 17, which I would like to explore a little bit more. The Regulation of Investigatory Powers (Juveniles) Order sets out a requirement for an appropriate adult to be in attendance at all meetings between a public authority and a source below the age of 16. It must be considered on a case-by-case basis for sources aged 16 or 17, and this is the case for any general authorisation of the CHIS and any specific additional authorisation for participation in criminal conduct, which is what we are debating in this Bill.

Let me be clear, though, that when each case is being considered carefully, there is a presumption that there will be an appropriate adult in place—that is the default position, unless there is a justification for not having an appropriate adult in place. An example of such a justification might be that doing so would not be in the best interests of the child. The best interests of the child are always at the heart of the decision making. If the authorising officer believes that an appropriate adult should not be in place, that justification must be documented, and can be considered by the IPC.

I would caution the House against using examples, whether real or hypothetical—it does tend to be risky to do so, and puts young people at risk—but criminal gangs will seek to apply the scenario that has been set out to their own experience, which could result in them wrongly identifying and putting at risk of harm anyone suspected of being a CHIS. As such, the example suggested by the hon. Member for Walthamstow and by my right hon. Friend the Member for Haltemprice and Howden does not fit with the framework of safeguards that is in place for juvenile CHIS. This could not happen, and we do not recognise the example given.

However, as I said in my earlier remarks, the Government are listening. We will continue to listen, and will do so by means through which we can provide further reassurance about these authorisations. I hope these conversations can continue, and that we can find a means of providing additional reassurance while not risking the safety of a juvenile CHIS. While it is not appropriate to put all 74 pages of the code of practice into the Bill—I think I said “hundreds” earlier, but it is actually only 74 pages— I agree with the right hon. Member for North Durham that it may be appropriate to include some of those safeguards, including confirmation that a juvenile could only be authorised in exceptional circumstances. Not all of the code of practice applies to this Bill, but some parts may, so the right hon. Gentleman makes a perfectly good point.

Turning briefly to Lords amendment 5, I think there is consensus that the additional oversight provided by the requirement to notify a judicial commissioner is reassuring. The commissioner will see all authorisations of juvenile CHIS, and likewise will be able to confirm that all authorisations are compliant with the Human Rights Act.

In response to the question posed by my hon. Friend the Member for Bromley and Chislehurst, let me offer reassurance about what would happen if the IPC or a judicial commissioner did not agree with an authorisation when notified of its grant. A judicial commissioner would flag any concerns to the authorising officer, and they would work collaboratively to address such concerns. If an authorisation has been granted but the activity not yet started, the judicial commissioner and authorising officer will work together to address those concerns. If the activity has started, the authorising officer must take into account any concerns that have been raised, and will continue to discuss these with the judicial commissioner. It would not be the case that a public authority would simply ignore feedback from the IPCO: it is a collaborative process, and the views of the commissioners carry serious weight. However, ultimately, it would be a matter for the court to determine.



Finally, in response to the right hon. Member for North Durham, who asked whether any concerns raised by the IPC will feature in the annual report, I can confirm that the IPC must include statistics on the use of this power, including any errors and areas where improvement has been recommended.

I hope that I have been able to provide additional clarity and reassurance on these issues, and that the House will vote to reject these amendments.

Question put, That this House disagrees with Lords amendment 1.

Rule of Law

Michael Ellis Excerpts

Wednesday 7th October 2020 Westminster Hall

[The Solicitor General (Michael Ellis)]

It is a pleasure, as ever, to be the Minister here at Westminster Hall. I thank the hon. Member for Kirkcaldy and Cowdenbeath (Neale Hanvey) for raising this issue and I congratulate him on securing the debate.

On the rule of law, the freedoms and protections that we all enjoy are crucial. That is an important constitutional principle. It demands equality before the law. It demands access to independent and impartial justice, a Government subject to the law, and law that is clear, unambiguous and concise. The duty of the Law Officers of the Crown is, at least in part, to ensure that the Government act lawfully at all times—that is, that Ministers of the Crown and civil servants act in accordance with the law.

As the hon. Gentleman has made clear, his reason for requesting the debate today was not so much for a general discussion on the rule of law—important though that is—but about the very specific provisions of the United Kingdom Internal Market Bill. I will say a few words about the Bill and the rule of law. The Bill that the Government tabled is clear, and the Government have been clear throughout that they are acting in full accordance with UK law and the UK’s constitutional norms, which have been an example and an exemplar around the world for centuries. The Bill is currently being considered in the other place, having comfortably passed Third Reading in the House of Commons by 340 votes to 256.

Before I move on to legal aspects of the Bill, I note that there will be no change to the powers that the devolved Administrations already have as a result of it. The vast majority of powers with devolved competences returning from Brussels, as they will do from 1 January, will go straight to Holyrood or Stormont or Cardiff Bay. Those include, for example, agricultural measures, air quality—very important—and energy efficiency of buildings, and also elements of employment law. All those areas will go from Brussels straight to the devolved competences. That will mean that the Scottish Parliament, the Welsh Parliament and the Northern Ireland Assembly, which are already among the most powerful devolved Administrations anywhere in the world, will have even more powers. The hon. Gentleman should be delighted by that.

Returning to the rule of law, this House has extensively debated what are now clauses 44, 45 and 47 of the Bill and the interaction of those clauses with the UK’s international law obligations. The Government have explained why the inclusion of those clauses are the actions of a responsible Government to provide a safety net. As I speak, our UK representatives are working in the Joint Committee to try to resolve these difficulties, but, as a responsible Government and a Government for the whole Union of the United Kingdom of Great Britain and Northern Ireland, we must prepare. We have a duty to prepare for all eventualities. We cannot allow the peace process, or the UK’s internal market, to inadvertently be compromised by unintended consequences either of the Northern Ireland protocol in the withdrawal agreement, or anything else. We need an insurance policy. We need a safety net to make sure that our Union—this precious Union—is not broken apart by these agreements.

Protecting the Union is the highest priority. To provide that safety net, the Government considered it appropriate to ask Parliament to provide a means of addressing these issues if the genuine and earnest attempt by the UK’s negotiating team to resolve these conflicts does not succeed. Providing that safety net reflects the difficult and highly exceptional circumstances in which we find ourselves, because we cannot guarantee the result of Joint Committee negotiations. It is, therefore, the only way of ensuring the effectiveness of other more fundamental provisions of the Northern Ireland protocol. These provisions guarantee Northern Ireland’s constitutional status within this kingdom under the Belfast Agreement, and guarantee that Northern Ireland would be part of the United Kingdom’s customs territory. Left to its own devices, and without the Joint Committee to iron out the creases, these inconsistencies would only get worse over time. It may be that the Joint Committee is able to resolve matters, but we must set up these legislative safety nets just in case.

It goes without saying that this does not change the key principle that continues to guide the UK’s approach to international relations and international law. We remain a state that accepts that we are obliged to discharge our treaty obligations in good faith. Our word is our bond. Other sovereign states who deal with us know that. They know it very well, they respect it, and they act accordingly, as in the case of Japan, which recently concluded a free trade agreement with us. There is also an understanding around the world—the Foreign Secretary alluded to it—

[Neale Hanvey]

Will the hon. Gentleman give way?

[The Solicitor General]

I will just finish my sentence. There is an understanding that decoupling from the European Union is a unique—indeed, unprecedented—situation with the added complexity of the peace process and Northern Ireland, and the unstable political landscape that prevailed before the last election. In the difficult and highly exceptional circumstances in which we find ourselves we must, therefore, consider the fundamental principle of parliamentary sovereignty.

I have not been given an awful lot of time, but I must just say that the principle of parliamentary sovereignty means that it is entirely constitutional for Parliament to enact legislation even if provisions within that legislation, once commenced, would affect the UK’s treaty obligations. I will just make this point: section 38 of the European Union (Withdrawal Agreement) Act 2020 reiterated, in terms, that parliamentary supremacy “subsists” notwithstanding the provisions of the withdrawal agreement with express reference to direct effect, the very thing that may potentially be disapplied here. In other words, Parliament had already prepared for that eventuality. It is there in black and white in section 38.

In the United Kingdom, treaty obligations only become binding in domestic law to the extent that they are enshrined in domestic legislation. Whether to enact or repeal legislation, and the content of that legislation, is for this Parliament and for this Parliament alone. It is a dualist approach. It is not uncommon, and it is not rare. In fact, it is shared by Canada, Australia and New Zealand. Parliamentary scrutiny of the United Kingdom Internal Market Bill so far has served to reinforce Parliament’s central role in the UK’s constitution.

In the last minute that I have, I wanted to reiterate this point: other states known for upholding the rule of law have passed domestic legislation that ran contrary to their treaty obligations. For example, in 2018 the Canadian Government introduced domestic legislation to legalise cannabis. That was in breach of specific provisions of the existing treaty obligations under three United Nations narcotics conventions. The Canadian Government acknowledged the breach, but they stated that their approach was still consistent with the overarching goal of those conventions. Debates such as this are an important opportunity to explain how the Government are upholding the rule of law while making provision for the internal market in the UK and retaining the ability to act decisively in the interest of the whole United Kingdom following our departure from the European Union earlier this year, so I thank the hon. Member for Kirkcaldy and Cowdenbeath for raising the issue today.

Motion lapsed (Standing Order No. 10(6))

Unduly Lenient Sentence Scheme

Michael Ellis Excerpts

Monday 5th October 2020 Commons Chamber

[The Solicitor General (Michael Ellis)]

I commend my hon. Friend the Member for Ashfield (Lee Anderson) for a powerful speech on behalf of his constituents and for securing this debate on this important topic. It says a good deal about him that his chosen topic has secured the attendance of so many of our hon. Friends and hon. Members for this Adjournment debate.

I join my hon. Friend in recognising, as he did in his opening comments, our brilliant judiciary. They are rightly renowned the world over for their intellectual brilliance and integrity. I also agree with him about the importance of the unduly lenient sentence scheme. It is a vital feature of our criminal justice system that the Court of Appeal has the ability, and has had for some 30 years, to intervene in the small but important number of cases where sentencing judges get it wrong. Since its introduction more than 30 years ago, the scheme has allowed prosecutors, victims, family members and the general public—in fact, anyone at all— to seek a review by the Law Officers, which means by myself or by the Attorney General, of sentences in the most serious cases that they consider to be unduly lenient.

We have some 80,000 criminal cases in this country per annum, and I wish to be clear that in the vast majority of them—more than 99%—sentencing judges get it right. However, the ULS scheme remains an important safety mechanism to rectify errors in sentencing and to ensure that justice is done in individual cases. As I have said, the number of sentences found to be unduly lenient continues to be a very small proportion, but the number of cases considered by my office has grown significantly, In 2010, 342 sentences were considered by my office, whereas in 2019 that had increased to 577. The Law Officers referred 93 cases to the Court of Appeal, which led to a sentence increase in 63 of those cases.

As my hon. Friend knows, this Government are fully committed to ensuring that justice is done for victims of crime, and the ULS scheme is an important part of that. He proposes an extension of the scheme to cover more sexual offences and crimes where someone has died. Of course, these are clearly serious offences and they are often traumatising crimes for victims and their families, and it is right that they deserve serious and careful consideration by the criminal justice system. He specifically mentioned that the offence of causing death by careless driving is not within the scheme. Two key principles apply to sentencing: the harm caused by a crime and the culpability. In terms of harm, that offence involves the most serious consequence—a death. I want to reassure my hon. Friend that I recognise this, and it is not something we take lightly at all. In terms of culpability, there is an important distinction between dangerous and careless driving, and the sentencing regime reflects that. Sometimes the consequences of a collision may be entirely disproportionate to the culpability of the offender. A relatively minor action by a driver or a single moment of inattention may have horrendous and tragic consequences. That, of course, does not change the fact that the consequences of these cases are dire and devastating for families.

The intention of the ULS scheme is that it is reserved for the most serious cases. That being said, the remit of any extension to the ULS scheme lies with the Ministry of Justice, and the scheme has been extended in recent times. It now covers all cases that are triable only in the Crown court. As well as other serious offences, it covers murder, manslaughter, rape, child sex offences, drug dealing, racially and religiously aggravated crimes, arson, criminal damage and terrorism offences.

Following manifesto commitments by this Government and a further commitment in the 2018 victims strategy, in November 2019 the Government extended the scheme to 14 further offences including stalking, harassment, coercive and controlling behaviour and additional child sexual offences, particularly those involving indecent images of children and abusing a position of trust with a child. I am sure that my hon. Friend and Members across the House will agree that including those horrific and critically damaging offences in the scheme was an important step to take. Those abhorrent crimes carry a distressing and long-lasting impact, and it is our duty to hold perpetrators of the most horrific and serious offences to account.

We have successfully referred cases under the extended scheme to the Court of Appeal. I have done so, including in person. That includes the particularly horrific case of Haitch Macklin, who was sentenced to 20 months’ imprisonment for offences of making indecent images of children. That case involved no fewer than 2,196 indecent photographs and videos in which young children were horrifically abused. I referred the case to the Court of Appeal, and the sentence was increased from 20 months’ imprisonment to four years’ imprisonment.

Every case referred to my office that falls within the scheme is carefully considered by either myself or the Attorney General, and I take great pride in the scheme and the justice that it delivers to victims and their families. I personally present cases in court wherever I can. I presented the reference in the case of Joshua Dalgarno. Dalgarno was an offender who met his former partner on a dating website. He inflicted a range of domestic abuse on her between June and September 2019. The offending comprised a number of violent attacks, obsessive and controlling contact by telephone, controlling the contact the victim had with others, monitoring her telephone and social media contact with others and taking her car. The abuse even continued after the offender’s arrest. Having been released on bail, he threatened the victim and her sister on another occasion, and he had a history of violent offending against his former partners. The offender was originally given a community sentence for an offence of controlling and coercive behaviour. The Court of Appeal agreed with my submission that the sentence was unduly lenient and increased it to three years’ imprisonment.

It is vital that, in cases such as these, abusers are truly brought to justice and victims and the public are afforded protection against further abuse. That is why the ULS scheme is so essential, to ensure that perpetrators of the most serious crimes who inflict violence and psychological abuse on their victims are held accountable.

As well as correcting sentencing errors, the ULS scheme contributes to clarifying the law, recently in the area of so-called one-punch manslaughter and in cases in which offenders believe that they are arranging sexual contact with a child but are in fact speaking with undercover police officers—we are seeing a fair few such cases. The Court of Appeal agreed with my submissions in the cases of Barney Coyle and Michael Taiwo. Those horrific but unconnected cases involved the all too often seen scenario in which, sadly, a punch thrown in the heat of the moment resulted in the death of another human being. The ULS references for both cases led the Court of Appeal to clarify that, notwithstanding that an offender may not intend to kill, the culpability of the offender means that such offences can be of such seriousness that judges need to sentence within the higher categories of the sentencing guidelines.

The cases of Kyle Edwards and Michael Dawson involved the offenders arranging or facilitating the commission of child sex offences. Both offenders believed that they were speaking with children; however, they were speaking with undercover police officers. I referred both cases on the basis that I concluded that the sentences were unduly lenient in and of themselves, but it was also clear that the application of sentencing law in the area could benefit from clarification. Notwithstanding that the offences do not actually involve a real child, sentences must sometimes—in fact, always—look at the culpability of the offender, too: what did they intend to do if they met the child? The Court of Appeal agreed with that submission and further emphasised the appropriate approach to sentencing in these cases.

I will touch briefly on public awareness. My hon. Friend is right that awareness of the scheme is vital. We receive a volume of referrals from victims and the wider public that indicate that they are aware in principle, but I know that we can do more. The Ministry of Justice is in the process of revising the victims code to address its complexity and give victims more clarity on their rights. My hon. Friend also referred to the sentencing White Paper; as he correctly stated, the priority of any Government is the safety and security of their citizens. It is also the Government’s role to provide the right sentencing framework for judges to follow. The ULS scheme is, of course, focused on how judges apply the law and the Sentencing Council guidelines as they stand; it is Parliament that decides the legal framework in which they operate.

My hon. Friend is right that the system of sentencing in England and Wales sometimes does not command the confidence of the general public at large. That is why I am grateful to him for the opportunity this evening to highlight not only the ULS scheme, which I believe commands the confidence of the public, but the measures that the Government and the Ministry of Justice will take to tackle sentencing on a wider scale. The Government will legislate on the measures in the sentencing White Paper in the near future. That legislation will include measures targeted at certain serious violent and sexual offenders so that they will serve two thirds of their sentence in custody, rather than being released automatically at the halfway point.

In conclusion, I am immensely proud of my involvement with the unduly lenient sentencing scheme and the justice that it brings for victims of some of the most horrific crimes. We can only refer cases that appear to us as Law Officers to be unduly lenient, but we will, and do, take the utmost care in that assessment. We frequently receive positive feedback from victims and their families where sentences of offenders are increased; I must say that it can be quite moving when we receive letters and the like from those who have been bereaved, for example, and who are grateful that the case has been reviewed by the Law Officers and referred to the Court of Appeal. However, the scheme is kept under constant review, and I understand that a case may be made that further individual offences or categories of cases merit inclusion.

It is important that there is finality in sentencing for both victims and defendants. Parliament intended this to be an exceptional power, and it is important that any extension is considered carefully. I assure my hon. Friend that I will continue to carefully review every sentence referred to my office that is within the scheme. The Attorney General and I will listen to any representations made regarding extending and improving the scheme.

[Bambos Charalambous]

On the point about improving the scheme, the Solicitor General mentioned awareness as an issue. He also mentioned the victims code coming up soon, but can he enlighten me as to whether he envisages there being greater awareness for victims and their families of the existence of the scheme? Many of them are not aware and do not know about it, so they cannot bring cases to his attention.

[The Solicitor General]

I appreciate the hon. Gentleman’s point. He is right, and we are doing everything we can to make the existence of the scheme more generally known by victims and their families. We are in liaison with the Crown Prosecution Service about how that is done. The victims code should help in that regard. We are seeing a major increase in the number of cases being referred to me and the Attorney General, so the scheme is clearly getting through to a certain extent, but there is more to be done.

In conclusion, I thank my hon. Friend the Member for Ashfield for raising the ULS scheme on behalf of his constituents, whom he powerfully and ably represents. I hope I have reassured him that we as Law Officers take very seriously our role in the scheme. I am pleased to be able to highlight some of the recent successes we have had, which have led to violent and sexual offenders being given sentences they deserve and helped to bring about justice for their victims.

Question put and agreed to.

Extradition (Provisional Arrest) Bill [Lords]

Michael Ellis Excerpts

2nd reading & Programme motion: House of Commons & 2nd reading: House of Commons & Programme motion
Monday 22nd June 2020 Commons Chamber

[The Solicitor General (Michael Ellis)]

I am hopeful that all Members can unite in a common commitment to protect the British public, and I am pleased to have the shadow Ministers, Labour Members and, indeed, other Opposition Members’ support in that.

This is about helping UK policing. I am sure we can all recognise without hesitation the increasingly global society in which we live, and we are sadly all well aware of the threats we face from cross-border criminality. I am confident that this legislation will make the United Kingdom safer. The Bill will ensure that where a person is wanted for a serious offence by a trusted country—I repeat, because those are operative terms: a serious offence by a trusted country—our police have the power, then and there, to get them off our streets, into the court system and before a judge here in the United Kingdom.

[Mr Steve Baker]

I am sorry that I missed the opening speech. Will my right hon. and learned Friend assure me that, as a country outside the European Union, we will not repeat the error forced on us as a member state of thinking that the integrity of the justice systems in all EU member state countries are of an equally high standard? We might, for example, recognise that the Adamescu case in Romania, which I mentioned earlier to the hon. Member for St Albans (Daisy Cooper), demonstrates that some countries are not fit to be included in the list.

[The Solicitor General]

As my hon. Friend knows very well, changed arrangements now with the European Union allow this country to conduct itself with fresh ideas and fresh considerations. But it is important to recognise that the Bill applies to a limited number of countries, with which we have an extremely good relationship, and in which we have considerable trust. Indeed we have considerable experience of their processes and judicial systems.

I just want to touch on a couple of remarks made in this brief debate by hon. Members from across the House. My hon. Friend the Member for North West Durham (Mr Holden) talked about the Bill being not before time. He is right to say that. He supports the mechanisms, including the statutory instrument mechanisms, which will allow an ease of process for the Bill going forward.

The hon. Member for St Albans (Daisy Cooper) talked about the Bill not being about the European arrest warrant and she is right. This is a matter of supporting our police here in the United Kingdom. Clearly, we are involved in negotiations, but nothing is more important, as she will recognise, than the safety of our people. The Bill is limited in scope, but it is important.

The hon. Member for Strangford (Jim Shannon), whose interventions in this House are always very welcome, mentioned, rightly, that the countries in the Bill are trusted partners. I am very pleased that he welcomes it.

The shadow Minister, the hon. Member for St Helens North (Conor McGinn), spoke in similar terms. It is important that on these measures, especially in times like these, we can speak as one about the security of the people of this country and recognise that the legislation does not change any other part of the subsequent extradition process. All the safeguards that currently exist in extradition proceedings in this country, set out under part 2 of the Extradition Act 2003, will continue to apply. The Bill does not do anything to change that. The courts will have the same powers and protections as they do now, including the fact that they must ensure that a person will not be extradited if doing so would breach their human rights in any way; if the request is politically motivated; or if they would risk facing the penalty of death. Our courts can be trusted—the examples are legion—to make sure that the provisions are adhered to.

The Bill seeks to deal with a very simple issue. Currently, as the Under-Secretary of State for the Home Department, my hon. Friend the Member for Torbay (Kevin Foster) mentioned in opening the debate, a potentially dangerous wanted individual who is known to the police can potentially remain at liberty on the streets of this country, able to offend, able to reoffend and able to abscond. Examples exist where that has happened. The new power will see people who are wanted by a trusted country for a serious crime, and who may be a danger to the public, off our streets as soon as they are encountered.

[Bob Stewart (Beckenham) (Con)]

In short, it will extradite them more quickly.

[The Solicitor General]

It will not change the process of extradition, but it will mean that police officers will potentially be able to arrest more quickly because they will be able to act when they have cause to do so.

In conclusion—

[Mr Toby Perkins (Chesterfield) (Lab)]

I am grateful to the Solicitor General for giving way. I am also grateful to him for recognising the position of my colleagues on the Labour Front Bench. He is absolutely right to say that we are united in this House. There is no difference in this House when it comes to the safety of the British people and the extradition of those who need to be extradited. We may disagree on the best way to achieve that, but we are united in that aim.

[The Solicitor General]

I am very pleased to hear the hon. Gentleman say that and it does not come as any surprise to me.

The Government are steadfast in their determination to ensure that officers, upon whom we rely to keep us safe, have the powers they need to do just that. The Bill will provide a small, but important part of that armoury. I commend it to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Extradition (Provisional Arrest) BILL [Lords] (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Extradition (Provisional Arrest) Bill [Lords]:

Committal

The Bill shall be committed to a Committee of the whole House.

Proceedings in Committee, on Consideration and up to and including Third Reading

(2) Proceedings in Committee, any proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings in Committee are commenced.

(3) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(4) Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House, to any proceedings on Consideration or to other proceedings up to and including Third Reading.

Other proceedings

(5) Any other proceedings on the Bill may be programmed.—(Tom Pursglove.)

Question agreed to.

Environment Bill (Programme) (No. 3)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the Order of 26 February 2020 (Environment Bill: Programme), as varied by the Order of 4 May 2020 (Environment Bill: Programme (No. 2)), be further varied as follows:

In paragraph (2) of the Order (conclusion of proceedings in Public Bill Committee), for “Thursday 25 June” substitute “Tuesday 29 September”.—(Tom Pursglove.)

Question agreed to.

Oral Answers to Questions

Michael Ellis Excerpts

Tuesday 28th April 2020 Commons Chamber

[The Solicitor General (Michael Ellis)]

Thank you very much, Mr Speaker. It is a pleasure to be here and to see you—virtually or otherwise.

Her Majesty’s Government are actively considering a range of further options for managing the effect of the outbreak of covid-19. A careful assessment of any implications for civil liberties, including the impact on human rights, equality and privacy, will be an important part of these considerations.

[Afzal Khan [V]]

I welcome the Government’s new focus on testing, tracing and containing the coronavirus, and I believe that the NHS contact tracing app has an important role to play. However, does the Attorney General agree that the legal basis for processing personal data by such an app should be set out in legislation and that this should include a measure that ensures the app stores data in a decentralised manner?

[The Solicitor General]

I am very pleased that the hon. Gentlemen is supportive of the contact tracing app. It is very important because everyone will benefit from the app. If enough people with smartphones download it, it will help stop the spread, slow the epidemic, and protect the NHS. I can assure him and others that the app will be for voluntary participation only. There will be no private identifiable information on it. The whole process will be compliant with data protection and there will be an ethical advisory board monitoring it.

[Ellie Reeves (Lewisham West and Penge) (Lab) [V]]

We support the development of the app, which could be central to the lifting of the lockdown.  However, to be effective it would require more than 60% of the population to sign up, and achieving that would require trust from the public. Will the Solicitor General confirm that the legal basis for processing data under the app will be set out in primary legislation? Will he also confirm that any measures will be compliant with the general data protection regulation, both now and after the Brexit transition period?

[The Solicitor General]

I welcome the hon. Lady to her place. Stakeholder engagement in this matter has been crucial, and continues to be. We have been consulting not only the ethics advisory board for the app, which is chaired by Professor Sir Jonathan Montgomery, but the Information Commissioner, the Centre for Data Ethics and Innovation, the National Data Guardian and many others. Trust is important—it always is—but this app is from NHSX, the tech arm of the NHS, and in this country we trust our NHS with our data. The app is going to be heavily protected and I am confident that it will be very popular.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) [V]]

The Information Commissioner has said that the

“starting point for contact tracing should be decentralised systems that look to shift processing on to individuals’ devices where possible.”

Why have the Government apparently gone against that advice and reportedly opted for a significant centralised data-gathering system, with all the challenges and risks that that brings?

[The Solicitor General]

The app is being developed with expert assistance from a plethora of different sources. Data on the app will not be held any longer than is absolutely necessary, and civil liberties and the privacy of information are absolutely crucial to the development of the app. We want people to trust it and to use it—it is going to be important to protect the NHS and to save lives—so every single mechanism we have will be utilised to protect the privacy of data.

[John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)]

What recent steps she has taken to support pro bono work by lawyers.

[Sarah Atherton (Wrexham) (Con)]

What recent steps she has taken to support pro bono work by lawyers.

[The Solicitor General (Michael Ellis)]

As one of the Government’s pro bono champions, I am proud to support the valuable work provided by the legal and pro bono sectors. I regularly engage with pro bono stakeholders to engage directly with their work. Covid-19 has affected all frontline services, and the pro bono sector is not unaffected. I applaud the efforts of law clinics and pro bono services to continue to provide advice, where possible, over the phone, by email and digitally.

[John Lamont [V]]

The pro bono offer in this country is incredible, and I pay tribute to all those in the legal services market who provide free legal services. Does the Solicitor General agree that we need to do more to promote greater awareness among the public about the legal services that are on offer in this country?

[The Solicitor General]

Yes, absolutely. It is of the utmost importance that members of the public are aware of their rights and responsibilities, as well as the rights of other citizens; this builds confidence and the skills needed to deal with disputes, and ensures that everyone has access to justice. For example, last year 500 schools, 7,500 students and 1,400 legal practitioners supported mock trials in schools. Such work builds on confidence and will support those in the pro bono sphere.

[Sarah Atherton [V]]

Many smaller legal firms want to offer free legal support to those who cannot afford it. Agencies, such as the citizens advice bureau in Wrexham, facilitate pro bono opportunities, and solicitors are covered by those agencies’ professional indemnity insurance. Demand exceeds supply and waiting lists are long. Does my right hon. and learned Friend feel we should incentivise smaller legal firms to undertake pro bono work?

[The Solicitor General]

Yes, increasing numbers of lawyers at all levels are already undertaking pro bono work, as my hon. Friend knows, because they recognise the truth—that it makes a real difference to people, communities and those who would otherwise be denied access to justice. I do encourage all firms of any size to take part; it is a commendable gesture. After all, we know that the legal community rallies admirably to support victims in their hour of need. The covid-19 pandemic is no exception, and I want to encourage lawyers to do as much as they can in that regard.

[Ellie Reeves (Lewisham West and Penge) (Lab) [V]]

The Bar Council survey of 145 chambers revealed that 81% cannot survive the next 12 months without additional support. Similarly, many law firms are also struggling to make ends meet. Even before the pandemic, the publicly funded legal sector was already on its knees due to cuts to legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, hindering not only pro bono work but access to advice and representation across the piece. Will the Law Officers work together with us, at this time of national crisis, and commit to reversing LASPO?

[The Solicitor General]

The Government continue to prioritise legal aid for the matters that need it most—where people’s life or liberty is at stake, where they are at risk of serious physical harm or where children may be taken into care. Pro bono work is an adjunct to, not a substitute for, legal aid funding. We recognise that as Law Officers. It is correct that coronavirus has had a profound impact on us all and will inevitably have an impact on legal advice, provision and services, as it has on all other services, but guidance has been published by the Legal Aid Agency and the Courts and Tribunals Service, and I recommend people check online for the latest information.

The Secretary of State was asked—

Oral Answers to Questions

Michael Ellis Excerpts

Thursday 13th February 2020 Commons Chamber

[Carolyn Harris (Swansea East) (Lab)]

4. What steps the CPS is taking to improve the rate of prosecution of people responsible for female genital mutilation.

[The Solicitor General (Michael Ellis)]

The Crown Prosecution Service is determined to bring those responsible for female genital mutilation to justice. These are complex cases, usually involving very young and vulnerable victims. When expert medical evidence confirms that an offence has been committed, CPS prosecutors work closely with the police from the outset to build robust cases. This Government regard FGM as a serious criminal offence of child abuse, and we are committed to tackling this appalling crime.

[Alex Norris]

I am grateful to the Minister for that answer. In Nottingham, we are really proud to be the first community in the country to declare ourselves a zero-tolerance area for FGM, but we cannot do this alone. We need other parts of the system to work, too, so can the Minister assure me and the campaigners in my community that the Crown Prosecution Service is adequately resourced to do all the good things that he has just described and that it is focused on doing them as a priority?

[The Solicitor General]

I commend the hon. Gentleman and the city of Nottingham for what they are doing in this area. I have been told that piloting and trialling are taking place in some Nottingham schools. The CPS is working very hard to fight the scourge of female genital mutilation. We have lead FGM prosecutors in each CPS area, and there is a stakeholder group for so-called honour-based abuse and forced marriage, as well as FGM. That met twice in 2019, and it is already helping to improve investigation and prosecution performance.

[Carolyn Harris]

The lack of services to support the victims of female genital mutilation is often seen as a reason why so many cases are left unreported. What effect does the Attorney General—whoever that might be—think the cuts to the Crown Prosecution Service have had on the reporting of FGM cases?

[The Solicitor General]

I am pleased to say that £85 million has just been allocated by this Government to the Crown Prosecution Service. That enormous sum has been very well received. The reality is that FGM is a complex criminal offence. It is difficult to prosecute, but when these matters are made the subject of a complaint, every effort is made to gold-standard the process to make proceeding as easy as possible. I say again that the joint police-CPS taskforce—the stakeholder group—was established in order to make progress across this range of areas, including pre-prosecution.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

My hon. Friend has spoken a lot about FGM in the UK, but does he agree that a lot of the problems come when children go abroad? At the moment, the Gambian Government are rewriting their constitution and there is a question mark as to whether they will maintain the clause banning all forms of FGM. Will he reach out to his opposite number in Gambia, through the Foreign Office, and support them in drafting a constitution that is appropriate in this area? Will he also support the work that people such as Nimco Ali are doing to ensure that our voice and the voices of women around the world are heard?

[The Solicitor General]

Nimco Ali is doing some great work in this area. We will liaise with the Foreign Office, where appropriate, to offer our views. I can also say that the point my hon. Friend makes has a tendency to raise jurisdictional issues, which is one of the points of complexity that we have in prosecuting these cases. However, every effort is—rightly so—being made to tackle this appalling crime.

[Liz Twist (Blaydon) (Lab)]

2. What recent discussions he has had with the Director of Public Prosecutions on the effectiveness of the CPS in prosecuting cases involving domestic violence.

[The Solicitor General (Michael Ellis)]

Domestic abuse offences are horrific crimes that can have long-lasting traumatic effects on victims. It is of the utmost importance that victims are provided with robust protection to protect them from repeat offending. The Crown Prosecution Service is committed to prosecuting these crimes and ensuring victims are supported. That is why the CPS led the implementation of a national domestic abuse best practice framework for magistrates court cases in 2019. The framework provides a holistic approach, going further than the criminal justice system and ensuring consistent good practice by all agencies.

[Liz Twist]

Nearly three quarters of a million domestic abuse-related cases were recorded in total—a rise of almost a quarter on the previous year. What is the Attorney General doing to combat that and to ensure that many more cases are prosecuted?

[The Solicitor General]

I thank the hon. Lady for raising this important issue. In 2007-08, offences involving violence against women and girls accounted for 7.1% of CPS case load. The figure is now 17%, but I very much accept that more work needs to be done. There has been a rise of over 8% in prosecutions for crimes of violence against women and girls, and the conviction rate has risen—it is now 78.2%. However, I agree that more needs to be done, and it will be.

[Nick Thomas-Symonds (Torfaen) (Lab)]

In the year to March 2019, which is the last year for which we have a full set of statistics, the number of domestic abuse incidents and crimes recorded by the police in England and Wales increased by over 118,000 on the previous year. However, over the same period, police referrals to the CPS fell by 11%. What are the Government going to do about that?

[The Solicitor General]

The Government are working very hard in this area. In fact, I have personally dealt with a case in the Court of Appeal, trying to get the sentence raised on a domestic violence rape. However, I understand that the reduction in the number of suspects charged, together with the falling charge rate, is a cause for concern. We await the findings of what the hon. Gentleman knows is the cross-Government review of the criminal justice system’s response to this matter, but the report by Her Majesty’s Crown Prosecution Service Inspectorate identifies a number of relevant issues, and I urge him to have a look at it.

[Nick Thomas-Symonds]

The statistics show that 2.1 million people experienced domestic violence over this period—1.4 million women and 700,000 men. There is also this shocking disparity between the number of incidents and the number of subjects charged. The Solicitor General talks about there being a cause for concern and about reviews, but surely, given the scale of the problem, we need action now.

[The Solicitor General]

Action is being taken now. CPS policy on charging these matters, including on the charging of rape, has not changed. The code test has not changed; it still applies to all cases, no matter how minor, no matter how serious. Prosecutors do not apply a bookmaker’s test on this. They do not try to second-guess the jury. Where there is sufficient evidence to prosecute, they do, and they will. The CPS will not hesitate to do that.

[Mike Wood (Dudley South) (Con)]

My constituent Chloe was held captive by her former partner for several months, but she found the time waiting for her abuser’s trial almost as traumatic. Does the Solicitor General agree that if we are to expect the survivors of domestic abuse and violence to have the bravery to come forward, they need to be confident that they will get the support they need at this horrific time?

[The Solicitor General]

Yes, it is very important that they have the maximum support. Delay is always undesirable. I might add that, in an inspection into domestic abuse cases that was published only a few weeks ago, inspectors noted that CPS prosecutors had applied the code correctly in 100% of cases they examined.

[Kirsten Oswald (East Renfrewshire) (SNP)]

The recent criminal justice joint inspection report noted that

“the domestic abuse caseload for both the CPS and the police has increased by 88% against the backdrop of a 25% reduction in police and CPS funding.”

This is leaving staff stretched and facing difficult decisions. Will the Solicitor General pursue the Chancellor for the resources necessary so that decisions are made according to public interest, rather than budgetary pressures?

[The Solicitor General]

These decisions are always made according to public interest and not to budgetary pressures. As I have mentioned before, the Treasury has already supplied £85 million more to the CPS, which is a very welcome sum and will be well spent.

[Andrew Griffith (Arundel and South Downs) (Con)]

3. What steps the CPS is taking to prosecute people responsible for county lines criminal activity.

[The Solicitor General (Michael Ellis)]

The county lines model of drug distribution blights communities and fuels serious violence. The CPS provides early advice to law enforcement to build strong cases against county lines and to ensure the robust prosecution of those using county lines to sell drugs. We have recent cases that highlight that model.

[Andrew Griffith]

We are all victims when it comes to county lines drug gangs, and no more so than my constituents in Hassocks, which lies on the main London to Brighton railway line. On their behalf, will my right hon. and learned Friend consider making involvement in county lines activity an aggravated offence?

[The Solicitor General]

My hon. Friend makes a very good point. British Transport police is doing good work in this area, and the Home Office is providing £25 million of targeted investment over this year and next year to tackle this particular issue, £5 million of which is already in operational use. Overall, expanding the national county lines co-ordination centre will be very positive in getting results, including work with British Transport police to prevent disruption on the rail network. There is also investment in new technology, including automatic number plate recognition. We are working across the board with law enforcement agencies and partners to deal with these gangs.

[John Lamont]

As well as addressing county lines networks, what discussions is my right hon. and learned Friend having with the Scottish Government to deal with county lines across the border between Scotland and England?

[The Solicitor General]

My hon. Friend is right to raise that point. I am pleased to say there is good co-operation across jurisdictions—between the English and Scottish authorities—and between the different counties in England that co-ordinate on these matters. The NCLCC is working in this area, and I understand it is working very effectively.

[Margaret Ferrier (Rutherglen and Hamilton West) (SNP)]

The work of these gangs stretches right across the UK, with more than 20 known to be operating county lines in Scotland. Can the Solicitor General assure me that prosecutors in the different criminal jurisdictions are working closely together to ensure that those behind “country lines” are brought to justice as speedily and effectively as possible?

[The Solicitor General]

The hon. Lady raises a good point. We know that county lines do not respect internal borders, and Police Scotland is engaged in the national law enforcement response to this issue. I am pleased to say Police Scotland is working as part of the NCLCC, which was established with £3.6 million of Home Office funding in 2018.

[Jessica Morden (Newport East) (Lab)]

5. What steps the Government are taking to increase public understanding of the law.

[The Solicitor General (Michael Ellis)]

I chair the public legal education committee, and I regularly engage with stakeholders and other Government Departments on public legal education to explore how we can increase public understanding of the law. Valuable work is ongoing in this area. During Justice Week, for example, the “big legal lesson” will be delivered in schools around the country on 24 February 2020. I will also attend an MP drop-in session in Portcullis House on 26 February—you will be very welcome, Mr Speaker—to raise awareness of the justice system. I urge all colleagues to pop by.

[Jessica Morden]

We are seeing more and more litigants-in-person due to the Government’s legal aid cuts, and many people never pursue their rights to see their children or to make financial claims because they do not know how. What will Ministers do to help people access justice, which is their right?

[The Solicitor General]

It is right that public legal education provides people with vital awareness, which is what it does. People need knowledge and understanding of their rights and responsibilities, but it is wrong to say it is a quid pro quo with legal aid. It acts as an adjunct to legal aid, and individuals face difficult challenges and sometimes require additional help. The pro bono work we see in the public legal education carried out by the legal and the third sectors helps to make a real difference. I have visited a number of locations, including the pro bono unit at the University of Leicester just last week, and they are helping people. This is a valuable exercise.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Understanding of the law is vital for the rule of law, but as the president of the Law Society reminded us this week, in the light of the deportation rulings, so, too, is judicial review. So why does No. 10 keep attacking judges, instead of law-breaking Ministers? Is judicial review not all the more important because although Parliament might not be “dead”, as the former Attorney General described it, it is utterly supine on providing checks on ministerial powers?

[The Solicitor General]

I do not think Parliament is supine in any context. The reality of the matter is that public legal education provides valuable insight and awareness to young people, in particular, about rights and responsibilities. I do not recognise the characteristic the hon. Gentleman puts on the issue.

[Dr Jamie Wallis (Bridgend) (Con)]

7. What recent assessment he has made of the effectiveness of the CPS in prosecuting offences against emergency workers.

[Eddie Hughes (Walsall North) (Con)]

8. What recent assessment he has made of the effectiveness of the CPS in prosecuting offences against emergency workers.

[The Solicitor General (Michael Ellis)]

The CPS takes offences against emergency service personnel extremely seriously. Between November 2018 and November 2019, the first year of the offence coming into effect, almost 20,000 offences were charged under the Assaults on Emergency Workers (Offences) Act 2018, three quarters of which were assaults by beating; there were 19,771 offences against emergency workers, including 5,362 common assaults. In January, the CPS published a joint agreement with the National Police Chiefs’ Council, NHS England, the National Fire Chiefs Council and Her Majesty’s Prison and Probation Service. This shared understanding, and it will ensure that cases continue to be prosecuted and investigated effectively.

[Dr Wallis]

Reports of serious and violent crimes endured by emergency services staff have caused some of my constituents worry and anguish about loved ones who work in this area. What assurances can my right hon. and learned Friend give my constituents that the Government are taking steps to reduce serious and violent crime?

[The Solicitor General]

My hon. Friend is right to raise this point. I warn anyone who engages in any type of offence against an emergency service worker that the law will deal with them harshly; the estimated conviction rate, based on the first cases to go through the courts, was 90%. It is right that we see uplifts in sentence for those who assault emergency service workers, who serve the public diligently and courageously.

[Eddie Hughes]

I thank the Minister for that answer. I think everybody in this House will endorse the idea that we should protect the protectors, so will he assure us that we will seek the maximum sentence when prosecuting these crimes?

[The Solicitor General]

Sentencing is a matter for the courts, but I agree with my hon. Friend in practice. A review sample revealed that nine in 10 assaults were against police officers. Almost all of those took place when the attacker was intoxicated by drink or drugs, and when they were being arrested or an unrelated offence was involved. Spitting was common. The violence perpetrated was wide-ranging, and included kicking, punching, headbutting, slapping and biting. The courts should and will come down on these offenders.

[Geraint Davies (Swansea West) (Lab/Co-op)]

9. What recent assessment he has made of the effect of the UK's departure from the EU on (a) legal protections on human rights and (b) the rule of law.

[The Solicitor General (Michael Ellis)]

The United Kingdom has a long tradition of ensuring that rights and liberties are protected domestically, fulfilling its international human rights obligations and upholding the rule of law. Leaving the European Union has not and will not change that.

[Geraint Davies]

The Solicitor General knows that our institutions of liberal democracy—the BBC, the judiciary and the civil service—are under attack. He is planning to water down the Human Rights Act. Will he give a solemn undertaking that we will not be withdrawing from the European convention on human rights, which was established 62 years ago, with the help of Winston Churchill, and nor will we withdraw from the Council of Europe?

[The Solicitor General]

The UK is committed to human rights. The fact is that our EU exit does not change that; the UK will continue to champion human rights, at home and abroad—it is part of who we are as a people. We practised human rights before the 1998 Act and we will continue to do so. We are committed to upholding the rule of law. The UK is a beacon in this area around the world, and leaving the EU does not change that.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

10. What recent discussions he has had with Cabinet colleagues on the correlation between the level of CPS resources and its ability to comply with its disclosure obligations.

[The Solicitor General (Michael Ellis)]

The proper disclosure of unused material is vital if there is to be a fair trial, which is in the interests of the complainant, the accused and the whole community. There has been unprecedented joint commitment and focus from the police and the CPS on finding solutions to the problem of getting disclosure right. The £85 million investment in the CPS, to which I have alluded, will enable the CPS to respond effectively to the expected increase in case load resulting from the recruitment of 20,000 new police officers.

[Justin Madders]

It is pretty clear that currently justice is not being done. Does the Solicitor General accept that that fund is simply not going to be enough to get the justice that this country deserves?

[The Solicitor General]

No, I do not accept that. In fact, the £85 million that was given to the CPS recently was the largest sum, pro rata, given to any Government Department. It is right that it is a priority for the Government to deal with criminal justice robustly, which is what the Government are going to do.

[Robert Largan (High Peak) (Con)]

11. What steps the CPS is taking to improve the prosecution rate for antisemitic hate crime.

[The Solicitor General (Michael Ellis)]

The proper disclosure of unused material is vital if there is to be a fair trial, and we will continue to focus on these issues, including on the issue of better meeting the disclosure obligations. We will work with investigators to pursue all reasonable lines of inquiry.

[Robert Largan]

The CPS does not currently publish figures on hate crime prosecution rates disaggregated by racial and religious bias. Will the Solicitor General join me in urging the CPS to make that data available so that we can judge its performance on antisemitism and properly tackle this most hateful form of crime?

[The Solicitor General]

The issue of antisemitism, which my hon. Friend rightly raises, is one of very considerable concern. Just last week, I visited the Community Security Trust in north London; the work that the trust does with the Jewish community to combat antisemitism is significant and very much appreciated. My hon. Friend is right that it is important that proper records are kept by the CPS in respect of these matters, and we are constantly discussing with the CPS how better it can review its statistics and keep these things properly in the mind of the general public.

Attorney General

Michael Ellis Excerpts

Monday 20th January 2020 Ministerial Corrections

[Peter Kyle (Hove) (Lab)]

Overall prosecutions have fallen from a quarter to only one in 10. Why is the CPS prosecuting so few people for hate crime? Why is the number of prosecutions falling, not rising? Is that not deterring people from reporting hate crime in the first place?

[The Solicitor General]

There is considerable evidence that people are particularly concerned about hate crime, and I do not think they are being put off making complaints to the police about that. We are constantly liaising at the Crown Prosecution Service with local police forces about their conduct, and we focus very much on getting results in instances of hate crime. As I have said, the number of convictions for hate crime has increased to its highest ever level.

[Official Report, 16 January 2020, Vol. 669, c. 1145.]

Letter of correction from the Solicitor General (Michael Ellis):

An error has been identified in the answer I gave to the hon. Member for Hove (Peter Kyle).

The correct answer should have been:

[The Solicitor General]

There is considerable evidence that people are particularly concerned about hate crime, and I do not think they are being put off making complaints to the police about that. We are constantly liaising at the Crown Prosecution Service with local police forces about their conduct, and we focus very much on getting results in instances of hate crime. As I have said, the conviction rate for hate crime has increased to its highest ever level.