Police, Crime, Sentencing and Courts Bill

Nick Thomas-Symonds Excerpts

2nd reading & 2nd reading - Day 2
Tuesday 16th March 2021 Commons Chamber

[Robert Buckland]

No, I will not give way.

In this Bill, we are making sure that those who commit offences such as rape spend more of their time in prison. We are ending Labour’s automatic halfway release provisions for people who receive sentences of over four years for offences such as rape and section 18 grievous bodily harm, and we are making sure that they serve two thirds of their term of imprisonment.

Turning to criminal damage, the relevant Act is now 50 years old, and for those 50 years the statutory maximum has been 10 years where the value of the damage is over £5,000. The changes in relation to criminal damage of memorials simply remove the previous restriction on the mode of trial and allow the full range of those powers to be used up to that maximum. We are simply giving the courts greater discretion as to how they sentence such offenders, taking into account the emotional and community impact of those offences.

We had, I thought, cross-party support on these measures. Indeed, back in the summer, the right hon. Member for Torfaen (Nick Thomas-Symonds) publicly backed our proposals. He said that he would work to support such efforts in Parliament. Now he is opposed. Why? Why the change? What is going on here? I will tell Members what is going on.

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

Will the Secretary of State give way?

[Robert Buckland]

No, I will not give way. I will explain what is going on, and then I will let the right hon. Gentleman in.

I would suggest that what has happened here is the result of a conflation with the covid regulations and their interaction with the right to protest, which the Labour party did not oppose—it voted in favour of those on occasions or did not oppose them. They have conflated those arguments with measures in the Bill that long predate what happened on the weekend—those regrettable scenes that we all saw and were upset and appalled by. They are now conflating those issues with the issues relating to this Bill. There is no relation between the two, and I would love to hear an explanation from the right hon. Gentleman.

[Nick Thomas-Symonds]

I am grateful to the Secretary of State for giving way. Last year, the Government spoke about additional protection for war memorials. We all understand the value of war memorials. What we did not agree to, and I have never agreed to, is locking up people for 10 years for damaging all memorials, including those of slave traders. That just sums up everything that is wrong with the Government’s approach. They could have worked with us. They did not. They have created division.

[Robert Buckland]

It is a very nice try from the right hon. Gentleman, for whom I have the utmost respect, but it does not cut the ice. We know what has happened here. It is a party in panic that is weaving, twisting and wobbling because its internal management problems are far more important than the public interest. That is the truth. Here we are, at the end of a two-day debate, with the Labour party, which I concede has a proud record in supporting the police and maintaining law and order, now voting against measures to strengthen sentencing for rapists, burglars, drug dealers, sex abusers, killer drivers. All of that is being opposed by the Labour party. Let me tell Labour Members the price of that for their party.

Domestic Abuse Bill

Nick Thomas-Symonds Excerpts

2nd reading & 2nd reading: House of Commons
Tuesday 28th April 2020 Commons Chamber

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

I would like to put on record my thanks to you, Mr Deputy Speaker, the Speaker, the House authorities and all staff for facilitating the sitting of the House in these most unusual circumstances.

I am grateful to the Lord Chancellor for his welcome. He and I have debated many times at the Dispatch Box in various roles, and I look forward to continuing to do so in future. I also look forward to debating with the Home Secretary when she is next in Parliament.

The Lord Chancellor was absolutely right to pay tribute to my hon. Friends the Members for Canterbury (Rosie Duffield) and for Bradford West (Naz Shah) for their very moving speeches in October, when the Bill was last before the House.

I welcome the Bill’s return to us today, in these extraordinary circumstances. The Opposition support it, and it is entirely right that, even in the midst of this crisis, we send the strongest possible message that tackling the appalling crime of domestic abuse remains a priority and that some of the urgently needed provisions in the Bill can progress.

However, it is not without bitter irony that we face the prospect of pushing forward with the Bill in such a constrained timeframe. After all, it was as far back as March 2018 when the Lord Chancellor’s predecessor but one, who no longer sits in this House, announced the initial consultation for the Bill, and it was promised long before that. The wait has been too long for those desperately needed provisions, and many others besides, that should be included in the Bill. I will come back to that.

The lockdown has changed patterns of crime. Over the weekend, the National Crime Agency announced that it had alerted the police to 1,300 potential child sexual abuse cases and that it had also recently arrested a British man possessing indecent images of children who was attempting to re-enter the UK from the Philippines. That paints a worrying picture and we must do all in our power to stop such abuses and prevent them from ever taking place. I pay tribute to the NCA, particularly its director general, Lynne Owens, who is leading the fight to tackle those heinous crimes.

Isolating victims from the support of others is what the perpetrators of domestic abuse often seek to do, so it is sadly no surprise that the coronavirus crisis and the lockdown required to deal with it have produced the conditions in which domestic abuse has sharply increased. At the end of last week, the Metropolitan police reported that in the six weeks up to 19 April, officers across London had made 14,093 arrests for domestic abuse offences—nearly 100 a day on average—and domestic abuse calls had risen by around a third. At the same time, the national domestic abuse helpline has experienced a 25% increase in calls and online requests for help.

Clearly, the warning signals of abuse are flashing red. We have been seeing and hearing those warnings from the domestic abuse sector since the start of the crisis. Asking people to stay at home when home might not be a safe place is clearly a huge challenge. Add to that the massive operational challenge that the need for social distancing creates for refuges and related services and the drop-off in charity funding, and it is clear that services for some of the most at-risk people face extraordinary difficulty. That is why I have been clear since becoming the shadow Home Secretary that the Government must take action on tackling domestic abuse and supporting the wider sector that deals with violence against women and girls.

Government action, such as the £2 million of funding for a helpline, is welcome, as is the You Are Not Alone public campaign, but it is not enough to provide the emergency support necessary. For a start, that £2 million needs to reach the frontline. We will work constructively and responsibly, and we have repeated the offer to discuss what can be done to fast-track that support.

One of my first priorities was to meet representatives from the sector with the shadow Domestic Violence and Safeguarding Minister. Many of those women have put themselves in harm’s way throughout their working lives to stand up for people who are facing abuse, and that is even more true in the middle of the current crisis. The message they gave me was absolutely clear: not only does the coronavirus crisis seem to be pushing up the rate of domestic abuse, but it is putting extraordinary pressure on the services that people turn to for help. Refuges face a massive challenge in keeping their doors open while sticking to the social distancing rules. We are asking people to do the right thing and stay at home, so it is only right that the country is there to support the people put at direct risk by those measures.

The Government have yet to engage fully, and the action does remain too slow. It is our intention to try to set out in Committee amendments that would guarantee rapid support for the domestic abuse charities from the £750 million fund that the Chancellor announced to support charity work. I would like to say from the outset that that in itself is an inadequate amount, and I urge the Chancellor to think again. The Lord Chancellor mentioned making allocations, but let me make this suggestion to him. First, a dedicated proportion of the £750 million should be ring-fenced for domestic abuse and the wider violence against women and girls sector. We say 10%, which is not unreasonable and would keep services going. Secondly, a system should be in place to fast-track that investment to the frontline before charities have to close their doors for being oversubscribed or unable to pay their staff. Thirdly, an element of support should be earmarked for specialist services such as BAME services run with and for migrant women, men who are at risk of or suffering domestic abuse, and specialist LGBTQ services.

I do not want to stand here and criticise the Government. I want the Minister to show the grip and urgency that the challenge requires and needs urgently. It cannot be right that vital services for the most at-risk people are in the position of turning people away because of a lack of funding. As I set out in my recent letter to the Home Secretary, there are a range of ways that the Government can help the sector, such as co-ordinating access to under-used existing accommodation; ensuring that support workers have access to PPE; providing technological support; and ensuring that women are not trapped in abusive situations because they have no recourse to public funds. That requires grip and a more joined-up cross-Government approach. We have seen that happening in the devolved Administrations, such as the £1.2 million fund created by the Welsh Government to purchase community accommodation for victims, to enable move-on accommodation and prevent lack of bed spaces in refuges or, indeed, to provide other accommodation when a refuge is not the right answer. In London, the Mayor has dedicated £4 million to the London community response fund, taking the total to £16 million to help the capital’s community and voluntary organisations. The lesson is that, with political will, these changes can be made. The need is now and the Government must respond to that challenge.

I turn to the Bill itself. It clearly is, as the Lord Chancellor set out, a step forward to have a statutory definition in the first clause of the Bill that also includes, in addition to violent and sexually threatening behaviour, controlling and coercive behaviour and other forms of abuse, including economic, psychological and emotional. I welcome the appointment of a domestic abuse commissioner and pay tribute to the work that Nicole Jacobs is doing as designate commissioner, alongside the work of the Victims’ Commissioner, Dame Vera Baird, and indeed the children’s commissioners across the UK. I welcome the domestic abuse protection orders and the notices, although I hope that they will be accompanied by support, training and resources our officers need. On the family courts, I agree with the Lord Chancellor that the prohibition of cross-examination of victims by perpetrators in person is welcome and long overdue, and I remember speaking on it myself in the Prisons and Courts Bill, which fell before the 2017 general election. I am glad the wait will not be even more protracted.

We will look to improve the Bill in Committee, and the sector must have its full say in giving evidence to the Committee. That process of scrutiny would be far more effective if we had more information before us. The Home Office has undertaken a review of how migrant women, especially those with no recourse to public funds, interact with domestic abuse provision. Having that review available to members of the Committee is very important.

The second issue on which there is a currently unpublished review is the family courts. Prior to the coronavirus crisis, it was thought that the family justice review panel would report this spring on how the family courts protect children and parents in cases of domestic abuse and other serious offences. Again, having that available would greatly enhance the Committee stage.

A victim is a victim. We will press the Government on protections for disabled victims. We cannot tolerate a situation where victims with insecure migrant status are not only prevented by that from coming forward, but actually have it used against them by someone abusing them. That is why, as I have argued, the Government should suspend the system of no recourse to public funds during the coronavirus crisis, so that victims can get the support they need, not only in their interests but in all our interests in this public health emergency.

In Committee, we will also press the Government on a clear statutory duty on public authorities in England and Wales to commission specialist domestic abuse support and services for all people affected by domestic abuse, regardless of status. That should include a duty on the Secretary of State to provide sufficient funding. The duty should be to all who are affected by domestic abuse, including those with insecure immigration status, children and young people. Let us make sure, too, that there are perpetrator programmes with proper quality assurance as to their standard.

We will also push the Government on measures on post-separation abuse. In fact, it is often the case that when perpetrators lose control of the situation, their behaviour becomes even more extreme and the victims require greater protection. I say to the Lord Chancellor that although there are existing laws, such as the Protection from Harassment Act 1997, more is required to be done to tackle the threat to people even after the particular relationship has ended. We will press that in Committee.

The Bill contains a series of measures that will clearly have wide support across the House. I pay tribute to all those people who worked on it, particularly in the last Parliament, including, on these Benches, my hon. Friend the Member for Swansea East (Carolyn Harris), who pushed it forward with her characteristic passion and determination. She is not sat in the House today, but I am sure she will be watching at home. She should have our thanks for the way that she conducted herself.

I implore the Government to keep an open mind in Committee as to how the Bill can be improved. If they decide that they want to ignore all the suggestions for improvement, that will be an extraordinarily grave mistake. The Bill is a real opportunity to consensually make vital changes in the interests of victims and potential victims up and down the country.

We should remember, too, that many services that we rely on to respond to the crisis, and to support women and girls at risk of violence, have faced a toxic cocktail of cuts to policing and preventive services for a decade. We did not go into the crisis with the resilience that we would all have hoped for.

I conclude by giving my deepest thanks to the frontline workers who are doing so much to keep our communities safe and who are working especially hard to protect those most at risk. They deserve all our gratitude and respect for all that they do, putting themselves at risk to keep us all safe.

Desperate as these circumstances are, I say to anyone who is at home and afraid: they are not alone. Since taking up this role, I have made it my priority to speak to senior and frontline officers, who all assured me that tackling domestic abuse remains exactly where it should be—right at the top of their priority list—and that anyone who feels that they need their support should reach out. The message that should go out from this House today is that they are not alone.

[Mr Deputy Speaker (Mr Nigel Evans)]

As you can imagine, a lot of people have put in to speak in this debate, so we are introducing a five-minute limit, apart from for the SNP Front-Bench spokesperson. Those contributing from outside the Chamber will not be able to see the clock, so I hope they have their own timers visible to them, because we have to be strict in order to get as many people in as we possibly can. I call Theresa May.

Terrorist Offenders (Restriction of Early Release) Bill

Nick Thomas-Symonds Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 12th February 2020 Commons Chamber

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

I am grateful to the Justice Secretary for his briefing last week and for his opening remarks, and to the Under-Secretary of State for Justice, the hon. Member for Croydon South (Chris Philp), who has been keeping me updated in recent days.

This Bill follows the awful terrorist atrocities first at Fishmongers’ Hall on 30 November and more recently in Streatham. My thoughts, and I am sure those of all Members across the House, go out to the victims of these terrible attacks and to their families and friends, and we thank the emergency services who responded so quickly.

Labour Members support the Parole Board’s involvement in release decisions. If this Bill is not passed and rushed through its stages over the next couple of weeks, terrorist prisoners will be on our streets, without any assessment of risk or dangerousness by the Parole Board. That does not leave the House in the easiest of positions, but it is the reality of the situation before us. For the Bill to be durable and workable, it must not simply amount to a delay in confronting the problem; it will also require a relentless focus on, and investment in, the most effective de-radicalisation programmes in our prisons.

[Sir Desmond Swayne]

One of the most effective de-radicalisation programmes is that run by the Saudis, but it takes a long time. Is the hon. Gentleman satisfied that sentences are long enough to accommodate a successful programme?

[Nick Thomas-Symonds]

I took part in a long debate on sentencing in the last Parliament with the then Minister of State for Security and Economic Crime, now the Secretary of State for Defence, and a number of sentences were increased. In her intervention on the Justice Secretary, the former Prime Minister pointed out —very fairly, I thought—that there has been an issue with the success of de-radicalisation programmes in recent years. Length of a sentence is one matter, but, whatever the length, the programme must be targeted and effective—I will come on to that point in a moment.

We are here to discuss emergency legislation, but there is also an emergency in resources. The Leader of the House indicated yesterday that the Treasury has approved additional resources for the extra time that prisoners will spend in custody as a consequence of the Bill, as well as for the Parole Board. Clearly, however, there must also be a specific and dramatic increase in resources to tackle extremism in our prisons.

But this is not just about resources—my hon. Friend the Member for Stretford and Urmston (Kate Green) made a point about process and expertise, and she is absolutely right—and a strategic approach from the top will be required.

The Justice Secretary made it clear that there is no need for derogation from the European convention on human rights, and he set out the Government’s legal position on article 7. Labour Members firmly believe that we can tackle terrorism and proudly remain signatories to the European convention on human rights. In our view, to leave that convention and join Belarus as the only European non-signatory would send a terrible signal to the rest of the world. We should never sacrifice the values that we are defending in the fight against terrorism and hatred.

Those who perpetrate hatred and violence are responsible for their actions, but it is for the Government to do everything they can to keep our streets safe and minimise the risk of something like this ever happening again. The House is therefore entitled to ask why we have ended up requiring this Bill to be passed via emergency legislation. Automatic early release is hardly new. It has been part of our system for many years, and could already have been dealt with by a Government who took a more strategic approach.

There have been a number of warning signals over the past decade. In his opening remarks, the Justice Secretary mentioned Ian Acheson, a former prison governor who led a review of Islamist extremism in our prisons, probation and youth justice system, which was published in August 2016. Mr Acheson said:

“What we found was so shockingly bad that I had to agree to the language in the original report being toned down…There were serious deficiencies in almost every aspect of the management of terrorist offenders through the system…It was a shambles.”

Mr Acheson proposed 69 recommendations that, according to the Justice Secretary when speaking to the media over the weekend, have been consolidated into a total of 11, eight of which are being implemented. However, in a newspaper article last Thursday Mr Acheson said:

“As part of my review of prison extremism, I made a great number of recommendations that specifically related to a tactical response to a terrorist incident in prison where staff were targeted. I have no way of knowing if or how many were implemented as none made it into the response published by the Ministry of Justice.”

That was only days ago. I do not know whether the Justice Secretary has met Mr Acheson since last Thursday—[Interruption.] I am happy for him to intervene.

[Robert Buckland]

The hon. Gentleman makes an important point. I have not met Mr Acheson since last Thursday, but I have met him. Indeed, I took part in a documentary that he produced for Radio 4 a few weeks ago, before the latest attack. His engagement has been valued. I will not go into the precise circumstances in which the report was consolidated, because in essence it contained some sensitive matters that we all understood could not be published.

The hon. Gentleman is right to talk about 2016. We accepted what Mr Acheson said, but things have moved on a long way since then, and the problems that were identified are being tackled directly. We accept that there is still more to be done, but the hon. Gentleman will be glad to know that we have moved on in the four years since that report.

[Nick Thomas-Symonds]

I will come on to whether things have moved on in a moment when I explore what the Chief Inspector of Prisons says about that issue. Last Thursday, however—only days ago—Mr Acheson was clearly unsure of the Government’s position. I hear what the Justice Secretary says about what is in the public domain, which is entirely appropriate. One would hope, however, that someone who led a review for the Government would know four years later whether specific recommendations had been acted on. I also accept what the Justice Secretary says about appearing in a documentary, but I strongly suggest that he meet Mr Acheson fairly urgently, to discuss those matters about which Mr Acheson is not sure, so that they can be cleared up.

[Robert Buckland]

I should have added that I have offered Mr Acheson a full briefing from Her Majesty’s Prison and Probation Service on those issues, and it has been accepted.

[Nick Thomas-Symonds]

I am pleased to hear that, and I hope we will never again be in a situation where someone who led a review is not aware of what is going on years later. That simply cannot and should not happen, as I am sure the Justice Secretary would agree.

There are concerns about the Ministry of Justice listening, and the extent to which justice has been a priority for the Government over the past decade. The coalition Government chose not to make the Ministry of Justice a protected Department when they implemented spending cuts That led to 40% cuts over the past decade, including to the prisons that today we expect to play a vital role in offender management. We know that 21,000 police officers disappeared from our streets, and prison officer numbers have been slashed. There are currently 18,912 front-line prison officers, which is not yet back to 2010 levels. That loss of prison officers has not just reduced the capacity of prisons to deal with rehabilitation; it also means that years of experience of working in challenging environments in our prisons have been lost.

In 2019, 35% of prison officers had been in post for less than two years, compared with just 7% in 2010. I do not mean that those officers are not doing their best in difficult circumstances, but the Government needlessly threw away valuable experience in our prisons.

[Mr Khalid Mahmood (Birmingham, Perry Barr) (Lab)]

Does my hon. Friend agree that that lack of prison officers, the privatisation of some of our prisons, and having those young officers, has led to problems in Her Majesty’s Prison Birmingham, which has seen a number of riots over the past couple of years? It adds more to the Treasury’s costs if we have to take away people with experience and later bring them back.

[Nick Thomas-Symonds]

My hon. Friend speaks with great authority about HMP Birmingham, and he is right to identify that if prisons are run in such a way there will be consequences because the time available for meaningful activity is reduced.

The Justice Secretary talked in the media at the weekend about improvements in our justice system since Mr Acheson’s report. He repeated that in his speech and he has repeated it in an intervention a moment or two ago. I therefore thought I would compare what the Justice Secretary is saying with the views of the independent chief inspector of prisons. The latest annual report from Peter Clarke states that

“far too many of our jails have been plagued by drugs, violence, appalling living conditions and a lack of access to meaningful rehabilitative activity.”

That should be a wake-up call to the Government. Mr Clarke went on to say that

“levels of self-harm were disturbingly high and self-inflicted deaths tragically increased by nearly one-fifth on the previous year.”

That is no way for the Prison Service to be run and things must change.

There is also, if I may say so, an issue at the Ministry of Justice with the Government failing to provide it with stable leadership. The right hon. and learned Gentleman is the seventh Justice Secretary since 2010. Of those seven, five have served for 18 months or less. The role of Lord Chancellor should have been respected and not been subject to a revolving door. No wonder there is such a lack of direction and no wonder there is no long-term planning. Justice Secretaries are simply not in post long enough. There are even indications from 10 Downing Street that half the Cabinet could be out by Friday.

I say in all sincerity to the right hon. and learned Gentleman that I very much hope he survives in this role—I hope I have not jinxed him by saying that; I could have just ruined his Friday—because there is an enormous job to do. There are 224 terrorist prisoners in England and Wales, of whom 173 have been assessed as having extreme Islamist views. We also know that there is a growing threat from far-right terrorism. If we want properly to manage the risk of terrorist offenders, we need the most effective targeted de-radicalisation programmes to be delivered by staff working in the best conditions we can provide for them.

[Karin Smyth (Bristol South) (Lab)]

One area has not been mentioned. When I took part in the police service parliamentary scheme and spent some time with the counter-terrorism units, the one area they highlighted was working on the ground with mental health resources in our communities. That risk decision, the decision at community level about someone’s mental capacity and radicalisation, is really important when we look at resources. The cuts to our mental health services are having an impact on this area.

[Nick Thomas-Symonds]

My hon. Friend is absolutely right. I think we sometimes see things in isolation, but cuts to many other services have also had an impact, which the Government need to take into account. Indeed, when we talk about conditions for our prison officers to work in, a third of our prisons were built in the Victoria era. There is a £900 million maintenance backlog and a desperate need for new investment.

[Sir William Cash]

On mental disturbance, does the hon. Gentleman accept that there are circumstances in which the principle of mens rea may not apply simply because the person in question, for a variety of reasons, some of which may be drug-affected or intrinsic, is incapable of making an act within the framework of mens rea? In those circumstances, should we perhaps be thinking further down the line about what kind of containment people need to restrain them from performing such murderous acts?

[Nick Thomas-Symonds]

A number of issues about mens rea, which is an essential element of committing a criminal offence, have been decided before the courts. However, elements of our law can already deal with those who suffer from severe mental health problems, and they can be used and operated appropriately on a multi-agency basis.

[Dr Julian Lewis]

I take this opportunity to reiterate my previous intervention. The suspicion is that there are gravely mentally ill people who are in prison when they ought to be treated as if they are criminally insane and held in a secure psychiatric unit. The concern is that people are being treated as terrorists when they are clearly mad, simply because they have picked up some smattering of something that passes for a religious motivation.

[Nick Thomas-Symonds]

Where I can agree to a degree is that I certainly accept that there are people with mental health problems in prison who, frankly, should not be. The right hon. Gentleman refers, I think, to secure psychiatric units, where there is also a shortage of places. That is another issue that the Government need to accept on the basis of the past 10 years.

I heard what the Justice Secretary said about specialist officers, particularly those in de-radicalisation programmes, but we are tolerating a rise in physical attacks on our prison staff. That cannot be fair to them and it will not produce a constructive environment in our prisons. From September 2018-19, there were 33,222 assaults, including 23,592 prisoner-on-prisoner assaults and 10,059 assaults on staff. Levels of self-harm were also the highest ever recorded.

The Bill, I am sure the Justice Secretary will argue, will deal with the immediate crisis of the next few weeks, but he must plan ahead. The crisis in our criminal justice system does not end with our prisons. We also need the best possible probation services and the best possible supervision. In 2014, the Government part-privatised the probation service. I do not think it is unfair to say that it was an absolute disaster. The Government had more than 150,000 people supervised by private community rehabilitation companies and just left the high-risk offenders to be managed by the National Probation Service. The chief inspector of probation, Dame Glenys Stacey, said last year:

“The system which sees private firms monitor criminals serving community sentences is ‘irredeemably flawed’”.

She is right. No wonder the right hon. and learned Gentleman’s predecessor had to announce last year that the supervision of all offenders on probation in England and Wales was being put back into the public sector.

[Sir John Hayes]

The hon. Gentleman is making a point about capacity, and that seems to be reasonable. Early release—scores of convicted terrorists have been released early since 2013—adds to demand on capacity and he is making a case that we should address that. On that basis, I am sure he would want to support the Secretary of State in taking that pressure away, building morale and, as he described, allowing the police to exercise capacity more effectively.

[Nick Thomas-Symonds]

Well, yes. I have made absolutely clear my support for the measures before us today. My point is simply this: today we will deal with an immediate crisis. What the Bill will not do is deal with the broader and deeper problems we have that will need to be dealt with in the months and years ahead. The National Audit Office announced that the botched part-privatisation of probation cost the taxpayer nearly £500 million. Frankly, it is time for good sense and consistency in policy making at the Ministry of Justice.

The independent review of the Prevent programme, which I secured in the previous Parliament—I think I debated it with the right hon. Member for South Holland and The Deepings (Sir John Hayes)—has been announced, but there is no reviewer. We are now a year from the point at which the Bill that he and I debated received Royal Assent. Lord Carlile was appointed but resigned before Christmas, because he had already expressed views on the programme, and the Government have hardly shown urgency in appointing a replacement. It is high time that they did. I appreciate that that is not the responsibility of the Justice Secretary, but I am sure he will pass on the message to his Cabinet colleagues that the reviewer must be appointed and the review must begin, take place and make recommendations. Today really must be a day when that focus on rehabilitation comes and we turn the page away from a decade of problems in our criminal justice system.

One of the recommendations made by Mr Acheson was for an independent adviser on counter-terrorism in prisons. I would go further and press the Justice Secretary to provide external scrutiny and assessment of the deradicalisation programmes across our prison estate. In that way, this House can regularly assess the position, and we will not again be in a situation where we are taken by surprise or are responding on the hoof. We cannot tolerate our prisons becoming breeding grounds for extremism, and we need to ask searching questions.

I hope that this emergency legislation will pass without a Division. Alongside it, I hope that the Government will now invest in the very best expertise available in counter-extremism and tackle the crisis in our prisons. It is only by doing that that the Government can truly say they are doing all they can to keep our streets safe, and in that we will be holding them to account.

--- Later in debate ---

[Nick Thomas-Symonds]

With the leave of the House, Madam Deputy Speaker, I shall wind up the debate, having also opened it.

This has been a wide-ranging debate on the most serious of issues. We have a duty, across the House, to reduce the risk of incidents such as the one in Streatham happening again in the future. We can never eliminate that risk, but we must certainly put in place all reasonable and proportionate measures to reduce it. We must never sacrifice our values—the very values that this Parliament seeks to protect—in tackling these issues. The European convention on human rights and our own country’s common law, which has evolved over centuries, form the framework in which we must act.

I am grateful to Members in all parts of the House for their contributions to the debate, including the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who chairs the Justice Committee, and the hon. Member for East Lothian (Kenny MacAskill), who, as a former Minister north of the border, brought his own expertise to the debate. I also commend the hon. Member for Crewe and Nantwich (Dr Mullan) for his maiden speech. He paid tribute, appropriately, to his predecessor, Laura Smith—who was certainly a great champion for the constituency during her time here—and mentioned the experience on which she drew as a primary school teacher. I think that, as a true Welsh valleys man, given the choice between the worm-charming championship and watching Crew and Nantwich rugby club, I would go for the rugby club every time, but I do wish the worm-charmers well in their competition. I also thought that the hon. Gentleman spoke very movingly about the struggle that many people have with identity, and I look forward to hearing more contributions from him during the time that he will have in the House in the current Parliament.

I thank my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), who spoke with her usual authority, including on the oversight of deradicalisation programmes, which will be vital in the years ahead. I also thank the hon. Members for Stone (Sir William Cash) and for Belfast East (Gavin Robinson) and the right hon. Member for South Holland and The Deepings (Sir John Hayes) for their contributions. My hon. Friend the Member for Birmingham, Perry Barr (Mr Mahmood) spoke powerfully about the need for training and expertise for those who are going into prisons and providing the deradicalisation programmes. I also pay tribute to his extraordinary work in this area. I was grateful, too, for the contributions from the hon. Members for Eastleigh (Paul Holmes), for St Albans (Daisy Cooper), for North Norfolk (Duncan Baker), for Isle of Wight (Bob Seely), for Stoke-on-Trent North (Jonathan Gullis), for Bury North (James Daly), for Milton Keynes North (Ben Everitt) and for Bishop Auckland (Dehenna Davison). We have had a good-natured and constructive debate in the Chamber this afternoon.

As I said in my opening remarks, we really need a relentless focus on the treatment of extremism in our jails. I am sure that, in a few minutes’ time, this particular piece of legislation will have its Second Reading in this House, but we also need to get the wider issues around this right. We need sufficient numbers of prison officers who are properly paid and supported to work in a constructive environment. We need a prison estate that is fit for purpose. We also have to tackle the problem of increased violence against our prison staff. We cannot continue to tolerate the current level of attacks on them. Many Members have spoken about the awful atrocities at Fishmongers’ Hall and in Streatham, but if there is any doubt about the issue of prison staff, let us not forget that on 9 January this year there was an attack on prison staff at HMP Whitemoor by two inmates with bladed articles. That is a reminder of the extent to which we ask our prison staff to take risks on a daily basis.

We need the very best regime to tackle extremism in our prisons. The best expertise, appropriate resources and trained staff are all required. We need a programme to prevent people from falling into a life of terror and hatred in the first place. It must be as effective as it can be, and the Government need, in speedy fashion, to get the independent review of the Prevent programme under way with a reviewer in place. We need stable leadership and a Justice Secretary who remains in place long enough to make a lasting mark on the Department. I hope this Prime Minister will not be chopping and changing his Justice Secretary at every opportunity, so that we can put in place the strategy and long-term planning that are absolutely required in the Department at the moment.

Keeping the public safe is the central duty of Government. We need consistent evidence-based policy making, and even in a fast changing situation we should never lose sight of the evidence before us. What counts in this sphere has to be what works. I hope that this emergency legislation will now reach the statute book in a timely fashion to avert the immediate crisis, but it should mark a beginning, not an end. This should be the beginning of a wider debate on how we tackle extremism in our prisons, and of a real commitment of resources from the Government to secure the very best expertise available in counter-extremism. That is what we must see in the months ahead. The public deserve no less.

Domestic Abuse Bill

Nick Thomas-Symonds Excerpts

Wednesday 2nd October 2019 Commons Chamber

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

It is a privilege to reply to the debate this evening, which has shown the House of Commons at its very best. I wish to start by paying tribute to the right hon. Member for Maidenhead (Mrs May), who made what I believe to have been her first speech from the Back Benches since leaving office as Prime Minister. She set the tone of the debate and said that domestic violence was not something that should ever be viewed as being “behind closed doors”. That attitude was prevalent in the past and we must do all we can to ensure that it is not prevalent in the future.

I pay tribute to my hon. Friend the Member for Canterbury (Rosie Duffield) for making a courageous and extraordinarily moving speech. Not only did it have a considerable impact on everyone in the House who heard it, but it will have an extraordinary impact on everyone outside this House and give them extraordinary confidence about speaking out in the dignified way she has done today.

I also pay tribute to my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), and to the hon. Member for Wyre Forest (Mark Garnier), for their remarks about the harrowing Natalie Connolly case. I am sure that amendments will be tabled in Committee that relate to the issues that were identified in that case.

I am grateful to my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) for her remarks about serial perpetrators; to my hon. Friend the Member for Bristol West (Thangam Debbonaire), who drew on her experience of working in the domestic violence field in the past; to my hon. Friend the Member for Darlington (Jenny Chapman), who spoke very well about the Bill’s potential impact; and to my hon. Friend the Member for Hove (Peter Kyle), who spoke very well about an issue to which I shall return—the cross-examination of victims in the family courts by their perpetrator.

My hon. Friend the Member for Newport West (Ruth Jones) spoke about the various people who have had an impact on the Bill’s coming into being. I pay tribute to my hon. Friend the Member for Bradford West (Naz Shah) for her extraordinarily moving contribution, both about her mother and her experience as a survivor. Her speech, too, will reverberate far beyond this House. Her achievements are an inspiration to others.

I thank my hon. Friend the Member for Kingston upon Hull North (Diana Johnson), who spoke about controlling behaviour; my hon. Friend the Member for Nottingham North (Alex Norris), who spoke about refuge funding; my hon. Friend the Member for Batley and Spen (Tracy Brabin), who also mentioned the need for reform of the family courts; my hon. Friend the Member for Leigh (Jo Platt), who spoke very movingly about the experiences of Leanne and Nikita; my hon. Friend the Member for Birmingham, Yardley (Jess Phillips), not just for her speech but for all her extraordinary work in this area; my hon. Friend the Member for Stretford and Urmston (Kate Green), who spoke very movingly about experiences in prison; my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams), who talked about the importance of a whole-society approach; my hon. Friend the Member for Heywood and Middleton (Liz McInnes), who spoke about the impact of domestic violence on children, and my hon. Friend the Member for High Peak (Ruth George), who spoke about reform of universal credit. It was fitting that my hon. Friend the Member for Hornsey and Wood Green (Catherine West) ended with a tribute to charities in this area, who do so much across all our constituencies to make lives better.

The Bill has produced a remarkable degree of welcome consensus in the House today, but it will clearly need work in Committee. I will start with the definition of domestic violence. I agree with the former Prime Minister, who said that it was clearly a step forward to have a statutory definition. Reading clause 1, though, it seems to me not to include abuse perpetrated by a person in a position of trust. I believe the hon. Member for South Suffolk (James Cartlidge) mentioned an example of it, but there may be other examples in the domestic context that are not quite covered by clause 1. I ask the Minister to go away and look at that issue. Hon. Members across the House have picked up other issues, including the impact on children and the gendered nature and impact of domestic abuse, that need to be considered as the Bill progresses.

I welcome the appointment of a Domestic Abuse Commissioner, although I consider that person should be full time. The commissioner must obviously have the powers to provide the strategic oversight that we need, and to hold public authorities in this area properly to account.

I welcome the domestic abuse protection notices and domestic abuse protection orders, and the extension of special measures for complainants mentioned both by the Lord Chancellor and the Chair of the Justice Committee in their opening speeches. I consider that the domestic violence disclosure scheme should be on a statutory footing, and I am pleased to see that in clause 55. As many hon. Members have mentioned, one of the issues with domestic violence is that it is often the victim who ends up homeless. I welcome in the Bill the suggestion of new secure lifetime tenancies in England, which is a step forward.

I return, though, to the issue of cross-examination in the family courts. It has been the case for some time in the criminal courts that perpetrators of domestic abuse could not cross-examine their victims in person. It is high time that that protection was extended to the family courts. However, as I think the Joint Committee picked up, it does not seem to be mandatory; it still seems to be at the discretion of the court. The last thing we would need is for that to be inconsistently applied; it should be consistently applied across the system. That point that has been picked up already.

There are other issues, of course, that are not a part of the Bill as it currently stands. There is, for example, no statutory duty to fund refuges, but we all know that refuges are in dire need of more funds. There also needs to be a whole look across Government at other policies that have a huge impact in this area, including, for example, to whom universal credit is paid and the five-week wait, just to mention two particular issues that clearly have an enormous impact on domestic violence that the Government need to consider.

My hon. Friend the Member for Hampstead and Kilburn (Tulip Siddiq), in an intervention, mentioned migrant women, which is a very important issue. They are too often denied the chance to apply for indefinite leave to remain and prevented from accessing the public funds and the services they require. I urge the Government once again to go away and look at that situation.

This Bill before us today clearly contains a series of measures that will be welcomed across the House, but I urge the Government to keep an open mind in Committee about various issues that will arise in the course of this Bill. If the Government are willing to be constructive, we can, together, make it a much better Bill. I do pay tribute to those on the Government Front Bench and, indeed, to my hon. Friend the Member for Swansea East (Carolyn Harris) for the work that they have done so far. I urge them to continue working together to make this a truly historic Bill of which we can all be proud.

Automatism as a Legal Defence

Nick Thomas-Symonds Excerpts

Tuesday 14th May 2019 Westminster Hall

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

It is, as always, a pleasure to serve under you as Chair, Mr Owen. It is also a pleasure to follow the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald); I congratulate him on his speech.

I also refer at the outset to my entry in the Register of Members’ Financial Interests. I am a non-practising barrister now at Civitas Law in Cardiff. I was a practising barrister for a number of years before entering the House, but I practised in criminal law only for a few years at the start of my career at the Bar.

I also warmly congratulate my hon. Friend the Member for Huddersfield (Mr Sheerman) on his opening speech and on bringing this matter before the House. Although they are no longer in their places, I am grateful to my hon. Friend the Member for Leeds North West (Alex Sobel) and the hon. Member for Cheltenham (Alex Chalk) for their contributions to the debate.

I entirely agree with my hon. Friend the Member for Huddersfield about the utility of Westminster Hall, particularly for a debate on an issue such as this, which is very important but none the less quite technical in terms of how we deal with it. I share my hon. Friend’s passion for road safety, and he spoke movingly of a knock on the door bringing extremely bad news about a close family member.

My hon. Friend is also entirely right to say that the automatism defence is little understood, and I think that it is indicative that it has not even been mentioned in Hansard since 2008, which shows how long this House and this Parliament have gone without considering it.

On the issue of statistics, in the past I have argued about statistics in relation to a number of different offences. It is clearly an issue for the Crown Prosecution Service, superintended of course by the Law Officers, to determine what statistics are collected, when they are collected and for which particular offences. Particularly in cases where there are clearly victims who will be extraordinarily affected by the events, it is important that it is transparent as to what has happened at each stage of the process. If something does not reach prosecution in the first place, why does it not reach prosecution? There should be a full explanation. If the matter is discontinued at some stage between charge and trial, why is that? If there is a not guilty verdict in the end, why has that happened? Communication to victims throughout the process is vital.

[Mr Sheerman]

On that point, I said that in Sweden there is an absolutely high-class specialist unit that examines every death on the road, whereas in England and Wales the fact is that there is only very patchy expertise when it comes to investigating such a death. A defence of automatism is quite an unusual thing to happen in a police area and the competences required to investigate it are very specific indeed. Does my hon. Friend agree that, given some of the recent cuts in the police of this country, that aspect of the investigative side of affairs has been badly hit?

[Nick Thomas-Symonds]

My hon. Friend is absolutely right to draw attention to the issue of cuts in police officers affecting things right across the board. Clearly, there are different levels of investigation. For example, if there is an injury in a road traffic accident, that triggers a certain level of investigation, and similarly if there is a death. However, in a sense, the fact that we do not have a body equivalent to the one in Sweden underlines the point that I am making about the need for transparency throughout the process.

By the way, I will also add, regarding the decisions made by prosecutors, that every prosecutor has to apply the code for Crown prosecutors. First, is there a realistic prospect of conviction? Secondly, is it in the public interest to bring a prosecution? If that process is not happening, that needs to be brought to light, and the superintendence by the Law Officers is absolutely vital to ensure that, right through the system, that process is happening. If there is anywhere where it is not happening, that should not be the case.

While I am on the subject of the Crown Prosecution Service, I will refer to the sleepwalking cases that my hon. Friend mentioned. The CPS has recently issued legal guidance about the sleepwalking cases, which should be available to everyone involved in the area, including the prosecutors, on how to challenge the automatism defence appropriately before a judge, if it is raised. If the defence uses expert evidence, which it is likely to, the CPS says this to its prosecuting lawyers:

“Such evidence should always be analysed by an expert for the prosecution.”

That is what we would expect to happen. Indeed, as long ago as 1958, Mr Justice Devlin, in the case of Hill v. Baxter, said:

“I do not doubt that there are genuine cases of automatism, but I do not see how the layman can safely attempt, without the help of some medical or scientific evidence, to distinguish the genuine from the fraudulent.”

We would expect there to be experts on both sides in such a case that came before the criminal courts, and for many of the reasons that my hon. Friend outlined during his fine speech that is how it should be, and I would hope to see that in the criminal courts.

My hon. Friend also referred to the comments of the Law Commission on this issue, and I will come on to them with the Minister. Actually, the Law Commission’s document was very useful, in terms of the need for reform in this area. Looking at the defence of insanity—I appreciate that there is a distinction between non-insane and insane automatism, and I will come to that in a moment—in essence, it goes back to 1843. Frankly, it has not changed much since then, which is a real issue.

The Law Commission accepted the principle of the automatism defence, but it made a substantial number of criticisms of it, regarding what has to be done to bring it up to date and make it fit for the modern day. The Law Commission said:

“We take the view that it is unjust to hold people criminally responsible when they could not have avoided committing the alleged crime, through no fault of their own. Put another way, a person should be exempted from criminal responsibility if he or she totally lacked capacity to conform to the relevant law.”

Of course, that excludes situations where the automatism is self-induced, or situations in which, given what someone did, it was foreseeable that they could end up in a particular state. It excludes that, and so it should, because the defence is very narrow in what it refers to.

The Law Commission has made many important criticisms of the law as it stands. First is the criticism that it is technically deficient. We are distinguishing between the mental and physical elements of the crime, but that is not always possible. It is not easy to see possessing something that is illegal to possess purely as an act; there must be the intent to hold on to it, and it is not easy to make that distinction. Secondly, has the law really kept up with developments in medicine, psychology and psychiatry in how we classify mental illness? No, it has not. It has not changed substantially for more than 150 years. Bizarrely as well, this is not available in magistrates court. Why should it be that the defence is applicable in our Crown courts but not in magistrates? That is clearly a loophole that needs to be dealt with.

There is an argument that defendants can find themselves acquitted but stigmatised because of the word “insanity”, which is still used as it is central to the defence. In addition, and as was at the heart of my hon. Friend’s speech, how does the defence sit with the victim’s human rights? Like everyone else, the victim in these cases is entitled to the right to life—article 2 of the Human Rights Act 1998—and where there has been a tragic death that article has been clearly violated.

There is also article 3 on inhuman and degrading treatment, and article 8 on the right to a private life. We really must ensure that the defence, as it is framed today with appropriate safeguards, is compatible with the victim’s human rights. One can understand the situation in the road traffic incidents described by my hon. Friend, where either automatism has ended up, it seems, with prosecutors not seeing the case as passing the evidence test or something has happened further down the line, with victims not being aware of why that had happened. That is a real issue.

[Mr Sheerman]

May I make a cynical point? A road traffic academic expert pointed out to me that it is ironic that the number of cases in which people plead automatism has risen almost exactly in parallel with the use of mobile phones in cars.

[Nick Thomas-Symonds]

There may well be a number of reasons for that; we may simply have more offences. However, I entirely take on board my hon. Friend’s point, and it would indeed reinforce the need for an understanding and an awareness of the defence and why certain cases are not being proceeded with or are not successful.

The other point I make to the Minister is about Parliament as it is at the moment. The Law Commission has papers about reform of the law—not just on automatism, but in many other areas too—that would not be partisan and would be likely to command widespread support. We have not had a vote in Parliament for the past month, so it seems that at this point in our parliamentary history, and when the Law Commission has made recommendations, there is room in the timetable for laws to be introduced. If this situation of so little substantive business continues, real thought ought to be given in Government to at least trying to use the time productively on matters that, while perhaps not partisan, would make a big difference to the lives of our constituents.

[Albert Owen (in the Chair)]

I remind the Minister that he might want to allow the mover of the motion to wind up the debate.

--- Later in debate ---

[Edward Argar]

I will come back shortly to the two tests that the shadow Solicitor General mentioned. On the statistics point, it appears that automatism is rarely used as a successful defence, and that sane automatism, which is what most people assume that to be, is extremely rare because it is very hard to prove. However, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) also made the point about the statistics. It is a matter for the CPS, but we can take back to that service and to other agencies the question of examining whether there are better ways to identify trends and the statistical evidence bases underlying them. I do not have an answer now, but that is something we can take away and look into.

[Nick Thomas-Symonds]

This is an issue that I have raised before in other contexts. Sometimes we are told by the CPS that it has to look through the file of each case to pick up certain data, but in such cases, particularly where there are deaths, as there might be in a road traffic case, it would be useful to look at what data is collected and reviewed. I hope that the Minister will pass that on to the law officers who superintend the CPS.

[Edward Argar]

I am happy to do that, not least because in her previous ministerial role the now Solicitor General would have been taking this debate. I am sure that having prepared for it in advance, as she usually did, she will be well aware of the issue, and I am happy to raise it with her.

The distinction between the two types of automatism is important for reasons other than the verdicts. In insane automatism, the burden of proof is on the defendant to show that he or she did not know the nature of the act committed. However, in the case of non-insane automatism, the burden remains on the prosecution to satisfy a jury beyond reasonable doubt that the defendant has not had a total loss of control and is, therefore, guilty of the offence.

To illustrate that further, there is the example of incidents that occur as the result of hypo or hyperglycaemia. If a defendant argues that the act was caused by the administration of insulin leading to hypoglycaemia, that is an external factor and the defendant will be acquitted unless the prosecution can show this to be untrue. However, if the defendant argues that the incident was due to diabetes causing excessive blood sugar hyperglycaemia, that would be an internal factor and the onus would be on the defendant to prove, on the balance of probabilities supported by medical evidence, that he or she was not guilty by reason of insanity.

The cause of automatism can understandably be confusing to many. I will give an example that is possibly a reflection of how the law is interpreted and the difference between what is, in legal terms, the interpretation and what anyone else might read it as. For example, epilepsy is a disease of the mind. When an epileptic seizure results in an assault, for instance, a successful defence would be an insanity verdict. Of course, most people would not consider that an epileptic seizure amounted to insanity, but that is how the law would be interpreted in a narrow, legal context.

Acts committed while suffering from concussion, sleepwalking—which we have touched on—amnesia, and even post-traumatic stress disorder may amount to an automatism defence. As alluded to earlier, such cases rely heavily on medical evidence as to the nature and causes of the loss of control. Perhaps the most famous illustration of automatism was in the context of an example given in one of the leading cases, Hill v. Baxter in 1958—that of a driver who causes an accident after being stung in their cab by a swarm of bees.

I will cover two final points before ending my survey of the current law and moving on to the future. I know that the hon. Member for Huddersfield has a particular interest in driving offences in the context of this debate, although his interest goes wider than that. Automatism is a defence even against strict liability offences; I mention that because although that defence occurs infrequently, it is most commonly reported in relation to driving offences. Significantly, that defence applies even when the offence does not require intent, such as with dangerous driving.

As my hon. Friend the Member for Cheltenham (Alex Chalk) and others have highlighted, when automatism arises from prior fault or voluntary conduct, that usually—but not exclusively—means that the defendant was taking illegal drugs, or that alcohol was involved, for example. When a person is taking substances other than in accordance with medical direction, and the crime is one of basic intent such as an assault, the defence should fail if the substance taken is known to cause aggression or the consequences that caused the offence. It is not a defence to be completely out of it on drugs or due to alcohol, and as a result commit an offence, however unknowingly. Those questions, though, will often be left to the jury or to magistrates. It is worth stressing that the defence is much more narrowly drawn than many people might imagine.

Let me turn again to why the defence exists and briefly touch on the Scottish situation, which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East alluded to. I understand that in Scotland the context is different, in that an automatism plea is treated as a denial of mens rea. In other words, if acting as an automaton, a person lacks the essential mental element of a crime and as a result should be acquitted of an offence. However, the Scottish courts have clarified that, for the defence of automatism to succeed, there must be a total alienation of reason that is caused by an external factor that was not self-induced or foreseeable. The internal versus external distinction therefore applies as a test in Scotland as it does in England, albeit in a slightly different form, and the defence will also fail if the defendant’s state is self-induced. Although the test of what amounts to insanity is different in Scotland from that in the jurisdiction of England and Wales, the defence—although it takes a slightly different approach—is none the less very similar in its application and consequences for defendants.

As I believe all who have spoken today have also said, I do not think that anyone would contend that a person who commits an act because of loss of control and through no fault of their own should be held liable for that offence. In such cases, it is also unlikely to be in the public interest to prosecute, as a conviction would not be secured. If there is doubt about whether the defendant contributed to their loss of control, then those questions may be tested in court. Of course, it is very difficult for innocent victims of these acts, who may themselves be injured or bereaved as a result of them, to accept that in law no one is to blame. It is particularly difficult for families of those who are killed, again through no fault of their own, by a person who was not in control of their actions. However, it remains unjust to punish someone for something they genuinely had no control over.

As was rightly highlighted by the shadow Solicitor General, the hon. Member for Torfaen (Nick Thomas-Symonds), the code for Crown prosecutors is clear about its dual test. The public interest, and the evidence and likelihood of securing a conviction, are the tests that Crown prosecutors will consider when assessing whether a defence is likely to undermine one or other of those factors. In that context, the hon. Member for Huddersfield mentioned transparency, as did the hon. Member for Torfaen. I think both will be aware that our system seeks to make the decision to prosecute as transparent as possible, including through communication with victims and those victims having the right to challenge and review the decision of the Crown Prosecution Service. In those cases, they will have information about what in those two tests caused the charge to not proceed.

Let me turn to the future, and the Law Commission’s report and proposals about this area. The lack of clarity on automatism to which the shadow Solicitor General referred, and the complexity of the outdated law on the connected defence of insanity, led the Law Commission to conduct a scoping study in 2012 and issue a discussion paper in the following year. The Law Commission did not, however, produce a full set of recommendations on automatism or complete its work with a final report. It rightly recognised that, in the context of its broader work on the law around insanity as a defence, this was an important but small part of a much broader piece. In taking that work forward, its focus was on the “unfitness to plead” aspect, and it is therefore yet to produce for consideration qualified legislative proposals on automatism.

Although the Law Commission’s comments and proposals in the 2013 discussion document would narrow the automatism defence slightly, as has been said, it would not remove it. The proposed reforms sought to simplify the law, replacing the common-law defence with a statutory one, and have one defence that, if made out, would lead to a not guilty verdict rather than the two possible verdicts previously mentioned. The Government considered the initial discussion paper’s proposals, but concluded that they would be a very limited reform to an already rarely used defence.

We have no current plans to bring forward legislative proposals. However, that does not mean that we have ruled out making changes to the law, including the wider and related law on insanity and fitness to plead; we keep that area under review. The shadow Solicitor General tempts me into saying that if the Ministry of Justice wishes to use any legislative time, that would be a good use of it. As a Department, we are productive in legislation; we have been, and I suspect we will continue to be.

To conclude, I congratulate the hon. Member for Huddersfield on drawing the attention of the House to this issue. It is, as I think he said, the first time in 11 years that it has been properly debated, and I am sure there will be Members who are hearing about this issue today for the first time. I thank all who have contributed to the discussion of this complex topic, and I hope I have set out the law as it stands and where the Government stand on it. Finally, the hon. Gentleman knows that we already have a meeting scheduled on a different topic. I enjoy my meetings with him, and if he wishes to add specific questions about this aspect of law to our next meeting, I am happy to consider them.

Sharia Law Courts

Nick Thomas-Symonds Excerpts

Thursday 2nd May 2019 Westminster Hall

[John Howell (Henley) (Con)]

I beg to move,

That this House has considered sharia law courts in the UK.

It is a great pleasure to serve under your chairmanship, Mr Hanson. I am extremely grateful to all hon. Members who have turned up on a Thursday afternoon when there is not much business on and at a time of local elections. That shows their devotion to this House and to the subject of this debate.

The genesis of this debate is a report prepared for the Council of Europe in January, at which I happened to speak. The report was led by a paper prepared by a member of the Spanish Socialist party, and it looked at the compatibility of sharia law with the European convention on human rights. I will turn to that topic later. The report singled out the UK, not completely approvingly, for how it approached this issue, as well other countries, such as Greece, which have taken a different approach.

When approaching this issue, I am aware that the charge of Islamophobia may be levelled against us, but it is right that we consider sharia law courts or councils in terms of their conformity with the European convention on human rights, just as we do with other aspects of UK society. I am also aware of “The independent review into the application of sharia law in England and Wales”, which was produced in February 2018. The review was chaired by Professor Mona Siddiqui of the University of Edinburgh, and the panel included distinguished lawyers and religious and theological experts. I read that report with great interest.

The Council of Europe called on the authorities of the United Kingdom to do a number of things. I will read them out but comment on only one of them. First, it called on the UK to

“ensure that sharia councils operate within the law, especially as it relates to the prohibition of discrimination against women, and respect all procedural rights.”

Secondly, it called on the UK to review the Marriage Act 1949,

to make it a legal requirement for Muslim couples to civilly register their marriage before or at the same time as their Islamic ceremony, as”—

the report claims—

“is already stipulated by law for Christian and Jewish marriages.”

As an aside, I am aware that a number of imams are also qualified registrars and can therefore conduct the civil service at the same time as the religious service. Similarly, a number of Catholic priests are qualified registrars. However, I do not think there is a legal requirement for that to go ahead.

Thirdly, the Council called on the UK to

“take appropriate enforcement measures to oblige the celebrant of any marriage, including Islamic marriages, to ensure that the marriage is also civilly registered before or at the same time as celebrating the religious marriage.”

Fourthly, it called on the UK to ensure that vulnerable women are provided with safeguards against exploitation and informed about their right to seek redress before UK courts. The Council also called for awareness-raising campaigns to be put in place, to encourage Muslim communities to acknowledge and respect women’s rights in civil law, especially in marriage, divorce, custody and inheritance. As an aside, I think there is a lot to be said for emphasising that particular point and ensuring that we indulge in awareness campaigns.

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

I agree with the hon. Gentleman’s point about awareness. Like him, I carefully read the independent Home Office report, which said:

“It is this misrepresentation of sharia councils as courts that leads to public misconceptions over the primacy of sharia over domestic law and concerns of a parallel legal system.”

Although the hon. Gentleman has been careful with his language, as I would expect, the Order Paper says “sharia law courts”, which is precisely what the Home Office report said we should avoid.

[John Howell]

I realise that the independent report calls them sharia law councils, but we can come on to look at that in the moment. I was reading out the Council of Europe’s descriptions, which calls them sharia law courts. We should continue with that, at least for the moment.

The Council’s next point was that the UK should

“conduct further research on the ‘judicial’ practice of Sharia councils”—

to use that term—

“and on the extent to which such councils are used voluntarily, particularly by women, many of whom would be subject to intense community pressure in this respect.”

The Council of Europe committee held meetings with Professor Ruud Peters of the University of Amsterdam and Professor Mathias Rohe of Erlangen University in Germany. On 5 September 2017 it held another hearing and the participants included Mr Konstantinos Tsitselikis, professor in human rights law and international organisations at the University of Macedonia, and Ms Machteld Zee, a political scientist and author. Finally, I was pleased that the committee held an exchange of views with Professor Mona Siddiqui, whom I have already mentioned.

Professor Sandberg from Cardiff University has recently said:

“Surely the issue of concern is whether people are pressurised into the form of alternative dispute resolution provided by Sharia councils? The Resolution distinguishes between situations where Muslims submit voluntarily and, alternatively, where they submit under social pressure”.

He says that the report does not pursue that any further and:

“That, however, is the nub of the issue.”

He goes on to say:

“Where the decision to use a religious authority for dispute resolution is genuinely voluntary on the part of both parties then this should be no more objectionable than any other form of alternative dispute resolution”—

provided that it also conforms with UK law.

As the Council’s report makes clear, sharia law is understood as the law to be obeyed by every Muslim. It divides all human action into five categories: what is obligatory, recommended, neutral, disapproved of and prohibited. It makes two forms of legal ruling: one designed to organise society and one to deal with everyday situations. It also has a legal opinion, intended to cover a special situation.

Sharia law, therefore, is meant in essence to be a positive law, enforceable on Muslims. Although most states with Muslim majorities have inserted in their constitutions a provision referring to Islam or Islamic law, the effect of those provisions is largely symbolic or confined to family law. Those religious provisions may have a legal effect if raised in the courts, and a political effect if they intrude into institutional attitudes and practices.

I shall consider the general principles of sharia law in relation to the European convention on human rights, particularly article 14, on the prohibition of discrimination on grounds such as sex and religion, and article 5 of protocol 7 to the convention, which establishes equality between spouses in law. Other aspects of the convention may also have an effect.

In Islamic family law, men have authority over women, because God has made the one superior to the other. It goes on to say that good women are obedient. It encourages women who stray from those norms to suffer punishment. In sharia law, adultery is strictly prohibited, and legal doctrine holds that the evidence must take the form of corroborating testimony from witnesses to prove an individual’s guilt. In the case of rape, which is seldom committed in public, there must be four male witnesses who are good Muslims, so punishing the rapist is difficult, if not impossible. In practice, women are obliged to be accompanied by men when they go out, which is not conducive to their independence.

Under Islamic law, a husband has a unilateral right to divorce, although it can be delegated to the wife and she can therefore exercise her right to divorce. Otherwise, she may initiate a divorce process but only with the consent of her husband, by seeking what is known as khula, in which case the wife forgoes her dowry. In cases where the husband has deserted the wife, has failed to co-operate with the divorce process or is acting unreasonably, the marriage may be dissolved, but only by a sharia ruling. While divorce by mutual consent is enshrined in Islamic law, the application must in this case come from the wife, since the husband can repudiate his wife at any time. There is also the question of equal rights regarding divorce arrangements, such as custody of children.

For the division of an estate among the heirs, distinctions are made according to the sex of the heir. A male heir has a double share, whereas a female heir has a single share. In addition, the rights of a surviving wife are half those of a surviving husband. Non-Muslims do not have the same rights as Muslims in criminal and civil law under sharia law. That applies, for example, to the weight attached to their testimony in court, which is discrimination on the grounds of religion within the meaning of articles 9 and 14 of the convention.

The European Court of Human Rights had the chance to rule on the incompatibility of sharia law with human rights in the early 2000s, in its judgment on the Welfare party v. Turkey, which held that

“Turkey, like any other Contracting Party, may legitimately prevent the application within its jurisdiction of private-law rules of religious inspiration prejudicial to public order and the values of democracy for Convention purposes (such as rules permitting discrimination based on the gender of the parties concerned, as in polygamy and privileges for the male sex in matters of divorce and succession).”

In that particular case, the decision by the Turkish constitutional court to order the dissolution of the Welfare party, which advocated the introduction of sharia law, was held to be compatible with the convention, and the Court clearly affirmed the following:

“It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.”

With respect to sharia law itself, the Court expressly stated that

“a political party whose actions seem to be aimed at introducing sharia in a State Party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention”.

However, although the Court has ruled that sharia law is incompatible with the convention, that does not mean that there is absolute incompatibility between the convention and Islam. The Court also recognised that religion is

“one of the most vital elements that go to make up the identity of believers and their conception of life”.

Accordingly, the Court’s relatively firm position should not be taken as a rejection of all elements of sharia or of Islam as a whole, while taking into account the existence of structural incompatibilities between Islam and the convention which, as far as sharia law is concerned, are sometimes absolute and sometimes relative.

It is also likely that a large number of cases concerning the position of Muslim women under Islamic law never come before the ordinary courts or the European Court of Human Rights because women are under enormous pressure from their families and their communities to comply with the demands of the informal religious courts. Such cases give rise to the question whether to use the concept of public order to refuse to recognise, or enforce, discriminatory decisions, even if they are not challenged by the women concerned.

There is currently no single accepted definition of the term “sharia council” in the United Kingdom, where such bodies generally provide advice and attempt to resolve disputes relating to family or personal issues according to the principles of sharia law. However, little is known about their work, which is conducted in private, and decisions are not published, leading to a lack of transparency and accountability. There is also uncertainty about the number of sharia courts operating in the UK. A study by the University of Reading identified 30 groups involved in such activity, and a report by the think-tank Civitas estimated that at least 85 groups are in operation, although that figure also includes informal tribunals run out of mosques or online forums.

Sharia councils provide a form of alternative dispute resolution, something I am very familiar with, having chaired the all-party parliamentary group on alternative dispute resolution for the past three years. Members of the Muslim community voluntarily consent to accept the religious jurisdiction of sharia councils. Marital issues and the granting of Islamic marriage divorces account for about 90% of their work. They also advise in matters of law, including issues of inheritance, probate and wills and Islamic commercial law contracts, and they provide mediation, counselling and religious ruling services.

Sharia councils are not considered part of the British legal system. They are not courts and their decisions are not legally binding. However, despite having no judicial authority, some councils see themselves as authoritative on religious issues, and the power of sharia councils lies in how they are perceived by their communities.

A significant number of Muslims do not have a marriage recognised under British law. Those who do not register their marriage under civil law, and some who have been married abroad, have little redress available to them, as their position under British law is similar to that of unmarried cohabitants who have few financial remedies on the breakdown of their relationship. A significant number of Muslim couples fail to civilly register their religious marriages, and some Muslim women therefore have no option of obtaining a civil divorce. Some women may have no other option but to obtain a religious divorce, for which the judgment of a sharia council is normally required.

Furthermore, even in cases where women have a civil law marriage, some might seek the decision of a sharia council for reasons of self-identity or community standing, or to provide reassurance that they have the religious freedom to remarry within their faith. Those who obtain a civil divorce but not a religious divorce might find it difficult to remarry—a position sometimes referred to as a “limping marriage”. One of the experts invited to testify before the committee, Ms Zee, denounced what she described as “marital captivity”.

There are numerous reports citing examples of how Muslim women have been discriminated against by sharia councils. Examples of such discrimination include women being pressured into mediation, including victims of domestic abuse; greater weight being given to the husband’s account of reasons for divorce; women not being questioned impartially by council members, who are almost all men, and feeling blamed for the breakdown of the marriage; and unjustified requirements to pay back their dowry.

There are also allegations that sharia councils have issued discriminatory rulings on child custody. The Casey review cited claims that

“some Sharia Councils have been supporting the values of extremists, condoning wife-beating, ignoring marital rape and allowing forced marriage.”

Researchers were told that

“some women were unaware of their legal rights to leave violent husbands and were being pressurised to return to abusive partners or attend reconciliation sessions with their husbands despite legal injunctions in place to protect them from violence.”

The majority of the evidence, however, is anecdotal, as little empirical evidence has been gathered in relation to users of sharia councils. Further research is therefore necessary; I am aware that the Select Committee on Home Affairs has done some work. Mechanisms are required to provide safeguards and ensure that vulnerable women are not exploited or put at risk. Many of the women are not aware of their rights to seek redress before the British courts.

Sharia councils should not be confused with arbitration tribunals. The Muslim arbitration Tribunal was established in 2007 under the Arbitration Act 1996. It operates within the framework of British law and its decisions can be enforced by civil courts, provided that they have been reached in accordance with the legal principles of the British system. Its legal authority comes from the agreement of both parties to give the tribunal power to rule on their case. In cases where decisions do not conform to the principles of British law, they may simply be quashed. Moreover, the 1996 Act cannot be used to exclude the jurisdiction of the family law courts. The MAT can therefore conduct arbitration according to Islamic personal law on issues such as commercial and inheritance disputes. Many of those issues were considered by Baroness Cox, who promoted the Arbitration and Mediation Services (Equality) Bill in 2011. I will leave hon. Members to look at that.

The independent review was set up because sharia courts were deemed to be discriminating against women, as I have outlined. It has three recommendations. The first is to ensure that civil marriages are conducted before or at the same time as the Islamic marriage, in line with the way in which most Christian and many Jewish marriages are conducted. It also states that there should be a requirement for Muslim couples to civilly register their marriage, and that there be consequential changes to divorce.

I will skip the second recommendation and go to the third recommendation, which is to carry out some regulation of the sharia courts. The Government have declined to do that, for the obvious reason that that would legitimise the courts as part of the judicial establishment, which they have no intention of doing. To go back one, the second recommendation is for a general awareness campaign to acknowledge women’s rights and to inform women of those rights, including the fact that arbitration that applies sharia law in respect of financial or child arrangements falls foul of the Arbitration Act.

The independent review sets out several bad practices, including inappropriate and unnecessary questioning about personal relationship matters; asking a forced marriage victim to attend the sharia council at the same time as her family; insisting on any form of mediation as a necessary preliminary; and inviting women to make concessions to their husbands to secure a divorce. Lengthy processes also mean that, although divorces are rarely refused, they can be drawn out.

There are several other faults with the system, such as inconsistency, a lack of safeguarding policies or clear signposting, and the fact that, even with a decree absolute, a religious divorce is not always a straightforward process. Civil legal terms are adopted inappropriately, which leads to confusion. There are few women panel members of sharia councils, and some panel members have only recently moved to the UK, so they have no understanding of the UK system.

It is often proposed that, based on the evidence of discriminatory practices in some sharia councils, they should all be shut down and banned. The main problem with that argument is that a ban cannot be imposed on organisations that can set up voluntarily anywhere and that operate only on the basis of the credibility given to them by a certain community. The evidence that the review heard indicates that women use sharia councils almost solely to obtain religious divorces, for a number of different reasons, such as community acceptance of the divorce and their own remarriage hopes.

It is clear from all the evidence that sharia councils are fulfilling a need in some Muslim communities. There is a demand for religious divorce that is being answered by the sharia councils. That demand will not simply end if they are banned and closed down; instead, that could lead to them simply going underground, which would make it even harder to ensure good practice and would make discriminatory practices and greater financial costs more likely and harder to detect.

The main point is that there needs to be an acceptance of the law of the land, as there is within other communities, particularly the Jewish community, whose members accept that British law overrides their religious law. It is impossible to understand why somebody would enter a sharia court voluntarily, when they know that they are going to be under pressure to conform with whatever is said there. I discussed that with another Minister, who had better remain nameless. She was incandescent about sharia courts and told me to warn the Minister not to give a mealy mouthed response, or she would be after him. I mention that as an aside; I do not want to influence what the Minister will say at all, but that is a good indication that, particularly among women—that Minister was a Muslim lady—the effect of sharia courts is quite controversial. I am glad that the Home Affairs Committee took evidence on the issue.

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

It is a pleasure to serve under your chairmanship, Mr Hanson. I begin by commending the speeches that have been made from the Back Benches, starting with the hon. Member for Henley (John Howell). I acknowledge his expertise and interest in this issue. I also acknowledge his work in the Council of Europe and the Justice Committee and as chair of the all-party parliamentary group on alternative dispute resolution. I also commend my hon. Friend the Member for Bradford West (Naz Shah) on her passionate speech. I congratulate her on her work in the all-party parliamentary group and her work in our party on the definition of Islamophobia that has been adopted. I also congratulate her on the experience and expertise she brought to the debate today, both in terms of the workings of sharia councils and the extraordinarily passionate and personal section in her speech on her fight against patriarchal culture wherever it is found in our society. I thought she said something extraordinarily true when she said we should always look to talk to communities, not about them. That is something we can all take away from this debate.

As my hon. Friend set out—I echo it—there is nothing Islamophobic at all in bringing this debate forward. It has been a good debate across the board, but I want to speak about Islamophobia not only in the context of this debate, but in the wider context of our society and the time in which the debate takes place. We all acknowledge that Islamophobia and far-right attacks on Muslims here in the UK and across much of the world are rising. The figures show a record number of such attacks and incidents of abuse, and recently five mosques in Birmingham were vandalised on a single night. That does not happen in a vacuum.

While I do not want to stray beyond the confines of this debate, I do think that not only social media companies but the mainstream media have a responsibility for how such matters are covered. Indeed, the UK’s assistant commissioner at the Metropolitan police—the national head of our anti-terrorism measures in the UK—Neil Basu said:

“The reality is that every terrorist we have dealt with has sought inspiration from the propaganda of others, and when they can’t find it on Facebook, YouTube, Telegram or Twitter they only have to turn on the TV, read the paper or go to one of a myriad of mainstream media websites struggling to compete with those platforms.”

He was referring to the wake of the terrible Christchurch attacks in New Zealand and the fact that mainstream media were spreading the awful streaming of that terrible attack. We even see anti-Muslim sentiment whipped up in relation to the food that many Muslims eat. Clearly we all stand together in condemnation of such discrimination, abuse and hatred.

Protection of the rights of religious minorities is an essential feature of any democratic society, and there is a richness to our culture in the United Kingdom. We have people who practise many different religions. It is right that the state should not prevent people from acting according to their religious beliefs and cultural traditions, provided that, first, it does not break the law—I include in that being compliant with our human rights obligations—and, secondly, it is always a product of free choice and by consent.

In that regard, I think we can pick up certain positive aspects, as my hon. Friend the Member for Bradford West indicated. Mediation is based on consent with an agreement on process from both parties, and we can see that happening. We have heard about the percentage of divorces that are dealt with by sharia councils, but such things as boundary disputes, housing, wills, probate and estates can be dealt with, too. We can see positive outcomes when there is agreement on process. In addition, the hon. Member for Henley mentioned the work of the 2007 Muslim arbitration tribunal in that regard.

It is important that we stick to facts when it comes to any form of alternative dispute resolution or religious council, because there is no suggestion that they somehow trump or overrule the rule of law.

[Naz Shah]

Does my hon. Friend share my concern about the title of this debate, which refers to sharia courts, rather than sharia councils?

[Nick Thomas-Symonds]

Indeed. I mentioned that when I intervened on the hon. Member for Henley, who referred to them as councils in his speech. One of the conclusions drawn by the Home Office’s independent report was that the real problem with using “courts” is that it gives the impression that there is a parallel or competing courts system when there is not. That is an extraordinarily important point, and it brings me to my next point, which is that we have to be very wary of misinformation, particularly given the idea that Parliament is somehow introducing this parallel law. That is clearly not the case. It is incumbent on us all to make that clear and to be careful about the language that we use in that regard.

To draw my remarks to a close, the two pillars have to be the rule of law, which will always be paramount, and a basis of consent. My hon. Friend the Member for Bradford West spoke extraordinarily powerfully about the role of women. She is an example of a woman in an extraordinary role and an exemplar to others. We must bear in mind, too, that human rights are always central to how we judge any form of alternative dispute resolution.

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

It is always a pleasure to serve under your chairmanship, Mr Hanson, not least because it protects me from being challenged by difficult questions from someone who did my job many years ago with great skill and knowledge.

I congratulate my hon. Friend the Member for Henley (John Howell) on securing this debate, which addresses an area of significant interest and importance. It is right that this House debates such issues. The work of the Council of Europe has no greater champion or more active participant than my hon. Friend. I am very pleased to be able to respond to the debate. It was due to be responded to by my hon. Friend the Member for Penrith and The Border (Rory Stewart), until his well-deserved promotion yesterday evening, so I confess that I am not an expert in this area, but I have been fascinated by the debate.

I am grateful to all hon. Members who have taken part late on a Thursday afternoon. I am particularly grateful to the hon. Member for Bradford West (Naz Shah), not only for the passion and power that she habitually brings to her speeches, but for the depth of her knowledge and understanding of the subject. I am pleased she was able to be here.

I also recognise the contribution of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who spoke in his usual measured and sensible tone. His contribution was particularly valuable in highlighting the practice in Glasgow, which he touched on.

[Nick Thomas-Symonds]

I omitted to mention the speech of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) not because I did not think that it was impressive, but simply because I treated it as a Front-Bench contribution, not a Back-Bench one. I join the Minister in commending the speech.

[Edward Argar]

I thank the hon. Gentleman for that intervention; I was about to respond to his speech. As ever, he made a powerful and sensible case. He highlighted, as other Members have, the importance of choosing our words with care when we speak in this House, not just on this subject but on all subjects, and the responsibility that we all have, and the broader responsibility of the media and others in this space, to choose our words with care.

I will set out the Government’s position on sharia law. As the Prime Minister has said, and as Members have mentioned today, there is one rule of law in the United Kingdom. In practice, that means, within each of the UK jurisdictions, a single system of law, legislated according to our constitutional arrangements by this Parliament or the devolved Administrations. Our judicial systems interpret, apply and, where necessary, enforce those laws. There is no parallel system of sharia law in operation in the UK; Her Majesty’s courts enforce our laws. My hon. Friend the Member for Henley was right to say that sharia law is not part of the British legal system. We must ensure that we do not succour such misinformation or misconceptions beyond these walls.

Our vision for our communities is that all British citizens, whatever their religious background, should be free to practise individual religious freedom. Many British people of different faiths and none benefit a great deal from the guidance that religious codes and other practices offer. Those values allow us to enjoy our individual freedoms and to lead varied lives in diverse communities. That is one of the great strengths of this great country; however, it has to be within a framework in which citizens share and respect common rights and responsibilities, with unfettered access to national law and our legal institutions to enforce those rights when necessary. Equal access to the law is a key benefit of living in a democratic society. As the hon. Member for Bradford West highlighted, that respect for the law is, I hope and believe, shared by everyone in our country, irrespective of background, gender, religion or any other factor.

If there is any conflict between religious practices and national law, national law must, and will, always prevail. In particular, I highlight the Equality Act 2010 and, as the shadow Minister, the hon. Member for Torfaen (Nick Thomas-Symonds), highlighted, our strong and important human rights legislation and the framework behind it. The Home Office and the Ministry of Housing, Communities and Local Government lead on the broader issues surrounding faith, community integration and British values. The Ministry of Justice is responsible for the operation of the justice system, including the use of non-court dispute resolution services such as mediation, and for the law governing marriage.

I heard the points made by my hon. Friend the Member for Henley on the use of sharia religious principles and the operation of sharia councils. In particular, he highlighted concerns about various forms of discrimination on the basis of sex or religion in family matters, in particular divorce, in relation to the evidential weight applied. I acknowledge too the views set out by the Parliamentary Assembly of the Council of Europe in its resolution, passed in January this year, about the need to combat all forms of discrimination based on religion. As my noble and learned Friend Lord Keen of Elie has said, people may choose to abide by the interpretation and application of sharia principles if they wish to do so, provided their actions do not conflict with national law; however, that must be their free choice, and does not supersede national law.

The resolution reiterated the obligation on Council of Europe member states to protect the right to freedom of thought, conscience and religion, as enshrined in article 9 of the European convention on human rights. That right represents one of the pillars of a democratic society, and we share the Council’s view of that important principle. The resolution also noted that the exercise of the right to manifest one’s religion may be subject to some limitations necessary in a democratic society; it is not an unqualified right. Furthermore, it noted that the operation of religion should never act to limit or remove other convention rights or freedoms to which citizens in a democratic society are entitled, and we agree with that too.

While supporting and, I argue, even encouraging pluralism, the resolution expressed concern about the official or unofficial application of what it termed “sharia law” in several Council of Europe member states. As hon. Members have set out, in relation to the UK specifically the Council of Europe set out its concern about what it views as the judicial activities of sharia councils that, although not part of the British legal system, attempt to provide a form of alternative dispute resolution.

The resolution drew attention to members of the Muslim community, sometimes voluntarily but sometimes under pressure from peers or their own conscience, accepting the religious jurisdiction of such councils. The resolution further noted that it occurs mainly with regard to marital issues involving divorce, as the hon. Member for Bradford West said, and some matters related to inheritance and commercial contracts. The resolution expressed concern that the rulings of sharia councils could discriminate against women in divorce and inheritance cases.

The UK Government are clear that all rules, practices and bodies, including systems of alternative dispute resolution, must operate within the rule of law. Our law provides for a formal system of legally binding arbitration under the Arbitration Act 1996, which allows parties to consent to apply a system of law other than English law, with appropriate procedural safeguards to protect against duress or coercion. Arbitral decisions can play an important role, but only if the necessary procedural requirements and legal safeguards are satisfied. Most types of family dispute can be resolved in a legally binding way only if they are adjudicated by the courts.

The Government understand the concerns that some Members have set out about the operation of sharia councils. Indeed, the resolution on the basis of which the debate has been tabled acknowledged and welcomed the Home-Office-commissioned independent review, chaired by Professor Mona Siddiqui and commissioned by the now Prime Minister. That review looked at whether sharia law was being misused or applied in a way that is incompatible with domestic law in England and Wales, and whether there were discriminatory practices against women who use such councils.

Human Rights in the UK

Nick Thomas-Symonds Excerpts

Wednesday 13th February 2019 Westminster Hall

[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.

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

The European convention on human rights was opened for signature in November 1950 in Rome, and the Government in this country was a Labour Government from 1945 to 1951. Will the hon. Gentleman praise the socialist Government under which the ECHR was originally conceived?

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[Alex Chalk (Cheltenham) (Con)]

It is a pleasure to serve under your chairmanship, Mr Gapes. I pay tribute to the hon. Member for Edinburgh East (Tommy Sheppard) for leading this debate.

I want to say a few words about the European convention on human rights, which I very much support. It is important to emphasise that the values that we see in the European convention are British values. Let us look, for example, at some of the rights contained within it: the right to life, which sounds fairly British to me; the right to avoid torture, inhuman or degrading treatment, article 3—we could probably sign up to that; the right not to be subject to slavery, article 4; the right to liberty and security, article 5; and the right to a fair trial and so on. All too often this debate has been tainted by a misunderstanding of what the actual rights are, as though they are a foreign import that do not reflect some of the cultural norms in our country, but nothing could be further from the truth. That is emphasised by the fact that, certainly in my experience in court, and I dare say in the experience of plenty of the other distinguished practitioners in this room today, it is overwhelmingly the case that any submission that is supported by, for the sake of argument, article 6 is often buttressed by domestic legislation as well.

In the criminal courts, if someone seeks to exclude evidence that is relied upon by the prosecution on the grounds that it would deny their client the right to a fair trial, it might be that, in tandem with invoking article 6, they will rely on section 78 of the Police and Criminal Evidence Act 1984. Although the hon. Member for Strangford (Jim Shannon) was absolutely right to highlight individual cases where rights had been asserted in order to achieve a remedy, in the overwhelming majority of cases in our country the domestic legislation does perfectly well and may be supported to some extent. As I say, it is rare that the right itself would found the claim or application for a remedy.

[Nick Thomas-Symonds]

The hon. Gentleman is entirely right in his assessment of the criminal law. The one area where the Human Rights Act, in the sense of the incorporation of the ECHR into UK law, has made a big difference is in family law, particularly in rights to see children.

[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.

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

It is a pleasure to serve under your chairmanship, Mr Gapes, and I am grateful to all hon. Members who have contributed to what has been, on the whole, a very fine debate on human rights. I warmly congratulate the hon. Member for Edinburgh East (Tommy Sheppard) on securing it, and on his speech. He powerfully highlighted why this debate is so timely, given the worry that there will be a roll-back of rights, and that the EU27 will move ahead and enhance rights while we in this country fall behind. He also spoke well about the Prime Minister’s ambiguity on this matter, to say the least—I will return to that in a moment—and he picked out some strong examples of practical cases where the Human Rights Act and the incorporation of the ECHR into UK law has made a difference to those seeking justice in this country over the past two decades.

It was great to hear about the human rights city initiative in York, and I congratulate my hon. Friend the Member for York Central (Rachael Maskell) and all those involved in that. We must spread information about the human rights and equalities board, and all the other work going on around the country. I am also grateful to my hon. Friend the Member for Edmonton (Kate Osamor), and the report of the UN special rapporteur on extreme poverty and human rights should wake us up to the endemic problems of poverty in this country. She spoke about human rights agreements being breached, and that involves the economic and social rights of women, children, and disabled people. That is a stark reminder that although rights are critical, they are paper rights if people do not have the means to enforce them. It says everything we need to know about economic policy over the past nine years when an outgoing Lord Chief Justice can say that our justice system is “unaffordable to most”, and that should be a matter of great alarm.

The hon. Member for Henley (John Howell) spoke about his experience on the Council of Europe, and the hon. Member for Strangford (Jim Shannon) spoke movingly about religious persecution, about which we should all be vigilant. I did not agree with all the arguments made by the hon. Member for Cheltenham (Alex Chalk)—he is no longer in his place—but I certainly agreed with his support for the European convention on human rights.

We must return to first principles when discussing the European convention on human rights, which grew after world war two out of the desire and noble objective to ensure that what had happened could not happen again. As I said to the hon. Member for Henley, the convention was part of many different initiatives by the post-war Government to put that “never again” spirit into practice. I am always even-handed when dealing with the history of this initiative, so let us consider who supervised the drafting of the original ECHR. One of the people who took part in that, David Maxwell Fyfe, was a Tory MP and lawyer, and I wonder what on earth he would make of some of the modern-day Conservative party’s ambiguity towards that initiative.

What does the ECHR actually protect? I think the hon. Member for Cheltenham touched on that. It protects respect for life and is against torture and servitude. It protects liberty and security, and the right to a fair trial and not to have legislation applied retroactively. It protects the right to privacy, freedom of conscience and religion, and freedom of expression and association. It protects the right to get married if one wishes to, and provides effective remedies and protection against discrimination. Who could disagree with any of that? My challenge to those who say that we should have a British Bill of Rights is to ask which of those rights they would take out and not include in that Bill. I remember asking Ministers that question when I first came to Parliament in 2015, but answer came there none.

[John Howell]

As I said, I am a great champion of the convention, and although it was written immediately after the second world war, it contains nothing that does not apply to today.

[Nick Thomas-Symonds]

I am happy to find some agreement with the hon. Gentleman because, yes, all those things still apply today. That is precisely my point—why would anyone want to change any of those time-honoured principles? Of course we can debate how some of them are applied and so on, but those principles are as important and relevant in 2019 as they were in late 1950 when the convention was opened for signature.

The Human Rights Act 1998 is also seminal—it is important to understand precisely what the situation was before its passage. The hon. Member for Henley said that our courts started following the judgments in 1965, but of course the problem was that between the early 1950s and October 2000, when the 1998 Act came into force, if one wished to enforce any of those rights, one had to go to Strasbourg in the first place. The big change that came about in 2000 was the ability to go to our local courts to enforce those rights, which meant that it was cheaper, easier and more efficient to enforce the rights that our citizens had held for so long. That was a seminal change.

I parted company with the hon. Member for Cheltenham because, although in one sense he is right to say that those rights buttressed existing UK common law rights, there are numerous examples—the hon. Member for Edinburgh East referred to some of them, and I also point out the example of family law to the hon. Member for Henley—where the incorporation of the 1998 Act into UK law has made a significant difference.

The Labour party is very committed and passionate about the ECHR and the UK’s signatory status, and about its incorporation into our domestic law. However, there is real concern about the governing party’s position, particularly that of the Prime Minister, on the ECHR. In 2011, the Prime Minister—when she was Home Secretary—said:

“I’d personally like to see the Human Rights Act go because I think we have had some problems with it.”

Her first view appeared to be that she wanted it gone.

In April 2016, she said:

“So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave, but the ECHR and the jurisdiction of its court ”.

That is the Conservative party’s position in its 2017 manifesto, which states:

“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament.”

In his response, the Minister has an opportunity to explain, because although we know what the position is for this Parliament, we do not know what it will be for the next Parliament. The hon. Member for Henley said, quite rightly, that these are time-honoured principles. Why, according to the Conservative party, are they only good enough for this Parliament? Why are they not good enough for the next Parliament, the next 10 Parliaments or the next 20 Parliaments?

I can say for certain that the Labour party will always be fundamentally committed to human rights, to the ECHR and to the Human Rights Act 1998. Can the Minister say the same for his party?

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

It is a pleasure to serve under your chairmanship, Mr Gapes. I congratulate the hon. Member for Edinburgh East (Tommy Sheppard) on securing this debate on human rights in the UK. I have listened with great interest to the views expressed. We have a multiplicity of not only hon. Members, but hon. and learned Members, who have offered the benefit of their legal expertise.

The hon. Member for Edinburgh East set out not only his case, but the broader importance of human rights as a concept, highlighting a number of specific cases and examples. That is, quite rightly, a subject of real importance to all Members, and one in which I have taken a very close interest within my portfolio. It is not only intellectually fascinating but, as hon. Members have said, it permeates our national life.

The hon. Gentleman raised the issue of where responsibility for human rights should sit. I will not take personally his suggestion that it be moved. The reason that it currently sits with the Ministry of Justice and with me is that, although he is absolutely right to say that it is a cross-cutting issue, the Ministry of Justice is a key defender of the rule of law, and this issue goes to the heart of that. I am sure, however, that the Chancellor of the Duchy of Lancaster and Ministers in the Cabinet Office will have noted his points.

As many hon. Members have said, human rights in the UK are not new. The UK has a reputation for setting the highest standards, both domestically and internationally. As has been set out, that did not begin with the ECHR, the Human Rights Act 1998 or our membership of the EU—nor will it end with our exit from the EU. “Human rights” as a distinct term may have entered common usage in this country in the 20th century and developed through international treaties and organisations, but the concept of rights—and, I might add, responsibilities—in our country goes all the way back to Magna Carta in 1215, the Petition of Right in 1628, the Bill of Rights in 1689 in England and the Claim of Right in 1689 in Scotland. The concept has evolved over many centuries.

Common law developed alongside statutes and set out rules developed by the courts to govern relationships between people and Government, which we would recognise today as “rights”. We have a strong and proud track record on that. As the hon. Member for York Central (Rachael Maskell) highlighted when talking about her city and its university, in many of our communities, the issue is rooted more locally. I was particularly interested in her comments about the work that the university and her city are doing in that respect.

Winston Churchill, no less, was one of the main advocates for a new regional organisation that was to become the Council of Europe. In 1942, he called for the “enthronement of human rights” and in 1948, he called for a charter of human rights that would be

“guarded by freedom and sustained by law.”

The European convention on human rights, as many hon. Members have mentioned, was drafted in 1950 by the Council of Europe, to safeguard basic political and civil rights.

I am always educated, not only in matters of the law, but in matters of history, by the shadow Minister, although in this case, it is a coincidence that I read David Maxwell Fyfe’s memoirs over Christmas. I suspect I am one of only a very small number of people in the House, or indeed in the country, to have done so.

As has been said, the UK was one of the first to sign up to the ECHR in 1951, before it came into force in 1953. It has been strengthened over the years by protocols, and the 1998 Act was a huge step forward in putting those rights on a footing whereby they could be enforced in the UK’s domestic courts. As my hon. Friend the Member for Cheltenham (Alex Chalk) set out, the ECHR reflects—not in totality, but in large parts—domestic laws both passed by Parliament and in previous common law. My hon. Friend’s views on the matter are always thoughtful and considered.

How are we doing in relation to the rights that we now recognise as forming our human rights framework? Let us not judge ourselves; let us see how others judge us. The hon. Member for Edinburgh East and my hon. Friend the Member for Henley remarked that we have a proud track record. Last year, the European Court of Human Rights in Strasbourg considered 354 applications against the UK, which equates to 5.34 applications per million inhabitants—the lowest of all 47 states parties, and one tenth of the European average. Only 21 cases were considered by the Court to be potentially of merit and were sent to the UK for a response, with just two judgments against the UK. That touches on a point that the hon. Member for Strangford (Jim Shannon) made about the need to strike a sensible and appropriate balance when considering such issues in a domestic context, which I think the UK generally does.

After the UK has left the EU, it will continue to afford its citizens access to well-established domestic and international mechanisms to bring their case and obtain appropriate remedies.

[Nick Thomas-Symonds]

I am pleased to hear that the Minister has read the biography of David Maxwell Fyfe. On our future commitment to the ECHR, at the moment there is real concern that the Conservative party’s positon is to remain a signatory for the duration of this Parliament only. Can the Minister give a guarantee for the next Parliament and beyond?

[Edward Argar]

If the shadow Minister is patient, I will turn to what our ongoing position is—a number of Members have made that point. He may or may not be satisfied, but I will seek to answer him.

As I was saying, individuals will be able to obtain appropriate remedies when they consider their rights to have been breached. That will remain under our common law, the devolution statutes and, of course, the Human Rights Act 1998.

At the beginning of this month, the shadow Justice Secretary, the hon. Member for Leeds East (Richard Burgon), asked my right hon. Friend the Lord Chancellor and Secretary of State for Justice, to

“give a reassurance...that the Government will not repeal or reform the Human Rights Act in the aftermath of our departure from the European Union”.

The Secretary of State answered:

“We certainly have no plans to do so”.—[Official Report, 5 February 2019; Vol. 654, c. 163.]

I believe that that offers reassurance—perhaps not as specific as my shadow might wish, but it offers reassurance.

As we made clear in the Chequers White Paper, and as is clear in the political declaration, the UK is committed to membership of the European convention on human rights and will remain a party to it after we have left the European Union. The Lord Chancellor, and in this Chamber, the shadow Minister and others, read out the wording of our manifesto commitment on the matter. Our future relationship with the EU should be underpinned by our shared values of respect for human rights and fundamental freedoms. As reflected in my opening comments, the UK is committed to human rights. Our exit from the EU does not change that or signal a desire to reduce human rights protections.

I reiterate that most of those protections stem from work by the Council of Europe and under the ECHR, rather than from the EU, as my hon. Friend the Member for Henley set out eloquently in his speech. I take the opportunity to pay tribute to the work of all those hon. Members, including my hon. Friend, who serve on the Council of Europe. It is an organisation that, though not spoken about as often as it perhaps should be, continues to do very good work quietly and persistently. With that in mind, while I recognise the courtesy with which the hon. Member for Edmonton (Kate Osamor) made her point, I simply do not share her view that Brexit will leave any deep hole in human rights protections in this country.

More broadly, I too enjoyed reading Professor Miller’s recent report, which the hon. Member for Edinburgh East cited, and the work undertaken for the Scottish Government by the First Minister’s Advisory Group on Human Rights Leadership, which proposed new ways to draw further international commitments to which the UK is party into Scotland’s legislative framework. To underpin seven recommendations in the report, Professor Miller engaged in the broader debate about human rights in the context of socio-economic considerations and whether those should sit in a revised framework. That is part of a broader political and philosophical debate, with different views, as we have seen in the Chamber today. I suspect it is a debate that will continue. The hon. Gentleman asked whether it would continue in this place, and I have no doubt that if it does not, he will seek a debate on exactly that subject.

The SNP spokesperson, the hon. and learned Member for Edinburgh South West (Joanna Cherry), asked that I read and consider the report and its contents. I will do so; I am happy to read it again and to consider it carefully. I cannot give a commitment about whether I will agree with everything in it, but I will certainly reflect on it carefully, as I do with anything she suggests that I should read.

UN human rights treaties have not been incorporated into UK domestic law, and they do not require states parties to do that. The UK has instead put in place a combination of policies and legislation to give effect to the UN human rights treaties that it has ratified. We have a long-standing tradition of not only ensuring that rights and liberties are protected domestically, but fulfilling our international human rights obligations. That aspect should not be neglected.

Some hon. Members touched on the report of the UN special rapporteur. As other Ministers have made clear, the Government will consider carefully the rapporteur’s interim findings, but they disagree with the conclusions reached by the rapporteur, highlighting that, compared with 2010, for example, income inequality has fallen, the number of children in workless households is at a record low, and 1 million fewer people are in absolute poverty. I suspect, however, that that is a debate for another day—it could take at least another hour and a half, if not more.

I am the Minister responsible for overseeing the UK’s obligations under the UN convention against torture and other cruel, inhuman or degrading treatment or punishment, and its optional protocol, and under the UN covenants on economic, social and cultural rights and on civil and political rights, not forgetting the UN human rights peer review process, the universal periodic review. I take those responsibilities seriously, and last year I went in person to Geneva to discuss the UK’s role in relation to the convention against torture with officials. Broadly, in my conversation with them, I was clear—as were they—that the UK has a continuing role in leading the way on human rights in the world.

The title of this debate is “Human Rights in the UK’, so let me sum up by reflecting on the fact that the UK has a rich tapestry of rights running throughout our history, for hundreds of years, and reaching out across the globe. They neither began nor will end with the EU, and many of the key rights stem from the Council of Europe. I appreciate entirely that, during times of change, voices will rightly be raised to question protections and the future, challenging Government. It is absolutely right for that debate to take place.

Let us focus on the commitments given, the protections in place and our historical role—we should be judged on those and on this country’s proud commitment to human rights. Many have suggested that human rights matter; I go further, echoing the words of my noble Friend Lord Keen of Elie: human rights are central to the way we live now and to the way we wish to live in the future. They are an integral part of the society of which we wish to be a part, and a reflection of our identity as individuals and as a country.

I thank all hon. Members who have taken part in the debate, and you, Mr Gapes, for chairing it. In particular, although we might not agree on everything, I thank the hon. Member for Edinburgh East. I suspect that we will return to the subject in future—quite rightly so.

Draft Selection of the President of Welsh Tribunals Regulations 2017

Nick Thomas-Symonds Excerpts

Tuesday 28th November 2017 General Committees

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

It is a pleasure to serve under your chairmanship, Sir Henry. I draw the Committee’s attention to my relevant entry in the Register of Members’ Financial Interests—stating that I am a door tenant at Civitas Law in Cardiff—and indicate that I practised law from chambers based in Cardiff as a barrister prior to my election to Parliament.

As the Minister set out, the regulations provide for the process of appointing the President of Welsh Tribunals. In the first instance, there is the procedure by which the Lord Chief Justice, the Lord Chancellor and Welsh Ministers agree on a candidate, and although one would ordinarily expect that to be the case, the regulations provide for the appointment of the president when agreement is not reached in those circumstances. The post is created by section 60 of the 2017 Act, part 3 of which sets out the duties that the post holder will have to carry out. Appropriate arrangements are to be made for the training, guidance and welfare of members of tribunals and, importantly, for reporting their views to Welsh Ministers and other Assembly Members.

The Opposition will not oppose the regulations, but we will be holding this Government and Governments across the UK to account on openness and transparency. The appointment of the post holder will further the goal, which I am sure is shared across the House, of creating a more diverse judiciary based on merit in appointment.

The Minister set out the various tribunals that exist in Wales—the Welsh Government inherited some of them in 1999; responsibility for some has since been acquired; and some of them have been newly established. Although there is a growing body of tribunals and members who sit on tribunals in Wales, it is important that the post holder not only enhances judicial independence in Wales, but provides strong judicial leadership for the sector and ensures that its views are heard, all of which should enhance the dispensation of justice for the people of Wales. We will not oppose the regulations.

Question put and agreed to.

Local Authority Funeral Charges

Nick Thomas-Symonds Excerpts

Tuesday 24th October 2017 Westminster Hall

[Siobhain McDonagh (Mitcham and Morden) (Lab)]

I beg to move,

That this House has considered local authority funeral charges.

In particular, I hope that the House will consider the exploitative fees faced by non-residents of a borough at their time of grief.

I will start by setting the scene faced by thousands upon thousands of families across the UK, before moving on to consider the specific cost of burials and then the disparity in charges between local authorities. Around one in seven families across the nation simply cannot afford to pay astronomical funeral costs, with the staggering cost of funeral poverty now at a record high of £160 million. The average cost of a funeral in Britain now stands at a remarkable £3,897, a figure that is up 5.5% in the last year alone. Funeral costs are rising faster than inflation, wages or pensions. In fact, the cost of even a basic funeral doubled between 2004 and 2014, and it has risen even faster, year on year, since 2014.

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

My hon. Friend is making a very powerful case about funeral poverty and I congratulate her on securing this debate on the subject. Does she agree that the UK Government should do all they can to help local authorities to remove these fees and follow the lead set by my own local authority of Torfaen, which has abolished child burial fees all together?

[Siobhain McDonagh]

I thank my hon. Friend for his intervention and I am sure that, like me, he would like to congratulate our hon. Friend the Member for Swansea East (Carolyn Harris) for all her work in that regard; I will refer to her again later.

The rising cost of funerals has left a huge number of families trapped in a state of funeral poverty, which manifests itself both financially and emotionally, with University of Bath research identifying depression, anxiety and insomnia as funeral poverty’s common associates. It is no wonder, therefore, that funeral services were the most common item for credit card usage in the UK in 2013, with one in 10 people having to sell belongings to cover funeral costs. Grief leads to exploitation, exploitation leads to debt, and I personally cannot think of many worse debts to hang over a person than that arising from a family member’s funeral. I even hear that the Select Committee on Work and Pensions was told of a sobering case of a mother who was reportedly unable to afford a funeral for her son. Consequently, she was forced to freeze his body for months on end while she saved the necessary money to pay the funeral fees. That is just one of the terribly tragic human stories behind the facts and figures of widespread funeral poverty.

Such extortionate costs are not only faced by individuals but by local authorities. I am particularly disturbed to hear that several councils, including Monmouthshire County Council in Wales, carried out multiple public health funerals using shared graves last year, identifying a shortage of land as the reason for such an inhumane practice.

Despite the wide-ranging issues in relation to funeral poverty, it is the specific problem of burial costs and their widespread disparity across local authorities that led me to call this debate. A constituent of mine, Rachel, experienced the problem at first hand. When Rachel’s grandfather died in 1976, her family bought a plot for six graves in Honor Oak cemetery, which is in the London Borough of Southwark. In 1988, her grandmother passed away and was subsequently buried in the family plot. Rachel’s family now live in my constituency of Mitcham and Morden, in the London Borough of Merton, which is just a few miles south of Southwark.

Sadly, Rachel’s mother died in July this year. When Rachel and her family applied to open the plot in Southwark so that Rachel’s mother could be buried alongside her own mother and father, Rachel was advised that the charge to do so would be trebled, just because her mother was not a resident of Southwark at the time of her death and despite the fact that her family owned the grave space. The cost for Rachel’s family was a staggering £3,977.

I believe that was unfair; Rachel knew it was completely unfair; and, fortunately, after a little hesitation the head of the cemetery also agreed that it was unfair. Five days before the funeral, he accepted that Rachel’s family could bury their mother in the plot for a resident’s fee, which, at £1,326, is already expensive.

Rachel’s story of that anomaly is a story about the widespread national exploitation of grief. I, for one, do not think that Rachel or her family should ever have been put in that position in the first place. Rachel believes that the varying costs that families face from borough to borough is both unjust and unfair, calling it an

“extortionate death payment that is decided by the borough”.

Rachel has also said:

“Although we eventually managed to avoid paying the non-resident charge, there are others who are less able to fight the injustice, especially at a time when they are at their most vulnerable and grieving the loss of a loved one.”

European Union (Withdrawal) Bill

Nick Thomas-Symonds Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

I shall support the Bill on its Second Reading for the simple reason that it is necessary. I do not do so with relish, because I would rather that we were not leaving the European Union, but, as a democrat, I accept the outcome of the referendum. And if we are to leave, we must do so in an orderly fashion, and it is therefore particularly important that we have legal certainty and continuity. The objective behind the Bill, of incorporating EU laws under the acquis into our law, is perfectly sensible, and that is why I shall support it, but we must also have a Bill that is fit for purpose and actually achieves that effectively. Although I shall support the Bill on Second Reading, as will become apparent, I do so on the basis that it needs improvement in a number of areas in Committee.

I had the chance to read in detail the impressive speeches of my right hon. and learned Friends the Members for Rushcliffe (Mr Clarke) and for Beaconsfield (Mr Grieve), who I am glad to see are both in the Chamber. I agree with their analysis, and I will not seek to repeat it all. I adopt what they said about the areas where improvement is needed. It has already been pointed out that there are difficulties with the Henry VIII powers. It seems to me that clauses 7 and 9 go beyond what is acceptable or necessary, and I hope that the Government will approach that matter in a sensible and constructive spirit. Equally, delaying the Bill would do no favours to the good governance of the country, to citizens or to businesses and business confidence, so I certainly have no truck with the Opposition’s approach of seeking to undermine the Bill.

We need to make clear the areas of the Bill that need improvement. There is of course a use for so-called Henry VIII powers for making secondary legislation in appropriate cases, but in some areas we are dealing with matters of the most profound significance for individuals and businesses. I hope that the Ministers, who are reasonable people, will listen to constructive amendments that would provide reassurance and safeguards against inappropriate use of those powers and would improve the Bill by bringing greater clarity to the way they can be applied.

I shall touch briefly on a couple of other matters. I hope that we can look at the opportunity to assist the judiciary with how they interpret the EU acquis, which will be incorporated in our domestic law once we have left. The recently retired President of the Supreme Court, Lord Neuberger, made this point powerfully, and he did not do so lightly. It is frankly not fair to leave judges to fish in the dark when they come to interpret some of the legislation.

A particularly important issue in this respect is that once we leave the direct jurisdiction of the European Court of Justice, the opportunity to seek preliminary rulings on issues will no longer exist and we have to find alternative means for dealing with that. My right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) referred to the Francovich situation. She is right about that issue, which should be addressed. Similarly, we have to bear in mind that we will incorporate EU law, which in some cases is based on the treaties. Will the UK courts be able to take the treaties into account in assessing how incorporated law should be applied post our leaving? Those are important areas where greater clarity is needed. What is to be done about situations where incorporated law grants a right to a UK citizen or business but our leaving will, at the moment, leave a gap as to whether that UK citizen or business has a remedy?

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

One of the issues is that with environmental law, for example, there is currently a remedy of going to the European Court of Justice, but there is no replacement in the Bill as it stands.

[Robert Neill]

That is entirely right, and it cannot be rational or coherent to give UK citizens a right under UK law by incorporating European law but give them no ability to exercise that right. That applies whether a case is against another individual, against a business, or indeed against the Government. My right hon. Friend the Member for Newbury (Richard Benyon) pointed out that that also raises the issue of infraction proceedings: what is the remedy if the Government breach incorporated law?

Those important issues need to be dealt with in Committee, so I turn briefly to the programme motion. We must have time to deal with these matters properly. I want the Bill to be successful. I want it to end up as a good Bill, and that will require changes to the Bill. With good will, that can be achieved—and it can be achieved timeously, to ensure that what we need is in place at the time when we leave the European Union. I have no truck with those who seek to filibuster and needlessly delay the Bill. If I am to be able to support the Government on the programme motion, I hope that they will assure us that we can have some flexibility if more time is required for genuine, serious consideration of important amendments, but I hope that it is not needed—there is a distinction between proper consideration of serious points of amendments and the sort of filibustering that I am sure we will see. On that basis, I am prepared to give the Government a fair wind, but it is important that we get that assurance so that our important scrutiny work can be done properly.

Finally, I have just returned from Gibraltar, where I was with several other colleagues for its national day celebrations. Gibraltar will be affected by our departure from the European Union, but I am glad to say that Her Majesty’s Government of Gibraltar and the business and civil communities there are satisfied with their level of engagement in the negotiations so far. However, can I have an assurance that when we come to deal with secondary legislation that may affect Gibraltar, its Government will be fully involved in the drafting of any secondary legislation that may have an impact on them?

--- Later in debate ---

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

It is a pleasure to follow the hon. Member for Stirling (Stephen Kerr).

Let me make it clear at the outset that since the referendum of 23 June last year, I have always respected the outcome of the vote, both in my constituency and throughout the United Kingdom. That is why I have spent the last 15 months arguing for the best possible Brexit deal, which will secure jobs and prosperity in my constituency. This Bill, however, is not about the principle of withdrawal from the EU. It is about constitutional arrangements, and, as a Welsh Member of Parliament, I note in particular that the Welsh Government does not have the power to amend retained EU law—in other words, the law that is brought back via the Bill. This is about the kind of democracy that we are, and it is about the rights of our citizens. As I said in an earlier intervention, citizens currently have the right to take the Government to the European Court when they are found wanting in respect of certain matters, including environmental matters. Where is that remedy, or its replacement, in the Bill? It is not there.

Above all, there is the argument—I have heard it on a number of occasions, and I respect it—about bringing powers back to the House of Commons. The Bill does not achieve that. It is not so much a Bill to take back control to Parliament as a Bill to take control away from the legislature and give it to the Executive. I am deeply concerned about the Henry VIII powers in clauses 7, 8, 9 and 17; to put it simply, I do not trust Tory Ministers with those powers.

At the weekend, I was very interested to read a leaked letter signed by, apparently, up to 40 Tory MPs. It set out various red lines in respect of the transition deal that they want to see. What did it say about Henry VIII powers? It said:

“There can be no Henry VIII laws which automatically add EU/EEA laws onto our statute books”.

How are we, as Opposition Members, supposed to trust Ministers with Henry VIII powers when their own MPs will not?

I looked back at the past to see whether there is any precedent for handing over such powers to the Government. I had to go back as far as the Rating and Valuation Act 1925, would you believe, to find an Act that allowed Ministers to change the provisions of that Act. It states that

“any such order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the order into effect”.

That led the Lord Chief Justice of the day, Lord Hewart, to write a book called “The New Despotism” in 1929—I recommend it to Ministers—about what he called “the departmental despot”, who would be in a position to carry out law making away from proper accountability, away from scrutiny, and away from the reach of ordinary law.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

I agree with my hon. Friend that clauses 7, 8 and 9 are Henry VIII clauses, enabling Ministers to repeal and replace elements of the statute book at will and implying that our Parliament will not be able to take back control. It is clear that, rightly respecting the British public’s decision, we will be leaving the EU because article 50 has been triggered, but does my hon. Friend agree that, as it stands, the Bill is fatally flawed because it amounts to a power grab by Ministers?

[Nick Thomas-Symonds]

My hon. Friend is absolutely right that it is fatally flawed, and that is why I will vote against it with hon. Friends in the Lobby tonight.

I will simply never be able to trust Tory Ministers with things like workers’ rights, environmental protections and consumer rights. Let us take workers’ rights as an example. The Prime Minister has promised to retain all our workers’ rights as long as she holds office. In light of recent events, I hardly think that is particularly comforting, but in case we have any other doubts, let us just see what the then Tory Employment Minister, currently the International Development Secretary, said during the referendum campaign. She gave a speech at the Institute of Directors on 17 May 2016, about a month before the referendum. What does she want to do? To quote her, she wants to

“halve the burdens of the EU social and employment legislation”.

That is what the Tory Employment Minister said at the time of the referendum. It is no surprise that the Tories cannot be trusted now.

[Christian Matheson (City of Chester) (Lab)]

Did my hon. Friend see last Tuesday’s Order Paper, which listed a whole bunch of private Members’ Bills tabled by Brexiteer Conservative Members, including a Bill to take away the working time directive?

[Nick Thomas-Symonds]

I am grateful to my hon. Friend for drawing attention to that, and it simply reinforces the case we are making: that Tory Ministers simply cannot be trusted with powers of this nature.

We have also frequently heard the argument about the need for legal certainty, but the Bill as drafted does not provide that legal certainty. What guidance does it give to judges post-Brexit as to how they are supposed to interpret the law that originated from the European Union? Absolutely none. The idea of a preliminary reference to the European Court is of course no more, because of the red line on the ECJ. That is completely gone. The remedy that citizens once had to go to the European Court is also gone. So the idea that, post Brexit, the Bill will assist our constitutional arrangements and provide clarity is simply wrong.

[Mr Mark Francois (Rayleigh and Wickford) (Con)]

No, people will not be able to go to the ECJ—the hon. Gentleman is right about that—but they will be able to go to the British Supreme Court, just down the road from here, where decisions that affect them and their countrymen will be taken by British judges according to British law. What is wrong with that?

[Nick Thomas-Symonds]

I have nothing against British judges taking decisions. What I am talking about is the failure of this Bill to provide clarity about how the law now will be transposed into the law then. Let us talk about a judge down the road who is faced, for example, with a citizen demanding a remedy of holding the Government to account for failure to deal with pollution. They would previously have had a right to go to the European Court. What will be their right under the Bill? The Government have absolutely no idea. Let us have a Bill that gives that clarity post Brexit, which this Bill manifestly fails to do.

[Mr Francois]

Will the hon. Gentleman give way again?

[Nick Thomas-Symonds]

No, I am not giving way again; I have given way three times, and many Members want to speak in this debate.

Let me summarise by saying this: the Bill is shoddy, and undermines the parliamentary democracy that it was meant to enhance. It is not worthy of support, and I urge colleagues not to support it tonight.