Prisons and Courts Bill (Sixth sitting)

Nick Thomas-Symonds Excerpts

Thursday 20th April 2017 Public Bill Committees

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

Further to that point of order, Mr Stringer. I associate myself with all the Minister’s remarks. I, too, thank everyone who has contributed to the Committee’s sessions. When I came up to Westminster from south Wales on Tuesday morning, I thought that the Committee would dominate my week and some other weeks, but events have intervened. The sessions that we had were very positive. There was a large measure of agreement but, at times, robust debate too, which I am sure will stand all the various issues in good stead for the future.

[The Lord Commissioner of Her Majesty’s Treasury (Guy Opperman)]

Given events and with the leave of the Committee, I wish to move a motion.

Ordered,

That the Committee do not proceed with further consideration of the Bill.—(Guy Opperman.)

Prisons and Courts Bill (Fifth sitting)

Nick Thomas-Symonds Excerpts

Comittee Debate: 5th sitting: House of Commons
Tuesday 18th April 2017 Public Bill Committees

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

I beg to move amendment 92, in clause 23, page 20, line 40, at end insert—

‘(c) provision ensuring that persons charged with offences have available to them information on the suitability of the written information procedure, taking into account their particular circumstances.’

This amendment ensures the Criminal Procedure Rules include a provision requiring defendants have adequate information about the written information procedure provided to them.

[The Chair]

With this it will be convenient to discuss amendment 91, in clause 23, page 21, line 13, at end insert—

‘(4A) Criminal Procedure Rules must include provision for a person charged with an offence, or a parent or guardian of that person, to be given in writing—

(a) notification of a defendant’s right to legal assistance;

(b) notification of plea procedures available, not limited to the written information procedure;

(c) an explanation of the consequences of indicating their plea in writing.

(4B) Information provided under subsection (4A) must be presented in an accessible format using clear language.’

This amendment ensures defendants receive adequate information and notification about the written information procedure, including alternative plea procedures and the consequences of indicating their plea in writing.

[Nick Thomas-Symonds]

It is a pleasure to serve under your chairmanship again, Mr Stringer.

On the first day the Committee sat, I mentioned in a declaration of interest that I thought that, in the aged debt that I still bear as a barrister, fees might be owing from insurers. I was not immediately able to do the sums—I was away the next day because my baby son was having an operation—but, having checked, I know now that no fees come specifically from insurers, although some of those I represent had the benefit of after-the-event insurance. I wanted to make that clarification before I began my remarks.

I will press the Committee to Divisions only on amendments 91, 94 and 32 in the first group. My remarks will mainly be on amendments 91 and 92, but I will touch on the other amendments.

Amendment 92 deals with something we are very concerned about—I will return to it in a moment—and amendment 91 is also about adequate information and notification. Amendment 94, on which I intend to divide the Committee, is about an independent evaluation of the operation of the expanded written procedures. Amendment 32 also relates to independent evaluation and has been grouped on that basis.

[The Chair]

Order. May I make it clear that we are dealing with amendments 92 and 91 to clause 23? We will have separate debates as listed on the selection list: on amendment 93 on its own, and on amendments 94 and 32 and new clause 15. I am grateful to the hon. Gentleman for telling us which amendments he wants the Committee to divide on, but at the moment we are debating amendments 92 and 91.

[Nick Thomas-Symonds]

I am grateful, Mr Stringer. I will confine my remarks to those two amendments. I was trying to be helpful; it is a slight curiosity that although amendment 32 relates to clause 34, it is grouped with the others because it relates to independent evaluation. That is the point I wanted to clarify.

The Opposition very much appreciate the need for greater efficiencies throughout the justice system, but to ensure that our justice system is just, proportionate and accessible, it is of the utmost importance that there be access to justice—access for the most vulnerable citizens in our communities, whether they are witnesses, victims or, indeed, the accused. It is well established that high numbers of people who come into contact with our criminal justice services have multiple needs, many of which are directly related to their ability to interact with Her Majesty’s Courts Service in a meaningful and effective manner using technology. To ensure that all defendants—especially the vulnerable, including children and those who suffer from mental health issues and may have addictions or learning difficulties—do not fall prey simply to the exigencies of swift and efficient resolution, robust safeguards have to be in place to ensure informed decision making and a comprehensive understanding of the nature of the decisions.

Clause 23 includes the ability of the defendant to give a written indication of their intention to plead guilty or not guilty. The aim is to save time and money. In subsection (4) there is already a provision for defendants to be given information about the written information procedure, how it works and the consequences, but we believe, in accordance with representations we have had from a variety of stakeholders, including the Bar Council, the Law Society, Justice, and the Magistrates Association, that the wording is not as explicit as we would like it to be. In addition, we wish to ensure that there is a user-friendly way in which the language is expressed. It is vital that people clearly understand their right to legal assistance before making a decision, to understand their options before they follow the online process; and, critically, that the defendant is aware of the consequences of indicating a plea in writing.

There is an additional concern that written procedures will lead to more unrepresented defendants in our system. Research by Transform Justice suggests that entering the plea is one of the points in the system where those without a lawyer are at their most disadvantaged. Unrepresented defendants did not understand when they had a viable defence and should plead not guilty, but that works in reverse as well: people can plead not guilty when the evidence against them is overwhelming, thus losing credit for an early guilty plea.

Furthermore, there are concerns that under the new written procedures defendants will no longer have access to the informal support network in courts, which includes clerks and ushers in addition to legal counsel. It is vital that we at least seek to replicate such support in the written procedures with an option to stop and seek legal advice at each stage. We need to prevent a situation where the defendant could reach the sentencing stage of their case before even seeing a judge or magistrate and for there to be a risk that a conviction should not have been entered. Of course, that could ultimately lead to an outcome that is in nobody’s interest: a miscarriage of justice.

In subsection (5) there is provision for how and by whom written information may be given to the defendant, but, again, concern has been raised by Transform Justice about the minimum levels of training that individuals will receive to ensure that they are appropriately qualified to offer advice on such complex issues. It is sometimes hard to imagine a situation in which representatives would not be in that position. We all have to try to ensure that they are in a position where we can serve the interests of justice.

Clearly, there are concerns. I refer specifically to amendment 92. Justice and the Prison Reform Trust are concerned in relation to persons who are unable to follow written procedures because of their particular needs. Many people in the justice system can lead chaotic lives for a variety of reasons and have complex needs, including mental health needs and/or learning difficulties. Others may be partially or wholly unable to read or write. There is also a concern that defendants and witnesses are reluctant to declare, or may not even be aware of, a disability, and online and virtual processes can exacerbate that assessment challenge. We are concerned about the risk that a vulnerability will be missed, and we certainly want to ensure that those who have to deal with it are able to do so. There is also a concern about the incentivisation of guilty pleas owing to the ease of simply responding to written options. I hope I have set out some of the concerns in relation to clause 23.

We suggest that the two amendments in this group—the first, amendment 92, is about adequate information; the second, amendment 91, is more specific, on the notification of the right to legal assistance, consequences of a plea and notification of plea procedures available—would deal with some of the concerns that I have outlined and would be sensible for the Government to adopt.

[The Minister for Courts and Justice (Sir Oliver Heald)]

It is a great pleasure to serve under your chairmanship again on such a momentous day, Mr Stringer. I put on the record my gratitude to the Ministry of Justice officials who have put so much work into briefing me and helping me with this Bill. I thank them all very much indeed.

I commend the hon. Member for Torfaen and his hon. Friends for seeking to ensure, in proposing amendments 92 and 91, that our planned reforms to pre-trial criminal procedures are fair, transparent and as straightforward as possible. I share the concerns about protecting the principles of justice. I hope that I can reassure them that the safeguards they seek are to be provided and are catered for by the Bill.

The first thing to say is that engaging with the written information procedure will always be entirely optional: defendants will always be free to opt out for a court hearing if that is their wish. The court will always retain the discretion to hold a hearing if it thinks that is necessary. Every defendant will be given a hearing date at the same time as they are invited to engage online. They will be provided with enough information to make an informed choice. If they choose not to engage online, they can simply attend the hearing that they have been notified about.

Clause 23(4), mentioned by the hon. Gentleman, states that the criminal procedure rules may specify what information is to be given to defendants about the nature of the written information procedure and the consequences of following it as well as about seeking legal representation. It states that this information can also be given to a parent or guardian where a defendant is under 18.

The Criminal Procedure Rule Committee, independent of the Government, is chaired by the Lord Chief Justice and is full of expertise, given that it has representation from other judges, magistrates, justices’ clerks, barristers, people from voluntary organisations and so on. It will have the power to stipulate the information that it considers to be pertinent to the defendant’s ability to make an informed choice. We believe that it is appropriate to give that committee the power because it has that expertise, and also because it will be able to refine the rules once it sees how the written information procedure works in practice. Section 69(4) of the Courts Act 2003 already requires that the rules be accessible, fair, simple and efficient. Those rules, of course, come before Parliament as secondary legislation.

In terms of accessibility, Her Majesty’s Courts and Tribunals Service is determined that the written information procedure shall be straightforward and comply with government digital service accessibility standards. User research has been at the heart of developing the technology. There will also be assisted digital provision for those, mentioned by the hon. Gentleman, who are unable to use digital services; they will be able to get help either over the phone or in person if they need it. I commend the hon. Gentleman for seeking reassurance and hope that I have provided it. On that basis, I ask him to withdraw the amendment.

[Nick Thomas-Symonds]

On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Thomas-Symonds]

I beg to move amendment 93, in clause 23, page 21, line 6, at end insert—

“(3A) Where a person is unrepresented the written information procedure will only apply if the person is charged with a summary, non-imprisonable offence.”

This amendment ensures the written information procedure can only be used in limited circumstances in cases where the defendant is unrepresented.

I will be brief in my remarks on this amendment, having set out some of my concerns in my previous remarks. Amendment 93 states specifically that the written information procedure can be used only in limited circumstances in cases when the defendant is unrepresented. It deals with the Opposition’s long-standing concern about the increasing number of unrepresented people in our courts system and the increasing number of unrepresented people coming into contact with these new procedures. The restriction is a sensible measure to enact at this stage, and I commend it to the Minister.

[Sir Oliver Heald]

Again, I commend the hon. Gentleman on putting forward a protection, but I hope to be able to satisfy him that the Bill tackles the issue.

I start by saying that I agree it is desirable for defendants to seek legal representation in the case of serious crimes. Engaging with the court online at pre-trial stages will be voluntary, and if a defendant wants to speak to a lawyer at a hearing before indicating a plea, he will be perfectly entitled to do that. Similarly, if he wants to obtain legal advice before indicating a plea online, he can do that. The measure does not fundamentally undermine the current system. In fact, it is probably better.

It is also relevant that, save when specific procedures apply in respect of summary offences—those are very limited—the defendant will have to enter a plea at the court hearing rather than simply indicating what their plea is online. So before trial or sentencing, a plea will have been entered at court.

If a defendant withdrew a previously indicated guilty plea, the previous admission of guilt could not be admitted as evidence in the proceedings, and no defendant who attended a court hearing rather than engaging online would be disadvantaged for the purposes of the early guilty plea discount.

Amendment 93 is undesirable to some extent because it would restrict the defendant’s right to self-representation, which has always been there, and I ask the hon. Gentleman to withdraw the amendment.

[Nick Thomas-Symonds]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 91, in clause 23, page 21, line 13, at end insert—

“(4A) Criminal Procedure Rules must include provision for a person charged with an offence, or a parent or guardian of that person, to be given in writing—

(a) notification of a defendant’s right to legal assistance;

(b) notification of plea procedures available, not limited to the written information procedure;

(c) an explanation of the consequences of indicating their plea in writing.

(4B) Information provided under subsection (4A) must be presented in an accessible format using clear language.” —(Nick Thomas-Symonds.)

This amendment ensures defendants receive adequate information and notification about the written information procedure, including alternative plea procedures and the consequences of indicating their plea in writing.

Question put, That the amendment be made.

--- Later in debate ---

[Nick Thomas-Symonds]

I beg to move amendment 94, in clause 23, page 22, line 13, at end insert—

“(11) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of the operation of the expanded written procedure made under this section and shall lay the report of the evaluation before each House of Parliament.”

This amendment ensures the expanded use of the written procedure is reviewed within two years.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 32, in clause 34, page 33, line 22, at end insert—

“(1A) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of matters under section 34 and shall lay the report of the evaluation before each House of Parliament.”

This amendment ensures the Secretary of State will undertake a review within two years of the Bill’s provisions relating to public participation in proceedings conducted by video and audio.

New clause 15—Review of expansion of availability of live links—

“( ) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of the expansion of availability of live links in—

(a) criminal proceedings under section 32, and

(b) other criminal hearings under section 33,

and shall lay the report of the evaluation before each House of Parliament.”

This new clause ensures the Secretary of State will undertake a review within two years of the Bill’s provisions to expand the availability of live links in criminal proceedings and other criminal hearings.

[Nick Thomas-Symonds]

The amendments and new clause deal with independent evaluation. Amendment 94 is about independent evaluation of the operation of the expanded written procedure, and it would require the Government to lay the report of the evaluation before each House of Parliament within two years. I referred previously to amendment 32; it relates to the independent evaluation of the matters in clause 34, which deals with public participation in proceedings conducted by video and audio. New clause 15 also concerns the principle of review. It is about the expansion of the availability of live links. Again, there would be an independent review within two years of the coming into force of the Act, and that would have to be laid before both Houses of Parliament.

The amendments are sensible, and the Government should not be afraid of them. We are all united in our wish that there should be access to justice. We are of course aware of, and embrace, the new technology that is available. However, two arguments arise. First, we should ensure that there are proper safeguards to protect people, and secondly we should evaluate how the system works as we take it forward.

We heard substantial evidence on the first day of the Committee, and there was also substantial written evidence, much of which highlighted various worries. A two-year review would not in any way impede the Government’s progress on the central aspects of the Bill, but it would ensure that the Government were held to account properly for whether the measures work as we want them to and do not impede access to justice. It would also be a useful reference point for the Government to look again at where the system was not working as well as it should.

[Sir Oliver Heald]

Again, I acknowledge the concerns that have been expressed. I support the idea of reviewing and monitoring measures put in place in legislation. However, the proposals have all been developed alongside extensive user research, and we already intend to review and monitor the new processes on a continuing basis to make sure that they are used properly. We consider that that iterative approach is better than conducting a one-off evaluation of the matters that we are discussing.

We also have plans to monitor performance data and gather feedback on all our new systems. Both Her Majesty’s Courts and Tribunals Service and the Ministry of Justice publish annual reports and accounts, reviewing performance against the year’s priorities and objectives, which are available to Parliament and the public. Defendants engaging online will be given the same information and warnings that they would receive in court, and will have access to the same legal advice. Of course, the court has discretion to conduct its proceedings at a hearing whenever it wishes.

The measures concerning audio and video technology in the criminal courts are very specific about the circumstances in which live links and virtual hearings may and may not be used, so sentencing hearings may not take place wholly as audio hearings. We have also invited the Criminal Procedure Rule Committee, which I mentioned before—an independent body chaired by the Lord Chief Justice—to consider the new powers and whether the current rules should be amended to set out additional factors that the court should consider when deciding the appropriate mode of hearing. The court will always have the final say on that, and assisted digital provision will be in place to support users to interact with Her Majesty’s Courts and Tribunals Service using digital channels, and to support access to the necessary technology and digital skills, so that it can be easily used.

I turn to public participation. Open justice is a fundamental principle of our justice system. It is vital that we maintain transparency, which is why we propose to enable access to fully virtual hearings that do not take place in a physical courtroom, using terminals, which will be located in court buildings across England and Wales. We have conducted extensive research with stakeholders to help develop our proposals, and we will be testing the provision with court users.

As we make virtual hearings available, HMCTS will carefully monitor observer demand to ensure that we are providing the appropriate levels of access. We anticipate that observer numbers for virtual hearings will generally be low but we will ensure, as far as we can, that provisions are flexible in order to accommodate interested observers of a virtual hearing.

I hope I have been able to reassure hon. Members that the appropriate arrangements and safeguards are in place, and that the written information procedure of virtual hearings will be used effectively and appropriately and to enable access to fully virtual hearings.

[Nick Thomas-Symonds]

I intend to push amendment 94 to a vote.

Question put, That the amendment be made.

Division 5

Ayes: 4

---

Labour: 3
Plaid Cymru: 1

Noes: 7

---

Conservative: 5

[Nick]

Thomas-Symonds: I beg to move amendment 95, in clause 23, page 22, line 13, at end insert—

“(11) Persons under the age of 18, when charged with the relevant offence, are exempt from this section.”

This amendment removes children from provisions allowing defendants to engage with a court in writing.

[The Chair]

With this it will be convenient to discuss Government amendments 51 and 50.

[Nick Thomas-Symonds]

I will not unduly delay the Committee on this amendment, because I intend to speak in a little more detail on clause 30, which relates to the same matter. None the less, we appreciate the opportunity to remark on amendment 95, which I do not intend to push to a vote. It is about removing children from the provisions allowing defendants to engage with a court in writing.

There are a number of concerns about those provisions, which I hope the Minister will acknowledge and be able to deal with to an extent. For example, there is nothing in the Bill to ensure that children’s parents or guardians will be informed about the written procedure before a child indicates their plea. Evidence seems to suggest that children are more likely than adults to enter guilty pleas for offences that they have not committed. Our concern is that indicating pleas online will make that significantly worse.

We worry about peer pressure to indicate a guilty plea, for example, in cases in which an offence is committed by a group of children and a particular child is being bullied. We are also concerned by something that came through in both the Taylor and Carlile reviews, with which the Minister will be familiar—the fact that children do not necessarily understand court proceedings and their implications.

Our real worry is about children participating in court proceedings in writing, without any real understanding of them. It is not clear how written proceedings will be intelligible to children who may be as young as 10. That is before we even consider children who offend who may have difficulties in communication, and of course one in three children in custody have special educational needs. We worry that there is a problem in children’s engagement in the criminal justice system in any event, which will be exacerbated by their involvement in written procedures. I will not go any further at this stage, because I will come back to this point on clause 30, but that is the outline of my concerns and why I commend amendment 95 to the Committee.

[Sir Oliver Heald]

I will speak to Government amendments 51 and 50, but amendment 95 raises the important issue of whether the written information procedure in the Bill should apply to young defendants. Government amendment 51 clarifies how the court might proceed if a youth is on the cusp of turning 18, and Government amendment 50 looks at how the expanded power to remit cases from the youth court should apply when a defendant turns 18.

The written information procedure means that a person charged with offences may choose to give specified information to the court, including an indication of a guilty or not guilty plea. The plan is that that will usually occur online through the Government’s digital channel, which is a unified digital case management system that is currently being developed by HMCTS. Although young defendants may therefore indicate a plea earlier than now, amendment 51 makes sure that the court will retain discretion in relation to those on the cusp of turning 18 so that it can still treat them as youths, because they will no longer have to wait until the first courtroom hearing. Therefore when a defendant turns 18 having previously indicated a plea online, the youth court may still treat them as a youth and deal with them using the powers under the Children and Young Persons Act 1963.

Amendment 50 clarifies how the expanded power to remit cases from the youth court to another criminal court will apply when a defendant turns 18 between charge and trial. If a defendant turns 18 post-charge and the youth court decides pre-trial to remit the youth to the mainstream magistrate’s court, the receiving court will not be able to continue to treat them as a youth, and for example use the more extensive custodial powers of a youth court. As a result, defendants will have greater certainty about what will happen as a result of the youth court’s decision to remit. They will therefore be in a better position to decide whether at the time of remittal they want to elect for jury trial. From time to time the age of a defendant may be unclear, and there are young defendants who, for example, are also victims of human trafficking. In some such cases, fresh information may arise later on that allows the court to more accurately determine age. Amendment 50 caters for those scenarios and allows a case to be remitted back to the youth court.

Turning to Opposition amendment 95, the purpose of clause 23, combined with clause 30 and schedule 3, is to reduce the number of times young defendants and their parents or guardians need to travel to court. That is part of the distinct service model that is being developed for young persons. For example, when a case must be sent to the Crown court because it can be tried only with an indictment, young defendants will no longer have to travel to a youth court to allow that simple process to occur.

That is important, because there has been a 70% decline in the number of proceedings against young people in the criminal courts since 2006-07. Although that reduction is welcome, its scale does pose logistical challenges. In some areas, sittings of the youth court are in fewer locations and are already occurring less frequently, causing delays. Allowing case management at the pre-trial stages of cases to take place outside the courtroom means that young defendants ought only have to travel to court for a trial or for a sentencing hearing. Through its six-year reform programme, HMCTS is developing a specific service model for young defendants, including those who provide information in writing. It is a distinct youth justice system for children and young persons. Young defendants will therefore continue to be subject to procedures and processes that are different from those for adults.

The Bill provides a number of safeguards applicable to young defendants who choose to provide information in writing. I will not say more about those at this stage, as we have clause 30 to come. In the light of those safeguards and the distinct service model that is being developed, I ask the hon. Gentleman to withdraw amendment 95.

[Nick Thomas-Symonds]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24

Charge by police or prosecutor: non-appearance in court after guilty plea

Question proposed, That the clause stand part of the Bill.

[Sir Oliver Heald]

The purpose of clause 24 is to extend the current procedure of pleading guilty in writing, which is in section 12 of the Magistrates’ Courts Act 1980, to summary offences that are charged by the police. Under the procedure, a defendant can indicate a guilty plea in writing, and then the court can convict him or her of the summary offence in question without the defendant’s having to appear before it for a hearing.

Under existing law the procedure applies only to summary offences begun by summons or written charge. Clause 24 provides that a defendant can adopt the procedure in cases begun by police charge. In all cases, opting to plead guilty in writing and to be convicted in absence will remain entirely voluntary. Clause 24 reaffirms and continues the important safeguard that a magistrates court cannot sentence a defendant to custody, or impose a driving disqualification, without first bringing him or her to court.

Under the clause it will also remain the case that the section 12 procedure can apply only where the defendant has been served with the information about the charge and the evidence against him. Where there is reason to do so, clause 24 allows the court, relevant prosecutor, or police to decide not to apply the procedure whereby a defendant pleads guilty and is convicted in their absence, so that they are brought before the court to enter a plea.

Question put and agreed to.

Clause 24 accordingly ordered to stand part of the Bill.

Clause 25

Either way offence: choice of written procedure for plea before venue

[Nick Thomas-Symonds]

I beg to move amendment 98, in clause 25, page 24, line 7, leave out paragraph (d) and insert—

“(d) explain that, if the person chooses not to give a written indication of plea or fails to do so within 21 days of the date on which the document was sent, the court must proceed under section 17A upon the expiry of the 21 day period;”

This amendment gives greater clarity and certainty about the timeframe in which a court hearing must be held where a person does not give a written indication of plea.

The purpose of the amendment is to give greater clarity and certainty about the timeframe in which a court hearing must be held where a person does not give a written indication of plea. Clause 25 inserts into the Magistrates’ Courts Act 1980 a section that provides for the defendant charged with a summary, indictable or either way offence to have a choice to engage with the “plea before venue” procedure in writing, without having to attend court, provided that they have been equipped with certain information. Under the section, where the defendant indicates a guilty plea in writing, the offence is treated as if it were a summary offence.

In the case of a guilty plea, the defendant can be convicted without the hearing of any evidence, and the magistrates court can proceed to sentencing or refer the proceedings to the Crown court, if it considers its powers inadequate. Where the defendant indicates a not guilty plea in writing, they are given the choice of agreeing that the court should proceed to decide mode of trial outside court in their absence. Clause 25 also provides that where the defendant fails to give any written indication of plea, the proceedings continue in accordance with existing court-based procedures. There is a concern that that is likely to build in delay, rather than reduce it.

The clause provides a safeguard, in that it allows a defendant who has given an indication of plea in writing to withdraw it in writing at any time before the case is heard. However, it is our view that further safeguards should be added, to ensure that assistance is provided for those who are not able to engage with a written or online procedure. It is well established, as I mentioned in my remarks on clause 23, that high numbers of people in contact with the criminal justice system have multiple needs, many of which are directly related to their ability to interact with Her Majesty’s Courts Service in a meaningful and effective manner using technology. For example, literacy rates among prisoners are low, with about half at or below level 1 in reading, and four fifths at or below level 1 in writing.

It is generally acknowledged that between 5% and 10% of adult offenders have a learning disability of some kind, thus support is required in reading, writing, communication and comprehension. There is also a worry that someone with a learning disability before the justice system may be suggestible. We have to ensure that they are not in a situation where they fail to understand what they are accused of and the implications of decisions they are being asked to make.

There is a worry that someone may plead guilty in order to expedite proceedings in the hope of being allowed, for example, to leave custody and return home quickly, without appreciating the implications of entering a guilty plea.

Many people with mental health problems have conditions that fluctuate. That, of course, means that they may engage well with technology on one occasion but not on another. That can vary, not just day to day, but over the course of a day. It is vital that, where a defendant does indicate a plea, they must be able to choose between using a written, online or court procedure and that that is a legitimate choice, free of pressure or prejudice of any kind.

There are concerns that indirect pressure will be applied to defendants to opt for the written procedures by unduly delaying in-person proceedings. On that basis, I seek assurance that, where a person does not indicate his plea in writing or online, a clear and reasonable timeframe is offered in which a court hearing must be held. That is precisely what the amendment would do. It would make clear in circumstances where a person does not indicate his or her plea in writing or online that the timeframe of 21 days is given in which a court hearing must be held, so as not to discriminate against those who opt for an in-person hearing.

[Sir Oliver Heald]

The point underlying the amendment is, again, valid. Clearly, defendants will have to be told that, if they wish to indicate a plea online, they must do so before the date to which they have been bailed to appear at court. The time allowed for that purpose must not be so long as to lead to increased delay. However, the deadline set by reference to the date when documents were sent would not in my view work.

The date to which defendants are bailed after charge, pending their first court appearance, is governed by the criminal practice direction, issued by the Lord Chief Justice. It is significant that the date set for a hearing depends on the circumstances of the case and varies according to whether a guilty or not guilty plea is likely: respectively, 14 days or 28 days after charge.

The 21-day deadline specified in the amendment would expire a week before the hearing date in the case where a not guilty plea was expected or, less practically, a week after the date to which a defendant would be bailed to appear where a guilty plea was anticipated.

There are two conclusions. The first is that a single deadline, set by reference to the date when the documents were sent, would not work. The second conclusion is that, whatever deadlines may be suitable, it is probably not for primary legislation. I know that the Criminal Procedure Rule Committee has started to look at this matter. I therefore invite the hon. Gentleman to agree that this could more appropriately be prescribed in the criminal procedure rules and so ask for the amendment to be withdrawn.

[Nick Thomas-Symonds]

I hope that something like that will be prescribed in the criminal procedure rules, as indicated by the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 ordered to stand part of the Bill.

Clause 26

Either way offence: choice of written procedure for mode of trial

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to consider clauses 27 to 29 stand part.

--- Later in debate ---

[Sir Oliver Heald]

We have already had some discussion of the clause when considering amendment 95. The clause introduces schedule 3 to the Bill, which permits preliminary proceedings for defendants aged 10 to 17 charged with criminal offences to be conducted in writing. A person charged with offences may choose to give specified information to the court in writing, including the indication of a guilty or not guilty plea. It is planned that the giving of that information will usually occur online through a common platform—a unified digital case management system—currently being developed by Her Majesty’s Courts and Tribunals Service.

Through its six-year reform programme, Her Majesty’s Courts and Tribunals Service is developing a specific service model for young people, including those who provide information of the sort I mentioned in writing. That is in recognition of the fact that there is already a distinct youth justice system for children and young persons, with separate procedures and processes applying to them when they come to court. The future service model for young people takes account of the 70% decline in the number of young people proceeded against in the criminal courts since 2006-07. While that reduction is welcome, its scale poses the logistical challenges I have mentioned before, which can lead to delays; for young people, it is particularly important that cases are heard as quickly as possible.

The purpose of the clause and schedule is to reduce the number of times young defendants and their parents or guardians need to travel to court, so reducing the burden of travel. The Bill will allow for case management at the pre-trial stages of cases to take place outside the courtroom, so that young defendants preferably travel to court only for trial and sentencing hearings—for example, where a case must be sent to the Crown court, it will no longer require a court hearing to do so.

The Bill provides a number of safeguards applicable to young defendants who provide information in writing. For example, having regard to the circumstances of the case and the age of the young defendant, the court will ascertain whether the parent is aware of the written proceedings, and if not, will make them aware. The aim is to ensure that, taking into account the young defendant’s age and maturity, he or she is given enough information to make an informed decision when choosing to participate in the preliminary proceedings in writing. Courts must therefore also provide the young defendant, and as appropriate, their parents, with information that explains the written procedure, the choices available to them and the effects of those choices.

Where a plea of guilty or not guilty is indicated in writing, courts will also subsequently have to make sure, at the first hearing in the courtroom, that the young person has understood and confirms their written indication of plea before proceeding further. It is worth underlining that the young person is indicating their plea, not pleading in writing; they have to do that in court. As with any case involving a young defendant, when dealing with preliminary matters in writing, courts must have regard to the overarching statutory duties to prevent offending by young people and to have regard to their welfare.

[Nick Thomas-Symonds]

We oppose clause 30. As the Minister has indicated, we have already discussed children being involved in written proceedings when we discussed amendment 95 to clause 23 a moment or two ago. I am grateful for some of the safeguards the Minister has set out, but for the Opposition they remain insufficient. I indicated in our discussion about amendment 95 concerns about the awareness of parents and guardians, the likeliness of children entering guilty pleas, peer pressure and, most fundamentally, children being able to understand proceedings.

I want to deal specifically with the Taylor and Carlile reviews, with which the Minister will be familiar. The Taylor review, which was commissioned in 2015, looked at the youth justice system and was published in December last year alongside the Government’s response, which included a commitment to implement the spirit of the review. The Taylor review was highly critical of the court system, which it found was

“not set up to ensure the full participation of children in criminal proceedings.”

It should trouble the Committee that Taylor found that court procedures and outcomes are frequently not understood by children. He stated:

“On many occasions children leave the court confused by the outcome and need to have their sentence explained to them by a YOT”—

youth offending team—

“worker… Too often children are the passive recipients of justice and do not understand the process to which they have been subjected.”

In addition, he found that the youth justice system

“has a statutory aim to prevent offending, but the criminal courts are not equipped to identify and tackle the issues that contribute to and prolong youth offending… Magistrates frequently report that they impose a sentence without having a real understanding of the needs of the child, and they rarely know whether it has been effective.”

The phrase “frequently report” is important; it is not simply a problem that a minority worry about, but a frequent problem.

Taylor recommended the introduction of a new system of children’s panels to sentence children. Those panels would have greater powers to identify and tackle the causes of offending, and panel members would oversee a child’s progress. In 2014 a major review of the children’s court system, chaired by the noble Lord Carlile, made similar findings—particularly that children were not engaged in proceedings—and advocated a problem-solving approach.

The Opposition’s concern is that the Bill does nothing to rectify the very serious problems that both Taylor and Carlile identified. We worry that those problems of engagement, participation, understanding and comprehension will be made worse by introducing proceedings in writing in this way. Our position is therefore that clause 30 should not stand part of the Bill and should be deleted altogether.

[Sir Oliver Heald]

I agree with the hon. Gentleman that the reports to which he refers are well worth considering. The Government responded warmly to the Taylor review.

Young people lead their lives in a more online way than some of us older folk, so having an online procedure that explains things to young people, with the safeguard of their having to attend court so that they give only an indication of plea in writing—they do not actually plead—will help.

[Nick Thomas-Symonds]

On online procedure, in the initial evidence session Professor Susskind referred to the fact that children interact with one other in a very different way from the way they did 20 or 30 years ago. My only slight concern about that is that we often urge caution on children when they engage with people online, particularly when that online contact is transferred to offline contact.

[The Chair]

Order. I remind the hon. Gentleman that interventions should be short and to the point.

[Nick Thomas-Symonds]

We should therefore perhaps exercise some caution about the way that children engage online.

[Sir Oliver Heald]

I do not disagree with the hon. Gentleman about being cautious—as a Conservative, it comes naturally. Having said that, there are a range of safeguards in the Bill, for example the fact that the parents and guardians are involved and that the parent has to be made aware of the written proceedings if they are not already aware. That has to be investigated. The online procedure will explain matters, as well as the oral explanations that always take place in the youth courts.

We obviously do not agree about this, but I invite the Committee to support clause 30, which will help rather than hinder the cause of young people in the courts, and schedule 3.

--- Later in debate ---

[Sir Oliver Heald]

Clause 31 creates a power for the Lord Chancellor to make regulations to enable or facilitate the making of preliminary and enforcement decisions in criminal proceedings by a court on the papers—that is, without a hearing. Regulations may only be made under that power with the agreement of the Lord Chief Justice and will not be able to remove from the court the option of holding a hearing. The regulations may be used to amend primary or secondary legislation.

Courts already have an inherent power to determine matters on the papers in some circumstances, but existing provisions preclude that in certain cases. In order to give the court greater flexibility to manage criminal proceedings, it may be appropriate to remove those barriers, so that the court can decide whether a hearing is required. I should emphasise that any regulations made under this power will be subject to affirmative resolution. Both Houses of Parliament will therefore have the opportunity to scrutinise any proposed change and will be invited to approve it.

Given the wider court reform proposed in the Bill, we believe that the merits of removing legislative requirements for a hearing will be best assessed once the reforms have come into force and have bedded in. It is therefore not possible to say exactly which matters we would like to enable the courts to deal with on the papers, but Members can be assured that the necessary safeguards are in place to ensure that this power will only be exercised where it is appropriate to do so.

[Nick Thomas-Symonds]

It is not my intention to oppose the clause, but perhaps the Minister could comment on one or two concerns. It is doubtful whether this provision would save time overall in highly complex cases, but I can see the case for it in numerous other eventualities. We should always remember that case management decisions are judicial, not administrative, decisions. What flows from that is that we have to ensure that the relevant information is available to the judiciary in deciding that, and that interested parties always have the opportunity to contribute, should they wish. Of course, in this, as in other situations, the court has to be able to respond to the individual circumstances of a particular case.

[Sir Oliver Heald]

I agree that these are judicial decisions, but I believe there is a case for flexibility. Where appropriate, any legislation that requires that a pre-trial or enforcement matter be determined at a hearing, if that is to be removed, the courts can still on a case-by-case basis decide whether a hearing is required. That, of course, is a provision that requires the support not just of the Lord Chancellor but of the Lord Chief Justice. I certainly take the hon. Gentleman’s point but still commend the clause to the Committee.

Question put and agreed to.

Clause 31 accordingly ordered to stand part of the Bill.

Clause 32

Expansion of availability of live links in criminal proceedings

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Sir Oliver Heald]

I beg to move clause 32.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Schedule 4

Live links in criminal proceedings

[Nick Thomas-Symonds]

I beg to move amendment 104, in schedule 4, page 77, line 14, at end insert—

“(aaa) in the case of a person who has not attained the age of 18 years, a live audio link or a live video link is in the individual’s best interests,”

This amendment ensures the court will only give direction to under 18 year olds to take part through a live audio link or a live video link, when it is in their best interests.

[The Chair]

With this it will be convenient to discuss amendment 110, in schedule 5, page 87, line 30, at end insert—

“(aa) in the case of a person who has not attained the age of 18 years, a live audio link or a live video link is in the individual’s best interests,”

This amendment ensures the court will only give direction to under 18 year olds to take part through a live audio link or a live video link, when it is in their best interests.

[Nick Thomas-Symonds]

The amendments seek to ensure that the court will give directions for under-18-year-olds to take part in either live audio or live video links only when it is in their best interests to do so.

Schedule 4 expands the court’s powers under the Criminal Justice Act 2003 to use technology across a wider range of hearings and participants. The provisions allow for the conduct of certain preliminary aspects of criminal proceedings to be conducted in writing, as we have previously discussed. The court is required to be satisfied that the live link is in the interests of justice before making one, and that parties are given the opportunity to make representations to the court as to whether to make such direction.

Paragraph 2(7) of the schedule specifies that the court must give reasons for not giving live link directions, which we say reverses the presumption in favour of physical hearings and is of real concern. We believe it should be standard that for a fair hearing all participants are in the same room, although, of course, alternative forms can be considered alongside that.

For many stakeholders—in the experience of the Bar Council and the Law Society, for example—virtual hearings can diminish the ability of the parties to follow proceedings and understand each other. That can inevitably have consequences for the quality of justice as it is done and as it is seen to be done. Court etiquette—I say this from experience—can be difficult to follow at the best of times, and that is exacerbated if the individual cannot follow visual and non-verbal cues.

Amendments 104 and 110 focus, again, on children and under-18s. I set out in previous remarks the issue with children engaging and participating in court proceedings, as recognised in the Carlile and Taylor reviews. Children in the justice system exhibit especially high rates of communication difficulties, which should trouble us. Those problems will be exacerbated by the expansion of the use of video and audio links. As I indicated in my overly long intervention on the Minister earlier, while I totally accept that children now engage with one another online far more, we none the less have to treat that with caution, particularly when we are talking about children and live links.

The Youth Justice Board issued a statement voicing its concerns about this in April 2016, which is worth pausing on. It said that

“a ‘digital by default’ approach to court hearings is not appropriate for children and young people. Consideration must first be given to the nature of the hearing in question. The use of video links is not appropriate for trial, sentencing or appeal hearings involving children. Suitability of a preliminary hearing for video technology must be assessed on a case-by-case basis and be subject to a robust decision-making process involving the judiciary, the young person’s youth offending team, the defence representative, the CPS and other relevant parties. The assessment must take into account the individual needs and requirements of each child or young person, including whether the young person has any speech, language or communication needs. Where the use of digital technology is deemed suitable, defence representation must be guaranteed.”

We must therefore guard against the creation of a new legal fiction that participation by audio link is the absolute equivalent of in-court participation.

Under schedule 4, courts are prohibited from refusing or revoking bail at a live audio link hearing, and they cannot deal with a person for contempt of court at hearings that are also audio attended. We worry that those restrictions are not extensive enough and would like to see further safeguards, to avoid mission creep in the scope of offences under these provisions.

Transform Justice has raised concerns regarding the lack of examination of the equality aspect of virtual courts, particularly for vulnerable defendants. As I set out in my earlier remarks, victims, defendants and witnesses can be reluctant to declare, or may not be aware of, their disability. We worry that vulnerability can be missed, and virtual processes exacerbate that.

The aim of the virtual courts proposals is to improve efficiency and reduce costs, but there has been little in the way of consultation, research or costing to establish that the measures will achieve those aims. In one of the Committee’s initial sittings, we discussed the 2010 evaluation of the virtual court pilot, and I recall the Minister having a discussion with one of our witnesses. I appreciate that that occurred in 2010, and we had a subsequent discussion as to how technology has evolved since, which I take on board, but the concern remains that the evidence available does not point to as positive an outcome as we all wish for.

Indeed, the evaluation of the virtual court pilot concluded that virtual courts are more expensive and may lead to more guilty pleas, longer sentences and impeded lawyer-client communication. The Bar Council said:

“We have seen no evidence in the Impact Assessment, or elsewhere, to support the assertion that virtual hearings confer benefits on victims and witnesses. Whilst some may be less likely to have to travel to court, it is not clear what proportion of victims and witnesses would instead prefer to have their ‘day in court’.”

There is also a concern regarding the reliability and fitness for purpose of IT and product design. The Government have to be held to account on that. Indeed, the recent “Justice Denied” report by the TUC showed that only 4% of staff who responded to a survey agreed that IT in courts works effectively. We worry that the provision has not been effectively costed.

--- Later in debate ---

[Sir Oliver Heald]

Again, I think that, across the Committee, we are seeking to achieve the same result. The Government sympathise with and share the intention behind the amendment. We want young people only to take part in proceedings that use such technology where it is appropriate for them to do so. I will reassure Committee members as to how the provisions in the Bill, and other protections, will achieve that objective.

Under the provisions in the Bill, a court may direct that a young person participate through a video link only where it considers that it is in the interests of justice for that person to do so. In exercising that power, the court also has a statutory duty under section 44 of the Children and Young Persons Act 1933 to have regard to the welfare of the young person. Furthermore, safeguards set out in the Bill will help to make sure that the court has adequate information with which to make that decision.

Schedules 4 and 5 provide that the court can make a direction to use a live link in respect of a young person only where the relevant youth offending team has been given the opportunity to make representations. Overall, it would be considered to be in the interests of justice for a young person to participate in proceedings through a live link where it could also be said that it was in their best interests to do so. The interests of justice test will consider the entire proceedings, and a detrimental impact on the young person would be, in my view, inconsistent with considerations of justice and having regard to the welfare of the young person.

Of course, where the defendant, victim or witness would not give their best evidence through appearing in person in the courtroom, it would likely neither be in the interests of justice or in their best interests to not use a video link. Conversely, where a young defendant’s mental condition is so disturbed that his or her production would be a significant detriment to his or her welfare, it would be difficult to argue that the use of the video link as an alternative—on medical advice—might not be in his or her best interests.

It is also worth noting that the recent amendments made by the Lord Chief Justice to the criminal practice directions of 2015 currently state that it will usually be appropriate for the young person to be produced in person in court. The directions suggest, where it may be appropriate, using video links on a case-by-case basis. They also refer to the need to ensure that the court can engage properly with the youth, and that the necessary level of engagement can be facilitated with the youth offending team, the defence representative and an appropriate adult. Those are the protections in place.

The hon. Gentleman asked whether there will be more use of the live link, but I think the key point is that the means through which a young defendant attends court proceedings will be and should be determined on a case-by-case basis. Courts have to consider whether it is in the interests of justice for a young defendant to participate, and I think we can rely on our courts to take those decisions with great care. Personally, I think one of the strengths of our independent legal system is that we have such expertise in our youth courts.

The 2010 study was mentioned, but 2010 is a lifetime ago in modern technology. That study did not cover the range of virtual hearings that we are talking about; it simply covered cases that were dealt with between the police station and the magistrates court. It came out in the evidence that the hon. Gentleman mentioned—many witnesses made this point—that that was not comparing apples with apples. Well, they did not use those words, but that is the way I put it. I therefore ask hon. Members to withdraw amendments 104 and 110.

[Nick Thomas-Symonds]

I am still not entirely satisfied, so I will press the amendment to a vote.

Question put, That the amendment be made.

Division 7

Ayes: 3

---

Labour: 2
Plaid Cymru: 1

Noes: 6

---

Conservative: 4

[Nick Thomas-Symonds]

I beg to move amendment 105, in schedule 4, page 78, line 36, leave out “not”.

Together with amendments 98 to 109, this amendment would require that reasons be given for issuing live link directions, rather than for not giving them.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 106, in schedule 4, page 78, line 38, leave out “not”.

See explanatory statement for amendment 97.

Amendment 107, in schedule 4, page 78, line 41, leave out “not”.

See explanatory statement for amendment 97.

Amendment 108, in schedule 4, page 78, line 43, leave out “not”.

See explanatory statement for amendment 97.

Amendment 111, in schedule 5, page 89, line 1, leave out “not”.

See explanatory statement for amendment 97.

Amendment 112, in schedule 5, page 89, line 3, leave out “not”.

See explanatory statement for amendment 97.

Amendment 113, in schedule 5, page 89, line 6, leave out “not”.

See explanatory statement for amendment 97.

Amendment 114, in schedule 5, page 89, line 8, leave out “not”.

See explanatory statement for amendment 97.

Amendment 115, in schedule 5, page 91, line 10, leave out “not”.

See explanatory statement for amendment 97.

Amendment 116, in schedule 5, page 91, line 13, leave out “not”.

See explanatory statement for amendment 97.

Amendment 117, in schedule 5, page 93, line 1, leave out “not”.

See explanatory statement for amendment 97.

Amendment 118, in schedule 5, page 93, line 3, leave out “not”.

See explanatory statement for amendment 97.

Amendment 119, in schedule 5, page 93, line 6, leave out “not”.

See explanatory statement for amendment 97.

[Nick Thomas-Symonds]

This group of amendments seeks to require courts to give reasons for issuing live link directions rather than reasons for not issuing them. Our position is straightforward: we do not want a “digital by default” system to arise. We believe that the best method of achieving justice is having all participants in the same room. We suggest that that is a simple, well established proposition on which we should all be able to agree.

The amendments would still allow live links where appropriate, but they would build into the Bill an assumption in favour of the physical majesty of the courtroom rather than of digital technology being used most of the time. I suggest that the amendments would create the right balance in our court system, so that courts are able to utilise new technology when it is appropriate to do so but we do not lose sight of the fact that having all participants in the same room is the most appropriate way of producing a just outcome.

[Sir Oliver Heald]

I understand that hon. Members are concerned, as the hon. Member for Torfaen said, that the Bill will have the effect of making virtual hearings the default mode, but I assure them that that is not the case. Instead, it will enable the use of virtual hearings in a wider range of circumstances to improve accessibility and efficiency. Live link technology is already used by the courts to great effect. It reduces inefficiencies for court users and time-pressed citizens, and it makes the court process less intimidating for vulnerable or intimidated witnesses and young people, as we recently discussed.

Asking the court to give its reasons for not giving a live link direction is the established practice—for example, in respect of an accused person in custody at a preliminary hearing under section 57B(6) of the Crime and Disorder Act 1998. Although it does not create the presumption that live links must be used, it encourages the court at least to consider whether it would be more proportionate or in participants’ interests to make use of live audio or video link technology. With the status quo of the court hearing there is really no need for that particular measure.

We want to encourage the court and other participants to make greater use of live audio and video links, but at the same time there will be rigorous safeguards in place to ensure that those are used only appropriately and that defendants get a fair hearing. The court will always have the final say on mode of hearing and will need to be satisfied that it is in the interests of justice and compatible with the defendant’s right to a fair trial, having considered representations from the parties and, in the case of young people, the youth offending team.

I hope I have been able to reassure hon. Members that asking the court to give its reasons for not issuing a live link direction is the established practice. It will not have an impact on the court’s determination and it will, of course, provide useful information to Her Majesty’s Courts and Tribunals Service on what limitations there may be to the use of live audio and video links, according to the reasons given by the court. I therefore ask the hon. Gentleman to withdraw the amendment.

[Nick Thomas-Symonds]

We think that this is a very important point of principle in the Bill, so I propose to push amendment 105, but none of the others, to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Nick Thomas-Symonds]

I beg to move amendment 109, in schedule 4, page 79, line 5, leave out paragraph (10) and insert—

‘(10) A court may not deal with bail, sentencing or any hearing where a remand decision is to be made, other than for the purposes of giving evidence, through a live audio link.”

This amendment would prevent live audio links being used in bail or sentencing proceedings, or at any hearing where a remand decision is to be made, except for the purposes of giving evidence.

The amendment is on the same theme of safeguards with regard to the use of live links. It would prevent live audio links from being used in bail or sentencing proceedings or at any hearing where a remand decision is to be made, except for the purposes of giving evidence.

We put this forward as part of the battery of concerns about the use of live links. Live links can be utilised by courts to speed up a process but we are firm believers in robust safeguards, as shown again in this amendment.

[Sir Oliver Heald]

We say that the safeguards are there. Schedule 5 provides that sentencing hearings may not take place with participation through a live audio link, except to enable persons other than the defendant to give evidence where there are no suitable video facilities available. We believe that has the same effect as that intended by the amendment.

In relation to live audio links more generally, they can be used at a hearing where conditions of bail are in dispute but not the principle of bail. The protections in schedule 5 deal with the points that have been raised and I ask the hon. Gentleman to withdraw the amendment.

[Nick Thomas-Symonds]

Having pressed amendments 104 and 105 to a vote, I do not propose to divide the Committee further on amendment 109. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 33 ordered to stand part of the Bill.

Schedule 5

Live links in other criminal hearings

[Sir Oliver Heald]

I beg to move amendment 52, in schedule 5, page 96, line 14, leave out “accused” and insert “offender”.

The amendment makes the terminology of this provision consistent with other provision in Part 1 of Schedule 5.

--- Later in debate ---

[Sir Oliver Heald]

The clause replaces the single justice procedure notice with the new written procedure notice. The new notice will be used to initiate proceedings that may proceed as now or, if eligible and appropriate, by way of the new automatic online conviction and standard statutory penalty procedure introduced by clause 36. If it is offered, defendants will need to actively opt into using the procedure and will be provided with all the information they need to make an informed decision about whether to use it.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36

Automatic online conviction and standard statutory penalty

[Nick Thomas-Symonds]

I beg to move amendment 101, in clause 36, page 35, line 6, leave out subsection (2) and insert—

‘(2) The person is convicted of the offence by virtue of—

(a) accepting the automatic online conviction; and

(b) not revoking this acceptance during the period of 14 days following, but not including the day of, acceptance.”

This amendment would enable a person convicted of an offence and who accepts the automatic online conviction to revoke that decision within a period of 14 days.

[The Chair]

With this it will be convenient to discuss amendment 102, in clause 36, page 35, line 13, at end insert—

“(ba) the accused has been made aware of their right to seek legal advice;

(bb) the consequences of a guilty plea have been clearly explained;

This amendment ensures individuals are made aware of their rights before they accept an online conviction.

[Nick Thomas-Symonds]

This pair of amendments relates to the theme of safeguards, which the Opposition are attempting to push throughout the Bill’s passage.

Amendment 101 would enable a person convicted of an offence who accepts the automatic online conviction to revoke that decision within a period of 14 days. Amendment 102 would insert a provision to ensure that individuals are made aware of their rights before they accept an online conviction.

In the evidence we have had, stakeholders have expressed concerns about the creation of a new automatic online conviction process where a defendant who pleads guilty and agrees to be dealt with under the process would be convicted automatically and sentenced automatically. The Bar Council referred to concerns about a lack of provisions for ensuring the defendant’s knowledge of their right to legal advice; the range of offences in the scope of this scheme; and the Secretary of State’s power to put new offences in scope.

Under clause 36, the online conviction would be applicable to summary-only, non-imprisonable offences specified in a positive statutory instrument by the Secretary of State that would need to be approved by both Houses. Fines, compensation, costs, surcharges and, where relevant, driving endorsements could be included. Those would be fixed by order of different classes of offence and, potentially, different circumstances for the same offence. They would be specified in a statutory instrument under the negative resolution procedure.

Clause 36 inserts six new sections into the Magistrates’ Courts Act 1980. It is clear that the definition of offences in the “Transforming our Justice System” consultation has been shortened to summary, non-imprisonable offences. The definition no longer excludes offences where there is an identifiable victim, which removes an important safeguard for victims and should be remedied.

Adequate safeguards are also lacking to ensure that defendants are aware of the consequences of entering an online plea. That is vital if an offence results in a criminal record, which can have serious and long-term implications, such as restrictions on employment, travel and the ability to obtain insurance. The Opposition say that offences under the scope of the clause should be restricted to non-recordable offences only.

Of course, individuals may mistakenly plead guilty through lack of adequate or any legal advice, which is a concern. We therefore say that defendants must be made explicitly aware of their right to seek legal advice and of the implications of pleading guilty. Not providing such information could have very serious consequences for the defendant’s right to a fair trial and the quality of justice that they receive. For example, many defendants will not know that an offence such as fare evasion, which we believe will be under the scope of the online process, is significantly more serious than a minor motoring offence because of the intention to evade payment.

We are also concerned that the Bill gives the Secretary of State the authority to specify that any summary offence not punishable by imprisonment can be eligible for online conviction. That leaves the door open for an alarming expansion of the scope of offences included without proper scrutiny. Any extension of the range of offences beyond those that attract fixed penalty notices should be made the subject of consultation, at which stage a full evaluation of the existing scheme should be provided. Further concerns have also been raised by stakeholders—including Liberty, for example—that the clause would transfer to the Government the power to sentence individuals convicted, as opposed to the independent judiciary. Looking at the clause in the round, I suggest that the amendments are sensible safeguards.

[Sir Oliver Heald]

I welcome the hon. Gentleman’s objective to protect defendants who may choose the new procedure as a way of dealing with their case. The amendments raise important issues, but they are issues that I am satisfied we are conscious of and will be addressing in the design of the process and the system.

Amendment 101 seeks to provide that the person to be convicted must accept the online conviction, and it then provides for a cooling-off period. The prospect of being able to accept a conviction and its associated penalty, and then undoing it two weeks later, undermines an element of certainty in the judicial process. However, I believe I can point to protections that the hon. Gentleman will find compelling. Amendment 102 proposes to make it a qualifying condition of an automatic online conviction that the accused has been made aware of their right to seek legal advice. In our view, that is not necessary; it may help if I set out the process a bit more fully.

A defendant charged with an offence that may proceed either by way of the single justice procedure—where a magistrate deals with a case on the basis of a guilty plea—or the automatic online conviction procedure will be sent a notice that formally commences proceedings and sets out the procedures available for dealing with their charge. That notice will advise defendants that they have a set period of time to respond to the charge; we expect something like 21 days, as it is with the single justice procedure notice. That notice will advise defendants, as requested by the hon. Gentleman, to use that time to obtain legal advice should they wish to—again, as the current single justice procedure notice does. The details of the timing and what is contained in the notice will be set out in criminal procedure rules.

Amendment 102 also seeks to make it a qualifying condition of an automatic online conviction that the consequences have been clearly explained to the defendant. For the sake of clarity, I note that it is not only a guilty plea that will lead to a conviction, but that plea combined with an agreement to be convicted and penalised in accordance with proposed new sections 16H and 16I to the Magistrates’ Courts Act 1980. Defendants will be presented with all the information that they will need to make an informed decision, and they will also be given details of the range of sentences available to the court. That will all be set out in clear and simple terms. They will be able to opt out of the procedure at any time, up until the point that they accept the conviction. I mentioned the other protections.

--- Later in debate ---

Having provided that overview of the process and additional details of the safeguards, I ask the hon. Gentleman to withdraw his amendment.

[Nick Thomas-Symonds]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Thomas-Symonds]

I beg to move amendment 100, in clause 36, page 35, line 18, leave out

“a summary offence that is not punishable with imprisonment”

and insert

“a non-recordable offence, and where there is no identifiable victim”

This amendment ensures the automatic online conviction option includes only offences which are non-recordable offences and where there is no identifiable victim, providing an important safeguard for victims.

[The Chair]

With this it will be convenient to discuss amendment 103, in clause 36, page 35, line 19, at end insert—

‘(4A) Prior to making any order under subsection (3)(a), the Secretary of State must commission an independent evaluation of any changes to the offences for which automatic online conviction may be offered and shall lay the report before each House of Parliament.”

This amendment requires the Secretary of State to consult and seek independent advice prior to extending the range of offences for which the automatic online conviction option may be offered.

[Nick Thomas-Symonds]

Again, the amendments relate to the safeguards that we are pressing upon the Minister.

Amendment 100 would ensure that the automatic online conviction option includes only offences that are non-recordable offences for which there is no identifiable victim, which would provide an important safeguard for victims. Amendment 103 would require the Secretary of State to consult and seek independent advice prior to extending the range of offences for which the automatic online conviction option may be offered.

Those two safeguards are important. Amendment 100 is very important in terms of how we treat victims in our criminal justice system. Amendment 103 would deal with the concern about mission creep and the idea that the range of offences will keep being extended. The requirement to consult and seek independent advice would provide reassurance to many who are worried about that aspect of the Bill.

[Sir Oliver Heald]

Amendment 100 seeks to define differently the features of offences in scope of the new procedure. As hon. Members will know, we propose to test this procedure with just three offences. Those are non-recordable and will be in the initial phase of introduction. This procedure will be used to prosecute, in any event, only the most straightforward summary offences in our criminal justice system.

We have stipulated that the offences for which the automatic online conviction procedure can be offered will only be summary-only, non-imprisonable offences. That means automatic online conviction can never apply to indictable either way offences, and a sentence of imprisonment will never be imposed by this procedure. Those are important safeguards.

To address the hon. Gentleman’s particular request that the Bill exclude offences where there is no identifiable victim, I should say that we have taken a policy decision that cases involving identifiable victims will not be specified for prosecution by way of the automatic online conviction procedure, just as such offences are not prosecuted by way of the single justice procedure. We are referring here to individual victims, rather than corporate victims.

Likewise, on the matter of non-recordable offences, the majority of offences intended to be in scope are non-recordable, including the first three that I mentioned—failing to produce a ticket for travel on a train, failing to produce a ticket for travel on a tram and fishing with an unlicensed rod and line.

Amendment 103 would commit the Government to commission an independent evaluation of any changes to the offences in scope of the procedure and to lay the report before Parliament. We have been clear from the start that we propose to test the automatic online conviction procedure with a small number of offences in the initial phase, so that we can review how well it works. We have already committed to reviewing the procedure 24 months following its implementation. If that initial phase is successful, we will consider widening the scope to other offences. Any decision to extend to other offences would, of course, also be based on the assessment of what impact any changes to the offences and scope would have.

Finally, the Committee will be aware that the clause provides that future offences need to be specified in secondary legislation made by the Secretary of State, which has to be agreed by Parliament through the affirmative procedure. It is the Government’s view that the amendments are not necessary, and on that basis I ask the hon. Gentleman to withdraw them.

[Nick Thomas-Symonds]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Thomas-Symonds]

I beg to move amendment 33, in clause 36, page 38, line 35, at end insert—

“(4) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of the implementation of the automatic online conviction option made under subsection (1) and shall lay the report of the evaluation before each House of Parliament.”

This amendment ensures the Secretary of State will review automatic online conviction within two years of its implementation.

I will be extremely brief. We will push the amendment to a vote. It concerns an independent review of the automatic online conviction process within two years of the Act coming into effect, on exactly the same principle as we have suggested for other independent reviews: to facilitate good governance and the opportunity to look at how well these new procedures are working.

[Sir Oliver Heald]

I have just given a commitment to review this 24 months following its implementation. On that basis, I invite the hon. Gentleman to withdraw the amendment.

[Nick Thomas-Symonds]

We are in favour of an independent evaluation within two years of the Act coming into effect. I will put the amendment to a vote.

Question put, That the amendment be made.

Prisons and Courts Bill (First sitting)

Nick Thomas-Symonds Excerpts

Committee Debate: 1st Sitting: House of Commons
Tuesday 28th March 2017 Public Bill Committees

[Richard Burgon]

Q Would you think—to add a second question, if that is okay—that presumably there could be different ratios for different categories of prison, as a minimum ratio? Presumably, whatever the variables, there must be, in each category of prison, a minimum below which it would be dangerous to go, which would be contrary to the possibility of fulfilling the purpose of prisons as set out in clause 1.

Martin Lomas: Possibly, but within, for example, a category, there are different types of institution, different emphases in terms of supervision and risk, and competing requirements. The issue is to ensure that the outcome is right—that there is quality to the supervision, and sufficiency in the numbers, and a way of working with people that is respectful and supportive and engages the prisoner.

We have seen lots of places where prisons are insufficiently supervised—there are not enough people around. There is a variety of reasons for that. One of the consequences of that, ironically, is that prisoners have a chronic collapse in confidence. They are afraid because of it, but I am not persuaded that just a crude measure is the way forward.

Nigel Newcomen: May I endorse that? I investigate deaths in custody—self-inflicted deaths, for example—and they are a pressing problem in the system. One of the features that we often find is that it is the quality of that interaction between a staff member, and showing that the staff member is trained and has enough time for that interaction, that is the issue, rather than the numeric ratio of staff to prisoners on that particular wing. If there are more staff and no empathetic interaction, there is no likelihood of the vulnerabilities being picked up.

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

Q To refer to my relevant entry in the Register of Members’ Financial Interests, for the purposes of the Committee I should say that I am a non-practising barrister and door tenant at Civitas Law in Cardiff.

On the issue of deaths in custody, you will be aware of the inquest findings in January on the death of Dean Saunders in Chelmsford prison, in which a number of criticisms were made of mental health care, and the prison system generally. Are you satisfied that the Bill will address those failings?

Nigel Newcomen: It is difficult to be satisfied that a Bill that I am still coming to terms with has got a sufficiently comprehensive reach to cover all the deficiencies exposed in that particular case. It was a very sad case where systemic failure outside as well as within the prison system was exposed—mental health deficiencies. The provision for individuals at risk was certainly not as good as it could and should have been, and I was quite robust in our investigation report.

I think the Bill will assist. I think it brings attention to the issues, and brings focus. It brings an approach to the management of prisons that should put accountability on governors to try to ensure that the provision in their establishment—at Chelmsford, for example—is sufficient to manage the sorts of very needy and vulnerable people who come through the gates of prisons. But it will also need to be supported by adequate resource, and adequate investment both from the prison staff perspective and the healthcare perspective.

The case you referred to, as I say, demonstrated a lot of systemic failures within and without the prison system, and if you are going to address them we will have to have a holistic approach, which also will involve other Departments and other provision, other than simply the Prisons and Courts Bill.

[Nick Thomas-Symonds]

Q If you as ombudsman make recommendations, how confident are you that the Secretary of State will act on them?

Nigel Newcomen: I published a report today on self-inflicted deaths among women and I said in the introduction that I was disheartened that I was saying again many of the things I had said previously. I have been in post six years, and I say very little that is new; I tend to repeat things. That does not necessarily mean that there is any ill will or any lack of desire to implement the recommendations I make. Virtually all the recommendations I make are accepted, almost without exception. I have given action plans, and my colleagues from the prisons inspectorate will go and see whether progress has been made.

Progress is often made to a degree. I am sure that if we go back to Chelmsford, to look at one establishment you just mentioned, much will have been done in the aftermath of the case of Mr Saunders and the aftermath of other cases there, too. But sustained and consistent improvement is something that the Prison Service has struggled to achieve. One of the aspirations the Bill must have is that by ensuring greater accountability and some devolution of responsibility to governors, sustained development and improvement can be achieved. To go back to your question, I personally am quite disheartened that I have been saying the same thing for so long.

[The Minister for Courts and Justice (Sir Oliver Heald)]

Q I want to ask you about mobile phones and drugs. Obviously, prison has never been a pleasant place, and I visited many prisons when I was practising as a barrister, but recently I visited a prison and talked to one of the trusted prisoners who said that the impact of psychoactive substances has been marked, particularly on younger men prisoners, with there being a lot more violence than there used to be. Mobile phones are also enabling prisoners to commit crimes at one remove that they did not use to be able to do. Will you each say a word about drugs and mobile phones—what their impact has been and whether the measures in the Bill are a help?

Martin Lomas: The linkage is very clear. The tsunami of new psychoactive substances in the last three or four years has had an enormously destabilising impact on prisons. The chief inspector referred to that in his annual report, and I for one have never seen anything quite like it. Interestingly, some prisons cope better than others, and there are some lessons to be learned there.

The linkage between drugs and the use of mobile phones and technology is clear. It facilitates criminality—there is no doubt about it. I was talking to a colleague of mine who has inspected this regularly and one of the tricks is to meet a new prisoner arriving in the institution who does not have a phone card and so is unable to communicate, and entrap them in a sense by lending them a phone, in which the numbers are stored. That facilitates the intimidation of families and leverage on them.

The answer to that is proper prevention mechanisms to stop mobile phones coming in and to interrupt those that arrive, and the Bill is supportive of that; but also, in tandem, effective means of ensuring that prisoners have access to legitimate phones, either in cell—we see that in some more modern institutions, which is incredibly helpful—or through phone cards and effective access to, for example, the canteen. We routinely report on new arrivals to institutions who do not get access to the canteen for 10 days, which increases their vulnerability both to self-harm—it is a high-risk time—and to others. It is a twin-track response, and the Bill helps.



Rachel O'Brien: I agree with all of that on phones. You see that really small things in prisons, like not having your phone card and getting the small stuff right, can have a huge impact. On NPS, to go back to the centralisation and the local, we took a long time to respond—inspections were raising that from 2012 onwards —and it is an absolute game changer. We have not been adaptive and responsive, and I think that is partly because we wait for the central machine to respond. That resulted in a quite punitive initial response; it was like we had forgotten everything we know about healthcare and substance misuse, with NPS seen somehow as different, which is ironic, because it is legal outside. It is very strange. So you have had a really punitive response generally, and I think that is beginning to change now.

Thirdly, you need to look at supply and demand. Yes, stopping it coming in in the first place is absolutely critical, but if you have no activity and no purpose—there is a lot of evidence to suggest it is partly about boredom and time out of your head, if not your cell—you are going to seek it out. I am not sure I would not seek it out, if I was stuck in a cell day after day. We have to look at the demand side, as well as supply.

--- Later in debate ---

[Chris Philp]

Mr Simpson, what is your view of the search regime?

Joe Simpson: At the moment, it is hit and miss across the whole system, and that is down to staffing pressures and the regime. The Prison Service ultimately does whatever it has been told to do by the Secretary of State in power at the time. We have gone from “security, security, security” to “regime, regime, regime”. Only at the weekend one of our prisons had to shut down the whole prison in order to put on visits on a Saturday afternoon. Nothing else happened—there was no searching and the prisoners were not out of their cells. They were in their cells because there were not enough staff on duty to get them out.

It depends on what the searching protocol is for the prison as well. Obviously, we have got different categories—A, B, C and D. I would say that the searching strategy in the category A and B systems is more robust because of the types of prisoner being held. In cat C and cat D, I would say it is not as much as we would like to keep people safe—especially in the cat C estate.

[Nick Thomas-Symonds]

Q Rachel, a moment or two ago, you were taking about what the prisoners themselves have to offer in this. I know that the RSA has spoken about things such as rehabilitation culture—I think “rehabilitation capital” is the phrase that is used by the prisons. Can I pick up on that and, in a general sense, ask you whether you think the Bill incorporates that sort of culture and those sorts of measures in the way you would like to see?

Rachel O'Brien: I am slightly nervous of the new HMPPS defining this thing. We know a lot about wellbeing: for example, we can measure people’s ability to make good decisions and their self-confidence—all sorts of things that are prerequisites for the resilience they will need going forward. We are working with a high-security prison at the moment to develop a community-wide strategy. The outcome is going to be great. It is about thinking about, in a very closed system, how you have a better relationship with the outside world, family and so on. Actually, it is about the process of engagement with those prisoners, when they are talking strategies and tactics. They would not necessarily agree to do desktop publishing, but they will do it because they are producing a newsletter to communicate. It is that kind of approach, and you can measure people’s progress—partly because they will tell you and partly because you see it. It is that kind of approach that we need to replicate. Prisons need to be able to do things themselves rather than outsource them, because that is how staff can get those really valuable relationships.

[Liz Saville Roberts]

Q Nigel Newcomen, you mentioned the dichotomy between supply reduction and demand reduction. There are aspects of this Bill that deal with supply reduction per se. To what degree do you and other members of the panel feel that the demand reduction aspect is sufficiently considered within the Bill?

Nigel Newcomen: As I said, I impute from the purposes onward that some of the balances that we have been struggling to put across to you are required are implicit in the Bill’s structure. Demand reduction is a necessary partner of supply reduction. If you have only one, you are going to have only part of the solution. It is essential to have supply reduction, both for phones and for drugs, but you equally have to have work to mitigate the demand and the need for those illicit goods. Without that balance, I think we are on a hiding to nothing. There is nothing in the Bill that I can see that precludes that balance.

--- Later in debate ---

[Nick Smith]

I am pretty sure it is not declarable, but I used to work for the Royal College of Speech and Language Therapists.

[Nick Thomas-Symonds]

To add to the point made by the Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Hexham, I am still owed thousands of pounds in fees, some of which I think may be from insurers.

[Sir Oliver Heald]

I am a barrister, not currently practising, and I am the legal aid Minister, so I apologise, boys.

Prisons and Courts Bill (Second sitting)

Nick Thomas-Symonds Excerpts

Committee Debate: 2nd Sitting: House of Commons
Tuesday 28th March 2017 Public Bill Committees

[Sir Oliver Heald]

Q Perhaps I can ask one more question, before opening this up. Would you like to say a word about the benefits of virtual hearings and dispute resolution within this process?

Professor Susskind: It is important to draw a fundamental distinction—I am doing it in my terms—between virtual hearings and online process. With virtual hearings, there is a hearing: that is to say, there are people communicating with one another at the same time, but they are not all physically in one place; there is a video connection and an audio connection. Technologists would call that “synchronous”. Everyone has to gather together, and it may not be in one physical space, but there is a hearing and they are all attending it virtually. Online process is quite different. It is asynchronous: that means a party can submit a piece of evidence and a judge can respond, but they do not all need to be online at the same time. I am not sure if the Bill or people around the table are completely comfortable with that distinction between virtual hearings and online process. They are very, very different beasts.

The virtual hearing, in a sense, is a natural evolution from the traditional hearing. If people are vulnerable, if they are many miles away, or if it does not seem proportionate for them all to attend in person, why not attend by video and audio? That is the idea of a virtual hearing. It is an extension of the current system. An online process is often entirely different.

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

Q I want to talk about virtual and online courts—I am with Professor Susskind in recognising that they are very different animals—in the criminal context. I will start with Penelope from Transform Justice. In your recent report you looked at an evaluation of the use of technology in the criminal courts back in 2010. The report said:

“The evaluation of the pilot was published in 2010, and concluded that virtual courts as piloted were more expensive, may lead to more guilty pleas and longer sentences, and impeded the communication between lawyer and client.”

As we embrace new technology, how can we seek to deal with those worries?

Penelope Gibbs: With huge difficulty. I would say that the virtual hearings as done now are slightly different from the ones piloted in 2010 in terms of the cost basis, but we still have a huge problem about the relationship between the lawyer and the client. Every piece of research that exists suggests that that communication is impeded.

The other huge problem that came up in that research, which was under-reported, was that actually it reduced the number of people who used a lawyer. In that research, I think only 52% or something of the defendants used a lawyer, despite the fact that all had access to legal aid. So there was something about the circumstances of doing it virtually that meant that they did not use a lawyer, and I would say that the criminal system, in some ways like the civil system, is pretty unsuited to anybody not having a lawyer. It is very complicated and complex, the procedure is difficult and the law is difficult, so there are huge concerns about having people virtually, nearly half of them without a lawyer, with huge decisions being made about remand and sentence, and even the proposition of trial in the Bill by conference call or virtually where you can see people.

[Nick Thomas-Symonds]

Q This is a follow-up, first for Richard and then for Professor Susskind. Should youth defendants be excluded from the Bill’s provisions on virtual courts?

Richard Miller: There would be strong argument for that, yes. We see a clear difference between initial hearings in criminal cases where, for example, bail is being decided and subsequent administrative hearings. For subsequent administrative hearings—for example, where the client has been remanded in custody and is already in prison—having the video link from prison makes a lot of sense. Our members report to us that those sort of virtual hearings work perfectly okay.

The real concern is around the initial hearings, where a whole range of interactions lead to decisions on, for example, whether bail should be granted. The lawyer has to talk to their client and to the prosecution, and they might have to talk to the defendant’s family. There may be ongoing discussions while the case is being heard, with the magistrates coming up with ideas for bail conditions that the lawyer needs to take instructions on. All of those interactions are very difficult to have when you are holding a virtual hearing and the lawyer and the client are not in the same place. That is based on feedback from our members who are involved in the existing pilot projects: they find those interactions very difficult. There are real risks, and particularly when the client is vulnerable it is very difficult indeed to build up that necessary relationship of trust between the defendant and the lawyer to ensure that the right outcome is reached.

It is worth remembering that if in the hearing there is a situation where bail might have been granted but because the necessary instructions cannot be taken or necessary discussions cannot take place the client is remanded in custody, that has a significant impact not only on the client but on the public purse. That is particularly noteworthy, given that the Bill has as its first part—the prisons part—a clear aim to reduce the use of prison where appropriate and to make prison more rehabilitative. If we end up sending more people to prison who should not have been there in the first place, that really is running counter to what we are trying to do with the Bill.

Professor Susskind: I want to answer the question in a slightly different way. Incidentally, I think it is very dangerous to make assumptions about the future based on a report about technology that was written in 2010. We are seven years on from 2010 and I presume the technology was from at least a few months, if not a couple of years, before then. The transformation in video calls since then has been absolutely astounding. Think of the way in which we all use FaceTime and Skype. We are now entering an era of telepresence—I joke not. Recently, I offered someone a cup of tea when I was in a telepresence conversation with them by video. These systems are never going to be any worse: they are getting better and better. Strategically—and this is where we have to have a collective vision—our role is not to think, “How was that technology X years ago when we looked at it?” but rather, “How will it be in two or three years’ time?” It is only going one direction.

Is it not interesting when you think of youth, because is that not such a common way for young people communicate now? Relationships are established through FaceTime and other similar types of videolinking. The assumptions we make as “grown-ups”—as one might say—about how we establish trust and communicate comfortably with others cannot necessarily be carried forward to people who have grown up in the internet era, for whom the conduct of a meeting and interaction via video may be more comfortable and comforting and give rise to a greater experience of trust than it would for our generation. We have to think of the next generation too.

Frankly, the research is not in the justice system. It is like the research we do at Oxford Internet Institute—considering how young people are using and adapting to technology. All the signs are that these technologies are becoming more and more powerful and people are more comfortable using them.

[Nick Thomas-Symonds]

Q I will just move to the online criminal convictions—this is clauses 35 and 36 of the Bill. This is a general question to the panel. Do you think there are sufficient safeguards in the Bill for defendants who use the automatic online conviction process? For example, how could you make an offender aware of the consequences to their employment status of having a criminal conviction? What are the safeguards to enable them to fully understand the consequences of that guilty plea?

Penelope Gibbs: That is a challenge. The Bar Council has suggested that only non-recordable offences should go on to the online conviction system, and I agree with that. To an extent, that would resolve some of the criminal record issues, because non-recordable offences are not added to the police national computer. They can attract a rehabilitation period, but they do not come up in Disclosure and Barring Service checks. That is one of the issues.

If we move on to recordable offences that do attract a criminal record, it is absolutely crucial that people are given full information. A criminal record is not just a barrier to employment: it is a barrier to education, travel and housing. Also, something might be minor and recordable, and you think, “Oh well, that is okay,” but if you have two minor offences, they come up on a DBS check. So if you apply for lots of jobs, they will come up. It is a complex area, and it is crucial that the online conviction system does do that.

It is also important that the system gives people an idea of what a viable defence is. There is an idea that people know whether they are guilty or not. It is true that they might have done the deed, but if they have a legally viable defence, they have a good possibility of being acquitted. This is a complex legal area, and it is crucial that the online criminal conviction court should go through what a viable legal defence is, and refer people to legal agencies that could help with that.

[Sir Oliver Heald]

Q Penelope, you mentioned the 2010 pilot, which was between a police station and the magistrates court and which did reveal some interesting lessons, such as how to schedule cases—that needed to be done better—the elements of a case that are best dealt with by videolink, and the importance of technical quality and reliability. I am sure you would agree that, since then, videolinks have been used successfully in the Crown court, magistrates court hearings and in many other ways, and that the lessons have been learned. Now videolinks are better scheduled, they are used in a more targeted way, and the technology has improved.

There are a lot of benefits to a videolink: for vulnerable witnesses it is often used as a special measure, it stops people having to travel long distances, it stops the wasting of police time, and the professionals find it increasingly helpful to be able speak to their clients at distance. Then there is the security side of it, which means you do not have a lot of people having to use prison transport. Do you accept that things have moved on since 2010?

Penelope Gibbs: They have moved on in a tiny way. I went to observe a court the other day and the videolink worked but the camera angle on the defendant was towards the top of his head and he was quite distant from the camera. People had real difficulties understanding what he said. That was just a month ago.

I would like to talk more about that case—

--- Later in debate ---

[Sir Oliver Heald]

Q It has been made clear that there will be safeguards for the online procedure. Although I accept they have to be done well, it is a procedure that should be tried, given how simple it is for everybody concerned. Are you against even trying it?

Penelope Gibbs: I am not opposed to online criminal conviction if we are talking about non-recordable offences and if sufficient, very rich information is put on the net. I have many more concerns about online indications of plea.

[Nick Thomas-Symonds]

Q Jenny, one of the critical things in the virtual court environment is that people and defendants understand what is going on within that environment despite being on videolink. This is why I raised a concern earlier about young defendants. How do you feel the cuts to legal aid and the proliferation of litigants in person will affect the way people are able to understand what is going on when there is no lawyer present either?

Jenny Beck: It is a massive risk. The critical point is that those who are the most marginalised are the most affected. People who have difficulty understanding, people who have learning needs and people who have language difficulties are the most likely to be those facing the most difficulty. I can see a split in access to justice as a consequence. In the absence of really targeted lawyer intervention at very strategic points, including the introduction of early advice across the board for people, which would be a huge step in the right direction, from a qualified lawyer via legal aid, you can get into a situation where people will be pushed to the margins and miscarriages of justice will result.

Professor Susskind: I want to highlight something that is important in civil, family and tribunals, which is that the introduction of the online process is to be accompanied—this is crucial—by a highly simplified set of rules. That does not fully meet Jenny’s point, but I do not want people to think we are cutting and pasting the old rules online. The idea is that the system will be governed by a very simple set of explicit rules, a lot of which will be embedded within the system, so it will be intuitive and easy to use. There will always be the hard to reach, those who do not use technology comfortably, for example, and the Government have in mind some assistive technology services. I think we will need services for people who otherwise would find the process difficult, but for the lion’s share of people, who use Amazon daily or perhaps renew their tax online, the system should not be complex in the sense of its having a vast body of unintelligible rules.

[Nick Thomas-Symonds]

Q I have just one brief follow-up question for Professor Susskind—I am grateful for your patience, Mr Brady. How do you think the whole online courts idea affects the principle of open justice?

Professor Susskind: Again, we have to have a very clear distinction between virtual courts and online courts.

[Nick Thomas-Symonds]

I am asking about online courts.

Professor Susskind: Okay. Online, my view is that we can make a system that is far more transparent. What we have in mind when we talk about open justice is that members of the public—anyone—can scrutinise the process, understand the results and view justice as it is being administered. When I speak to the judges who are involved in thinking through what the online process will be like, they are entirely happy. For example, in tribunals, an ongoing dialogue between the parties and the judges can be available online and scrutinised. The decisions will be made available online.

I want to challenge the assumption that is often made that you need physically to congregate in a courtroom for a service to be transparent. That is only really available to the public who live nearby. What we have in mind is an internet-based service that could be subject to scrutiny and visibility by anyone who has internet access. It would be a different kind of transparency, but it is transparency none the less, giving far wider access to the process.

[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

Q I will pick up on a couple of points that have been raised. Professor Susskind, you talked about technology improving. Just to give you an idea, I can remember using this technology myself in court as a practising barrister—I am now a non-practising barrister—both before 2010 and after. Since then, technology has been improving on a daily basis. I was particularly pleased to hear that the west of the country seems to be doing well in using technology.

My specific question is directed towards Richard Miller, and Penelope Gibbs as well. Richard, you were talking about concerns about defendants giving evidence virtually. Do you accept the benefits of, for example, vulnerable witnesses giving evidence virtually? For those who would be nervous or anxious about attending court, all those anxieties can be put to rest and they can give evidence from a safe distance.

Richard Miller: We do not have any major problem with that, subject to the judge’s overall control to ensure that justice is being done in the individual case. On the concern about bail hearings in particular, it is not so much the defendant giving evidence as the whole series of interactions that have to happen during the hearing and whether it is practical to accommodate all that within a virtual hearing.

--- Later in debate ---

[Sir Oliver Heald]

Q Richard Miller, do you want to come in?

Richard Miller: We also very much support the proposals. One of the issues that has been of concern, but I think is understood, is that there is a lot of comparison with provisions in the criminal courts. However, in the criminal courts, the victim is a witness in the case who comes in and gives evidence and leaves, whereas in the family courts they are a party and there is interaction throughout the entire process. It means this is a different situation with more scope for harm to be caused to victims of domestic violence within the family courts. We would want to continue to have dialogue to ensure that as much protection as possible is given in those circumstances.

We have identified a couple of specific points that we want to think about a little further. For example, the first provision talks about instances where someone has been convicted or charged. We wonder whether that ought to cover instances where they have been cautioned for the offence as well. That is something that might be added in.

The other issue that has struck us is that this protection will apply not just to the victim but also potentially to other witnesses, such as a child of the family who has witnessed some of the alleged abuse. In that situation, the child could be called on behalf of either party and therefore the issue might not be strictly cross- examination. That may also need to be looked at to ensure that adequate protection is there for all the vulnerable witnesses we are trying to protect.

[Nick Thomas-Symonds]

Q Clause 47 is very welcome. These protections have existed in the criminal courts for some time and to have them now in the family courts is absolutely right. Starting with Polly, what is your view on extending that principle to the civil courts more generally, even beyond simply the family court?

Polly Neate: This is why in the other cases where there was judicial discretion, I said we should discuss any alleged perpetrator of domestic abuse, where there is an allegation. I cannot see the benefit in any situation of any perpetrator of abuse being able to use any court directly to question or cross-examine the victim or the children in the situation. Coercive control does not only exist between a couple; it is something that is deliberately exerted by one person on the other members of the family, which very often includes the children. I want to back up that point, which was very well made.

I can think of no reason other than cost for the idea that someone has to have his day in court. I think that notion needs to be done away with altogether. There is no circumstance where that could possibly be a good idea.

[Nick Thomas-Symonds]

Q Jenny, I see you nodding. Do you share that view?

Jenny Beck: Yes. I would also add that it is in the interests of justice being done, of equality of arms and of ensuring that the system is fair. Any area where justice is not done because one person is unable to represent their case properly—it does not really matter which discipline it is—lacks fundamental natural justice. If we can do something to avoid that by putting measures in place to ensure that the evidence given is proper and robust, why would that not happen?

[Nick Thomas-Symonds]

Q The point presumably is that the court should never become an instrument for the extension of coercive behaviour.

Jenny Beck: Exactly, although there are a couple of ways in which that happens; it is not just in the cross-examination of expert witnesses. Perpetrators also prolong cases and bring additional unnecessary litigation within family cases, but this is certainly a welcome move in the right direction.

Penelope Gibbs: I think this is an excellent initiative; it just brings a question mark for me. If the person is to have aid cross-examining throughout a family case, why should they not be legally aided in the first place? It seems to me that the Government will probably spend as much paying the lawyer for their interventions in helping cross-examine as they would if they legally aided the person.

[Nick Thomas-Symonds]

Q Richard, can I come to you on the issue of funding? Clearly, there will be a court-appointed advocate who needs to be funded, but one curiosity is that the funding of the court-appointed advocate is left to regulation; it is not in the Bill. Do you think that it would be helpful if it were in the Bill, given how crucial funding is?

Richard Miller: Potentially. This issue is very much in the criminal sphere at the moment, because there is a proposal substantially to reduce the payments for advocates who carry out this role in the criminal courts. One concern is basically that the market will speak—if the rates are set at too low a level, you might find that lawyers are just not willing and able to undertake these cases. It is vital that whatever rates are agreed for this work are sufficient to enable advocates of suitable quality to conduct it. At the moment, we think that it is an issue of potential concern that we will not be in that position in the criminal courts if the proposals go through as currently suggested.

[Richard Burgon (Leeds East) (Lab)]

Q I have a question for the representative of Women’s Aid, then two questions on employment tribunals. Polly, are you in a position to comment on the effect of the nature of the MOJ estate on the elongation of abuse or coercive behaviour? It seems to me that there may be an issue with the layout of family court buildings and other things. Regardless of the welcome change set out in clause 47, which you also welcomed, is there anything that you would like to add about issues such as waiting rooms and so on?

Polly Neate: Absolutely. That is the kind of thing that I was referring to when I talked about the need to look at special measures as a backdrop to this. The court reform process now provides an important opportunity to improve the family courts’ ability to provide special measures. We believe that that should be a priority. Separate waiting areas are an obvious example. In the surveys that we have done of women who have been through the family courts and who are survivors of domestic violence, abuse within the court estate is incredibly common. Again, because of the coercive controlling nature of domestic abuse, sometimes it is not visible.

I will give you an example. I spoke to a woman who was in the same waiting room as her ex-partner throughout the whole time the case was going on, and any time she moved anywhere in the building, he would leap up and hold the door open for her as she walked through. To her, that was incredibly intimidating. He was constantly there whenever she went anywhere in the building. Anybody watching would not necessarily have seen that as abusive behaviour, but in fact, given the history of the relationship, it was extremely intimidating behaviour. If there had been separate waiting areas, it could not have happened—so, absolutely, it is very important.

[Richard Burgon]

Q That is very useful. My final question is to Richard Miller, and to Penelope in particular, if she has any thoughts on this. Clause 52 of the Bill talks about the composition of tribunals. As a former tribunal lawyer, I very much did not welcome—and Labour Members do not welcome—the reduction in the use of tribunals and the increase in instances of judges sitting alone. We do not make that point out of any partisan pro-employee or anti-employer position—we are, of course, not anti-employer. It is very useful to have an employer representative and an employee representative there to provide real-world experience to assist the judge. Clause 52 commits the senior president, or the president, of tribunals to extend even further the type of cases in which employment judges would be sitting alone, further undermining the tripartite nature of the tribunal. Do you think that the Committee should amend that?

Penelope Gibbs: I sat as a magistrate myself, so I am very much in favour of the use of lay judges in our justice system. It gives a different perspective from that of people who are part of the paid judiciary, of great quality though they are. I also have concerns about judgments made by people sitting alone. If you have two or three people discussing something, they can hear something, notice something, or bring a perspective that is very relevant to the decisions made, which is why we have benches of three magistrates. So I have huge concerns, and I also see it, I am afraid, as part of an ongoing diminution of lay justice, in that it is reducing or, potentially reducing, lay representation on tribunals while, at the same time, the number of lay magistrates has fallen by a third in the past eight years.

Richard Miller: From the point of view of the Law Society, when the proposal was originally consulted on, it was certainly read as suggesting there should be a default position of a single person deciding these cases, rather than the panel of three, and the Law Society was extremely concerned about that. It was particularly in the context of mental health tribunals and social security tribunals that we got very strong evidence from our members as to the benefits of the additional participants in the panel. It is something that has significant benefits across the board. Having it as a discretion for the senior president of tribunals is a much improved position from the idea of a default that there should be only a single person, but it is worth further thought as to whether it is extending the use of a single person panel further than is appropriate.

[Nick Thomas-Symonds]

Q Penelope, you mentioned that you sat as a lay magistrate. There is a provision in the Bill that abolishes local justice areas, which means a magistrate will not be allocated now to a particular area. Can you comment on the morale of lay magistrates at the moment and how you think it will be affected by the abolition of local justice areas?

Penelope Gibbs: The actual effect of this provision in terms of whether benches will be abolished is not quite clear. I would say if it becomes a situation where local benches of magistrates are abolished, that is a big problem. Already, there have been many amalgamations. Magistrates like to be part not only of their community geographically, but to be part of a community of magistrates. Therefore, even if we create a single justice area, I would say it is very important that benches remain, from the point of view of the morale of magistrates but also being able to communicate and have links to local agencies and people. Without benches, who is the local community supposed to go to when they want to interact with magistracy?

[The Chair]

There are no further questions. I thank all the witnesses for their evidence and we will move on to the next panel.

Examination of Witnesses

James Dalton, Brett Dixon and Rob Townend gave evidence.

--- Later in debate ---

[Craig Tracey]

It was around other impacts such as IPT rises.

Rob Townend: The environment around motor pricing at the moment is really dynamic. IPT has been going up and the discount rate has significant impact on premiums for larger injuries. Adding these together, the opportunity to offset premium increases with a reduction in the cost of whiplash claims would be beneficial to consumers.

James Dalton: We have been very public about our view that the decision to reduce the discount rate to the extent that it has been reduced is absurd. There is a very important need to reform the system and we look forward to seeing the Government’s consultation on that in due course. Inevitably that has already led to increased car insurance premiums and an increase in the insurance premium tax. This makes it even more important to progress these reforms in order that premiums will not go up as much as they would were you not to proceed with these changes.

It comes back to the society question: do you want to live in a society where you have a claims culture and compensation system that drives the sort of behaviours that Rob Townend was describing earlier. I think the answer that most consumers give to us is that they are sick and tired of the cold calling and the text messages. This is the system that drives them.

[Nick Thomas-Symonds]

Q I have two points, Mr Brady, and the first is to Brett Dixon. The small claims track limit of £1,000 has been there since 1999. If you increased it by the same rate as the consumer prices index, you would end up with just under £1,500. If you increased it by the same rate as the retail prices index, you would end up with just under £1,600. Do you think there is any justification for going to £2,000 in most cases and £5,000 in whiplash cases?

Brett Dixon: I do not think there is any justification for it, to be perfectly frank with you. The use of a small claims track system is to identify those claims that somebody can deal with on their own, rather than it being about a monetary value. If you introduce changes to the small claims track at the same time as altering the court system to provide hearings at a distance—video evidence—you are going to make it incredibly difficult for a litigant in person to deal with and understand all those issues on their own.

Remember, the defendant who has paid an insurance premium has a right to call on those insurers to provide them with legal representation. I always think of it as being the person in the dentist’s chair on their own—that is what you would be as a litigant in person against well-represented opponents. I think that there is no justification, either monetarily as you have put it, or on the basis of the purpose of a small claims track.

[Nick Thomas-Symonds]

Q Perhaps Mr Dalton could answer another question. You are talking about a claims culture and all the rest of it. When we are talking about fraudulent claims, if there is sufficient evidence to plead fraud—and I appreciate there has to be a bar to plead fraud—the defendant lawyers, whoever they are, will plead the fraud and it is either proved before the court or it is not. I can remember my own involvement with these cases. You will have a number of cases where fraud has been definitively proven. Beyond that, any statistics are just based on suspicion, aren’t they?

James Dalton: No, not really, because the ABI produces statistics which indicate the number of detected fraudulent motor claims each year. In 2015, the last year for which statistics are available, there was £800 million of detected insurance fraud and there were around 70,000 cases. However, I think the really important thing to think about in this context is whether the reforms are designed to address fraud. I think that they will help to address the fraud issues that you have articulated, but again it comes back to the societal question: do you want the text messaging, the spam calls and that type of environment, with the money in the system that drives those sorts of behaviours?

[Nick Thomas-Symonds]

Q In how many of the 70,000 cases where you say fraud was detected were the frauds actually proven before the courts?

James Dalton: I do not have those statistics. Each insurer will decide whether they take further action; maybe Rob can explain how Aviva approaches it. Each insurer will make a decision as to how they deal with the case in question.

[Nick Thomas-Symonds]

Q You just made a statement about 70,000 cases of detected fraud and you cannot even tell me how many of those are actually proven before the courts?

James Dalton: No.

[Suella Fernandes (Fareham) (Con)]

Q I have defended parties in low-velocity impact claims, and the guidance is generally set out when an allegation of fraud is going to form part of a defence; it is set out in the Court of Appeal guidance for Casey v. Cartwright. What do you think is the problem with that guidance and how will these proposals assist? It imposes a burden on the defendant to notify that fraud will be part of the defence and, importantly, in many cases it will allow them to adduce medical evidence on the issue of causation.

James Dalton: There are a number of tools at insurers’ disposal to address the type of cases that we have just been discussing. Whether insurers choose to use them is obviously a decision for them and, as I said, Rob might be able to explain what Aviva’s position is.

However, the Government have recognised that fraud is a big problem in insurance. They established an insurance fraud taskforce, which has reported and made a number of recommendations for reform. The Government have delivered. For example, there is now a fundamental dishonesty action that insurers can plead in court, so that those claims that are so flagrantly fraudulent are kicked out of the system. We need those tools and we are using them to get rid of fraud from the system.

Rob Townend: It is a good question; I will answer two questions together. We started defending claims at Aviva a couple of years ago. We stood back and said, “Look, we’re not going to back away quickly. We are going to trust the courts to support us,” and we took a defence excellence strategy on behalf of our customers. If they are saying, “There wasn’t anybody injured. I might have been liable, but the speed of the accident didn’t cause injury,” we have been defending our customers through the courts for the last couple of years. I think we have put 1,700 through the courts; we have a success rate of something like 70%. More recently, we have had great success with fundamental dishonesty and the judges are generally starting to support us. I think we have had 174 cases where we have had fundamental dishonesty.

If we go to the other gentleman’s comment about fraud, we do not pay one in 10 of our whiplash claims. Some of that disappears when we challenge it. I invest millions of pounds in investigation analytics capability technology and we will challenge plaintiffs at the first point where we think the claim is linked to a gang and is spurious. We do not pay one in 10 of our whiplash claims at Aviva.

Prisons and Courts Bill

Nick Thomas-Symonds Excerpts

2nd reading: House of Commons
Monday 20th March 2017 Commons Chamber

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

I refer at the outset to my relevant entry in the register as a non-practising barrister at Civitas Law.

I thank Members from all parts of the House for the quality of this debate on Second Reading. There is much in the Prisons and Courts Bill that the Opposition can support, not least the very welcome prohibition in the family courts of cross-examination of victims by alleged perpetrators—something that was raised in an urgent question only a couple of months ago by my hon. Friend the Member for Hove (Peter Kyle).

We welcome modernisation and innovation, but we will seek to amend this Bill in Committee to embed the principles of justice and fairness and to ensure that innovations come with safeguards and appropriate statutory reviews. Indeed, our approach to this Bill of holding the Government to account and of not giving them a blank cheque was summed up in the contributions of my hon. Friends on the Opposition Benches. I commend the work that is done by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) in her chairing of the Joint Committee on Human Rights. She spoke very movingly about the problem of suicides in our prisons.

I commend my hon. Friend the Member for Halifax (Holly Lynch) for her campaign for protections for emergency workers, including for our prison officers, and for speaking up for local justice in Halifax—Halifax could have no finer voice speaking up for it than that of my hon. Friend.

I am grateful too to my hon. Friend the Member for Stretford and Urmston (Kate Green) who spoke very movingly about mental health in our prisons—something that has come up in a number of contributions this afternoon—and the excessive number of women in custody in 2017. I am also grateful to my right hon. Friend the Member for Delyn (Mr Hanson) who drew on his extensive experience. In particular, he highlighted the issue of prisoners in prisons far too far away from home.

I also commend my hon. Friend the Member for Bridgend (Mrs Moon) for her contribution. It was great to hear about Her Majesty’s Prison Parc and the charter mark that it has received. I am grateful, too, to my hon. Friend the Member for Wolverhampton South West (Rob Marris) who made a number of very useful and important interventions as the debate progressed.

With regard to the success of this Bill, it is difficult at times not to draw the conclusion that factors outside it will be at least as important, if not more important, than what is inside it. We are all in favour of rehabilitation and reducing the reoffending rate. The 2,500 extra prisoner officers are welcome, but they do not compensate for the 6,500 jobs that have been lost since 2010.

We are in favour of modernisation of our courts system, but the cuts to legal aid have meant that there are far more litigants in person within our courts system. Similarly, there are measures on employment tribunals in this Bill, but they do nothing to take away the ideological vandalism of the employment tribunal fees that were introduced in 2013. We welcome online courts, but they should not be at the expense of local justice; they should be a complement to it. In relation to the measures on small claims, I never thought that I would find myself at this Dispatch Box agreeing with the hon. Member for Bury North (Mr Nuttall), but he was entirely right when he said that if we want to tackle fraudulent claims, the way to do it is not to penalise everybody who brings legitimate claims.

We will judge the Bill on whether it will actually deliver. Prisons are its centrepiece, and we know of the problems of violence, overcrowding, drugs and the shortage of prison officers, which the Government have to tackle. The Lord Chancellor, in her opening remarks, talked about turning the situation around, but I remind Conservative Members that their party has been in power for seven years.

I have a confession to make: I have been reading the memoirs of the right hon. and learned Member for Rushcliffe (Mr Clarke). I was interested in what he says about his time as Justice Secretary. He says that when the Conservatives came into power in coalition in 2010, he consulted the Conservative party website to find what its justice policy was, but was somewhat disappointed to find that it was based on

“trying to respond to the various campaigns in the tabloid press”.

He added:

“Thereafter I did not consult my party’s website again.”

That is probably good advice for the Ministers on the Treasury Bench tonight. The right hon. and learned Gentleman said of his successor:

“When Chris Grayling took over from me as Justice Secretary, he was not at all interested in reforming the prison system in a liberal direction, nor in reducing the prison population.”

[Philip Davies]

Hear, hear!

[Nick Thomas-Symonds]

I will come to the hon. Member for Shipley later. The right hon. and learned Gentleman continued:

“Inevitably, therefore, he had to return to seek more savings from the legal aid system. He revived the disastrous proposals for criminal legal aid, which dragged him into prolonged and unsuccessful controversy during much of his term of office”.

I entirely agree that the criminal legal aid changes were disastrous. Those cuts have produced a false economy, because of the proliferation of litigants in person in our courts. That, in turn, puts the success of measures such as live and virtual courts at risk, because one of the risks in that situation is that the person appearing in court is not able to follow or understand the hearing. That might be a challenge in a virtual court with a lawyer present; it is an even greater challenge where there are litigants in person. The Government have to be clear and careful that virtual courts are managed properly and do not end up costing more money than they save.

Similarly, I place on record a note of caution about the idea of online guilty pleas. Although I can see an argument in favour for very simple offences, such as motoring offences that are readily understood, the defendant must know and understand their right to legal advice and understand too their right to challenge the charge. An online plea removes the opportunity that sometimes comes later in prosecutions before the courts when different charges are ultimately pursued by the Crown Prosecution Service. Nor must online guilty pleas be the thin end of the wedge to extend them to far more complex offences. Finally on online courts, we must never lose sight of the fact that we must have a criminal justice system that is open and visible to the public.

Nowhere is the problem of what is not in the Bill summed up more clearly than in the iniquitous employment tribunal fees, which with issue fee and hearing fee can reach £1,200. If someone has been subjected to discrimination or unfair dismissal, such a fee will be extremely hard to find. Early in the debate, Members discussed the effect that the fees have had, but I will quote the report of the Select Committee on Justice. Incidentally, I commend the work of its Chair, the hon. Member for Bromley and Chislehurst (Robert Neill), who makes such an important contribution to our debates on justice matters. After the introduction of the fees in July 3013, there was

“an undisputed and precipitate drop in the number of cases brought, approaching 70%”.

The Minister made a point about conciliation when intervening on my hon. Friend the Member for Leeds East (Richard Burgon). Well, let me quote the Justice Committee:

“We heard a considerable amount of evidence that, far from encouraging early conciliation and resolution of disputes, employment tribunal fees were having precisely the opposite effect, because there was no incentive for an employer to settle in cases where the claimant might have difficulty raising the fee.”

Therein lies the crux of the problem.

I heard many erudite contributions from the Government Benches, but the one that will really reverberate on employment tribunal fees is the one made by the hon. Member for Huntingdon (Mr Djanogly), who, when my hon. Friend the Member for Leeds East talked about the need to abolish these fees, said that that would encourage something for nothing. Let me say quite openly that someone who has suffered discrimination at work or been subject to an unfair dismissal does not seek something for nothing. They seek access to justice and to assert their legal rights.

[Mr Djanogly]

The hon. Gentleman must tell me for which other type of application people do not pay a fee. Why is it only employment tribunals for which he does not want fees to be paid?

[Nick Thomas-Symonds]

Because these are the very people who do not have the money to bring their cases. The hon. Gentleman is so far from reality. With the greatest of respect, although he did make some useful contributions in his speech, he is in a hole when it comes to this issue, so I suggest that he stops digging. His contribution really gets no better with the number of remarks he makes.

The final parts of the Bill are on whiplash claims. I have already said that I agree with the hon. Member for Bury North that the way to deal with fraud is not to increase the small claims track limit in this way. On whiplash, as on everything else, we will judge the Bill and look to amend it in Committee based on what it does for access to justice. That is the central principle on which it must be judged.

Oral Answers to Questions

Nick Thomas-Symonds Excerpts

Tuesday 26th April 2016 Commons Chamber

[Mr Raab]

My hon. Friend is absolutely right. As we move forward to the consultation and take into account all the evidence, the key thing is to make sure that there is proper access to justice but also that we cut the cost of insurance premiums for consumers. That is what we intend to do.

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

24. If these reforms are so positive, why is the president of the Law Society gravely concerned that they may undermine the rights of ordinary citizens to obtain compensation for negligence?

[Mr Raab]

The Law Society quite properly protects the professional interest of its members. We must consider all evidence that we receive and look at this in the round, rather than just take into account what the lawyers think.

Criminal Legal Aid

Nick Thomas-Symonds Excerpts

Friday 29th January 2016 Commons Chamber

[Mr Vara]

I urge my hon. Friend to look at the details of the statement made by my right hon. Friend the Justice Secretary yesterday, wherein the way forward is stated, but I will happily write to my hon. Friend with further details.

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

I should first say that I used to be a barrister before entering Parliament, and remain a non-practising door tenant of Civitas Law in Cardiff.

A year ago, the previous Lord Chancellor said these very reforms were both sustainable and essential. I thought that was completely wrong and I am delighted that the current Lord Chancellor agrees with me, but can the Minister tell us why the previous Lord Chancellor got so many things so badly wrong?

[Mr Vara]

It lowers the tone of this debate when, not for the first time, the hon. Gentleman takes his lead from the hon. Member for Hammersmith by resorting to personal abuse. There have been two significant developments, which have allowed us to make the announcement. First, thanks to the economies we have made elsewhere in the MOJ, Her Majesty’s Treasury has given us a settlement that allows us greater flexibility in the allocation of funds for legal aid; and it has also become clear, as I have said, that there are real problems in pressing ahead as initially proposed. We recognise those issues and we want to do the best for the profession, and that is why we have taken this decision.

Oral Answers to Questions

Nick Thomas-Symonds Excerpts

Tuesday 26th January 2016 Commons Chamber

[Mr Raab]

I thank my hon. Friend for his insightful remarks. As a former Public Accounts Committee Chairman, he will appreciate that we have already slimmed back-office by £600 million so that we can extend rehabilitation to the 45,000 offenders on short sentences, where we have some of the highest reoffending. Now we are cutting the admin budget by 50%, but investing £700 million to modernise our courts. It shows that, whether we are talking about delays at courts or the offenders passing through them, we can drive efficiencies and deliver a more effective system.

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

Given the Secretary of State’s U-turns on things such as the criminal court charge and the ban on books being sent to prisoners, may I gently suggest that a good way of saving money would be to avoid such mistakes in the first place and listen to the Labour party?

[Mr Raab]

With great respect to the hon. Gentleman, given the litany of mistakes, errors and systemic failings that we have had to clear up over the past five years and will continue to do over the next five years, we might just reject that particular piece of counsel.

Psychoactive Substances Bill [Lords]

Nick Thomas-Symonds Excerpts

Wednesday 20th January 2016 Commons Chamber

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

At the end of last year I visited St Alban’s RC high school in my constituency, my old school, and saw there at first hand the kind of educational work that was being done on so-called legal highs. Does my hon. Friend agree that that is precisely the kind of approach we need?

[Lyn Brown]

I thank my hon. Friend for making that point. Wales has a very impressive education programme, and I will come to that later in my contribution.

New clause 1 seeks to amend the Education Act 2002 to make personal, social, health and economic education include a focus on drugs and new psychoactive substances. It should be a foundation subject in any national curriculum. The Government’s drug education strategy contains some warm words about providing good quality education and advice so that young people and their parents are provided with credible information on actively resisting substance misuse, but these warm words are not, and were not, acted upon. The coalition Government reversed Labour’s plans to make PSHE a statutory requirement, despite that being recommended in the review carried out by Sir Alasdair Macdonald. They closed the drugs education forum, a source of expertise on drugs education in England which disseminated information to teachers across the country. The forum was closed as part of a drastic cut in drugs education spending. According to the Department of Health, drugs education spending was reduced from £3.9 million in 2009-10 to around £500,000 in 2010-11.

State Pension Age (Women)

Nick Thomas-Symonds Excerpts

Thursday 7th January 2016 Commons Chamber

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

I commend the hon. Member for Paisley and Renfrewshire South (Mhairi Black) for securing and opening this debate. It is perhaps an irony, however, as we are discussing pensions, that she is further from retirement age than any other Member of this House. I also want to pay a warm tribute to WASPI on its campaign and the dignity with which it has conducted it. It is a measure of the campaign’s success that every Member of this House knows the meaning of the acronym WASPI. I also pay tribute to the other groups and individuals who have been advocating the cause of women born in the 1950s.

The level of interest in this debate is summed up by the fact that we have had 26 Back-Bench contributions from Members from all parts of the United Kingdom. I want to pick out two contributions: that of my hon. Friend the Member for Denton and Reddish (Andrew Gwynne), who has done so much work on this in recent years, and that of my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley), whose deep commitment to this is known across the House.

I also want to pay tribute to my Labour colleagues who in 2011, when the Pensions Act was going through this House, pressed the issue of transitional provisions as hard as they could. It is a shame the Government did not listen to many of our proposals set out at the time.

[Stephen Timms (East Ham) (Lab)]

At that time, the Secretary of State said in debate said he would consider transitional protection. Has my hon. Friend seen any evidence of that consideration being given?

[Nick Thomas-Symonds]

That points to what has happened here. In previous debates on this matter the Minister has talked about the cap on the increase being reduced from 24 to 18 months, but that was as far as it got, and we see the Government today have no positive proposals. They keep asking the Opposition about their proposals, but it is the Government whose mind has gone completely blank on this issue.

Let us not forget the fundamentals of this debate. Many women born in the 1950s will have started their working lives without even the protection of the Equal Pay Act 1970. Many of those women will have been paid at a lower rate than men for no reason other than that they were women. The gender pay gap is at its widest for many of the women under discussion today. Also, let us not forget the time that many of them took to work part-time or bring up children when they have not even had the chance to contribute to occupational pensions.

The Pensions Act 1995 increased the state pension age from 60 to 65 for women between April 2010 and 2020, to bring it into line with the state pension age for men, but the coalition Government moved the goalposts. They decided to accelerate the increase in the women’s state pension age from April 2016 so that it reached 65 by November 2018. As my right hon. Friend the Member for East Ham (Stephen Timms) has pointed out, in the Second Reading debate in this House on 20 June 2011 the Secretary of State made it absolutely clear that the Government would “consider transitional arrangements.”

The much vaunted reduction in the cap—capping the maximum increase at 18 months—that the Minister has pointed to in recent debates simply is not enough. Do the Government understand the anger at the fact that more transitional provisions have not been considered—over 100,000 signatures for a debate in this House, the online campaign and the great response to it in the media? Recently I was told by the Sunday Post that a feature on this subject brings an unprecedented response from the hundreds of thousands of women who are affected.

Let us ask ourselves what the Pensions Minister in the coalition Government at the time thinks. This is what he told the Institute for Government:

“There was one very early decision that we took about state pension ages, which we would have done differently if we’d been properly briefed, and we weren’t.”

He added:

“We made a choice, and the implications of what we were doing suddenly, about two or three months later, it became clear that they were very different from what we thought.”

He then said:

“So basically we made a bad decision. We realised too late. It had just gone too far by then.”

[Mr Dennis Skinner (Bolsover) (Lab)]

The only thing my hon. Friend has forgotten to mention is that the whole idea was masterminded and put forward at the Dispatch Box by that tin-pot Liberal who called himself Professor Steve Webb.

[Nick Thomas-Symonds]

I am honoured to be put right by that intervention, and perhaps the Professor, as we shall forever refer to him, would have been better off listening to my colleagues on the Labour Benches than the civil servants.

It would be even more interesting to ask ourselves what the current Pensions Minister thinks of the 2011 Act. I thoroughly recommend to the House rosaltmann.com, which has a lot of wonderful critiques of the coalition pensions policy in it. She cannot deny it is her site; her photograph is on every contribution. She said this about the 2011 Act:

“The Government has decided to renege on its Coalition Agreement, by increasing the State Pension Age for women from 2016, even though it assured these women that it would not start raising the pension age again before 2020.”

That is what the current Minister for Pensions said. Even after the concession of the cap being reduced, this is what she said to the Yorkshire Post on 6 June 2013:

“The coalition seems oblivious to the problems faced by those already in their late fifties, particularly women, who feel they simply do not matter to policymakers.”

What an appropriate critique that is!

We should also look carefully at the intervention from my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) who talked about being lobbied by the Pensions Minister about applying the pensions protection fund retrospectively. Her lobbying of my right hon. Friend was effective on that occasion. She told him that the impossible was possible. Now, however, she says that what we are trying to achieve is impossible. I have an interest in history, and I have been trying—unsuccessfully—all morning to think of an example of another Minister who had more influence on Government policy when they were outside the Government than when they were in it.

We have heard much about the key question of notice. It is key because the Government have in their gift the pensions legal framework in this country, and when they make changes to it, they have a duty to provide notice of them. The House should not just take my word for that; let us take the word of the Pensions Minister. What did she say about women who were already in their late 50s and about the notice they were given under the 2011 Act? She said:

“They are not being given enough notice of such a huge change.”

Why will she not listen to her own words now?

This debate is taking place against the backdrop of a decision in the district court in the northern Netherlands, which has already been mentioned today. It found that a lady who suffered from a number of chronic, progressive diseases faced a disproportionate burden in bridging the gap to her extended retirement age. How awful it would be if this battle were to end up in the courts, given that the Government have the chance to do something about it today. The Government keep saying that they are not sure what to do. They find it impossible to do anything about this, and they have no proposals to bring forward. Yet if we look at the passage of the Pensions Act 2011, we can see that they had a number of options at that time, one of which has been set out by my hon. Friend the Member for Foyle (Mark Durkan) today. Another, which was put forward by one of my predecessors as shadow Pensions Minister, related to maintaining the qualifying age for pension credit on the 1995 timetable rather than the 2011 one, which would at least have provided a buffer for those who were least able to cope financially with the changes. That proposal was completely dismissed at the time.

I ask the Minister at least to open his mind to having a discussion about what might be done, instead of consistently hiding behind the fact that he is going to do absolutely nothing. We have today heard the passion around this issue, and it is not an issue that is going to go away. I urge the Government to be constructive. They could still do something to ease the transitions. Whatever the Minister does today, he should not slam the door in the face of the 1950s women.

--- Later in debate ---

[Mr Vara]

I will not give way.

[Nick Thomas-Symonds]

rose—

[Mr Vara]

I will give way.

[Nick Thomas-Symonds]

I am grateful to the Minister for being so generous in giving way. He read out the quote about £1 billion being a “serious amount of money”, but he really should have quoted the whole sentence, which begins:

“this was a measure to save 30 billion quid over how many years, and we wanted 10% of that back to soften the blow”.

Steve Webb wanted £3 billion back but got only £1 billion.

[Mr Vara]

If the hon. Gentleman had taken the trouble to listen while he was preparing his question, he would know that that is what I said, except that I used different words. He might want to check the Hansard record tomorrow morning. In this place, it always helps to listen before speaking.

The Government listened to the concerns expressed during the passing of the 2011 Act, and shortened the delay that anyone would experience in claiming their state pension, relative to the 1995 timetable, to 18 months. That concession benefited almost a quarter of a million women, who would otherwise have experienced delays of up to two years. A similar number of men also benefited from a reduced increase. The concession was worth £1.1 billion in total, and as a result 81% of women affected will experience a delay of 12 months or less.