Prisons and Courts Bill

Richard Burgon Excerpts

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

[Richard Burgon (Leeds East) (Lab)]

I start by echoing the Justice Secretary’s comments about the young prison officer Ryan Goodenough, who was attacked in Oakhill secure training centre last week. I pay tribute to all our prison officers, who do such a good job in such difficult circumstances.

I thank the Secretary of State for telephoning me the evening before the Bill’s publication to discuss its contents, and the Minister for Courts and Justice for meeting me last week to discuss the Bill in further detail. Even though I have been in this place for only a limited time, I understand that that is a custom more often honoured in the breach than observance, so I was pleased that they contacted me in a courteous and informative way. I also thank the House of Commons Library for its thorough and clear briefing, which has assisted me and my staff, and doubtless many other Members and their staff, too.

We are discussing a Bill to amend the procedures in our prisons and courts. The Bill has been trailed since the Queen’s Speech last May—back in the days when the former right hon. Member for Witney was Prime Minister, the right hon. Member for Surrey Heath (Michael Gove) was Justice Secretary, and the right hon. Member for Tatton (Mr Osborne) could not find the time to edit a daily newspaper. Much has changed since then—we have waited a long time for this Bill.

We are not opposed to the Bill. Indeed, we welcome and support much of its content. However, when we disagree with provisions or believe that the Government should go further, we will pursue amendments in Committee. The Bill comes at a time of dual crises: a dangerous and declining prison estate; and thousands of people being priced out of access to justice. I will set out the reasons for those crises and what the Bill must offer to make a real difference.

It has been the Secretary of State’s misfortune to inherit a brief that has been dominated from day one by the crisis in our prisons. That crisis is not of the Secretary of State’s making, but it was created by the Conservative Government’s cuts agenda. The relevant statistics are often cited in this place, but they are worth repeating. There is overcrowding in 68% of our prisons, with more than 84,000 people for approximately 77,000 places. In the 12 months to September 2016, there were more than 25,000 prisoner assault incidents, which represented a 31% increase on the figure for September 2015. Assaults on prison staff reached 6,430, which was an increase of 82% since 2006 and a 40% increase on the year before. There were more than 37,750 incidents of self-harm, which was an increase of 61% compared with September 2006 and a national increase of 23% on the previous year. In the 12 months to December 2016, there were 354 deaths of prisoners in custody, 34% of which were self-inflicted. This Government’s decision to cut 7,000 frontline prison officers no doubt contributed in large part to the crisis, but that was allied with the disastrous decision to part-privatise our probation service, meaning that the effective rehabilitation of offenders has become all but extinct under successive Conservative Governments.

[Philip Davies]

I, too, want to support and help to protect our prison officers. I intend to table an amendment whereby a prisoner who assaults a prison officer should no longer be automatically released halfway through their sentence. That would have a big impact on the Prison Officers Association—it would welcome that support—and it might deter some of the violence in prisons. If I table such an amendment, will the hon. Gentleman show his backing for prison officers by supporting it?

[Richard Burgon]

In Committee, my hon. Friend the Member for Halifax (Holly Lynch) and others will look at ways of ensuring that we put the safety of our prison officers first, and on a par with the safety of police officers. Overcrowding, violence and failure to reform are all challenges that the Bill must confront and surmount.

The Bill sets out proposals to modernise the way in which our courts and tribunals operate, which is welcome. I can testify from my decade as an employment tribunal lawyer that when Dickens complained in “Bleak House” about the turgid pace with which courts dealt with cases, he could have been speaking for our age, too. However, technology has begun to appear in courtrooms, from which it was previously glaringly absent.

It is vital that such innovations do not come at the expense of access to justice, because in recent years, when the Conservatives have released documents with the word “transforming” in the title, that has usually been shorthand for cutting, diminishing and failing—think of “Transforming Legal Aid” and “Transforming Rehabilitation.” “Transforming our Justice System,” which is one of the papers that has influenced this Bill, must not result in the same.

The Lord Chief Justice, Lord Thomas, was certainly correct when he said last year:

“Our system of justice has become unaffordable to most.”

I was glad that the Secretary of State praised Lord Thomas in her speech, but I would welcome it if she went beyond praising him and agreed with his analysis of the barriers to access to justice.

[Mr Shailesh Vara (North West Cambridgeshire) (Con)]

Lord Thomas certainly said that, but the hon. Gentleman will be aware that Lord Thomas also supports all the Bill’s measures on reforming the courts, particularly on using technology to allow the access to courts that so many people were saying was going to be denied. Lord Thomas supports all the measures.

[Richard Burgon]

I made it clear at the outset of my speech that we will not oppose the Bill on Second Reading. We welcome a number of the Bill’s measures, but the Government should go further. I hope that the Secretary of State will agree that reform should not come at the expense of access to justice, and if Lord Thomas, whom we all hold in high esteem, is saying that our system of justice has become unaffordable to most, Members on both sides of the House must take that seriously.

Nothing more poignantly demonstrates what Lord Thomas said about the barriers to access to justice than the 70% reduction in employment tribunal cases following the coalition Government’s introduction of employment tribunal fees. The Bill must provide answers to such problems. Technology alone is not a panacea, nor must it be utilised to mask further cuts to public funding.

A key feature of the Bill that has received much coverage in recent weeks is the proposed reform of whiplash claims. When the Bill was published, many people were pleased that it did not raise the small claims limit for all personal injuries, so the Government can be congratulated on listening—or listening a little—but we should be clear that the reform of whiplash claims is based on a false premise. The Secretary of State said today that there is a “rampant compensation culture”, but there is no epidemic of fraudulent claims. The British people are not on the fiddle or on the make in the way the Government so disparagingly suggest.

[Mr Vara]

The shadow Minister’s tone suggests that he agrees with much of the Bill—that is welcome—but how does he explain the fact that while the number of accidents is going down enormously, the number of whiplash claims has nevertheless increased by 50%? Does that have something to do with fraud?

[Richard Burgon]

The number of whiplash claims in recent years has reduced—[Interruption.] In recent years it has. I should also point out that there is a duty upon insurers to defend claims and not to pay out when claims are fraudulent.

[Mr Hanson]

I wonder whether my hon. Friend can help me a little. The Government have claimed that the whiplash proposals will reduce insurance premiums for drivers by about £40. Has he become aware of any evidence to back up that claim? If so, will he share it with the House, because we would be interested in examining it?

[Richard Burgon]

I thank my right hon. Friend for his intervention. Unfortunately, the Government have provided no cast-iron assurances that this saving will be passed on to drivers—if it exists at all.

[Kate Green]

Does my hon. Friend agree that it is wrong to penalise people who have valid personal injury claims because of a possible rise in the number of claims that is driven by cowboy claims management companies cold calling people to suggest that they should make claims that have no basis in reality? The Bill does nothing to address that.

[Richard Burgon]

I agree with the point that my hon. Friend so eloquently makes. Injured people should not be made to pay the price of the behaviour of the unscrupulous minority—the companies that engage in the practices she describes.

The Secretary of State started her speech by explaining how the Bill introduces a statutory purpose for prisons to

“protect the public…reform and rehabilitate offenders…prepare prisoners for life outside prison; and…maintain an environment that is safe and secure.”

Of course we agree with those aims, but most people believe that they are what prisons are meant to be doing already. It is crystal clear that those things are not happening today. The main problems in prisons cannot be disputed: violence, drugs, overcrowding and understaffing. To combat those threats effectively, we need a plan for order—a plan to reduce the demand for and supply of drugs, to manage the prison population, and to recruit and retain prison officers. Where is any of that in the Bill? Where are the practical measures to realise those goals? We will be returning to those issues in Committee.

[Rob Marris]

Let me try to help my hon. Friend because there is a bit of a theme running through the Government’s approach. Ironically, given that we are considering the Prisons and Courts Bill, the Government’s approach to evidence is somewhat cavalier. Most of us would accept there is likely to be cause and effect between cutting 6,500 prison officers and replacing them with only 2,500, and the terrible state of our prisons; and between the introduction of massive employment tribunal fees and a lack of access to justice. Now we have bizarre compensation tariff proposals for whiplash with no evidence of where the Government got their figures from, but just an assertion from the Secretary of State that they believe in fair compensation. Well, I believe in Santa Claus as well.

[Richard Burgon]

My hon. Friend puts it very well indeed. Evidence is required in court and in this place, and the evidence to back up some of the Government’s proposals is lacking. I will say more about this later, but there is a similar situation in respect of the review of employment tribunal fees. In effect, it says, “There is nothing to see here,” despite evidence showing that there has been a 70% reduction in the number of cases brought to those tribunals.

[Victoria Prentis]

I am glad that the hon. Gentleman agrees with much of what is in the Bill. Does he agree that the White Paper alongside it contains a lot of the evidence that he is searching for?

[Richard Burgon]

Of course we have considered the White Paper but, as I said, we will be returning to these practical proposals in Committee as we attempt to improve the Bill.

Did Ministers consider that the resettlement of prisoners might be a worthy aim to set out in the Bill? Too many prisoners leave prison without a home to go to, and that is a barrier to many things, including getting a job. It hampers rehabilitation and increases—

[Mrs Moon]

Is my hon. Friend aware of the Emmaus project? It will offer a prisoner who is ready to take the step of moving away from drugs and offending and into work the chance to become a companion. People will prepare goods for sale in the Emmaus shop, and restore and repair other goods. Those people claim no benefits other than housing benefit, so there is no real cost for the state, but they are supported in changing their lives absolutely and getting back into work. Should we not encourage that?

[Richard Burgon]

Fantastic work such as that of the Emmaus project helps not only to turn around the lives of inmates, but to protect society, because the majority of people who go into our prisons will come out and live next door to us. The project helps to give people a stake in society and to reduce reoffending, and the Government can learn much from it. Leaving prison without a home to go to creates a barrier to many things, including getting a job, and that hampers people’s reintegration into society.

[Mrs Gillan]

I welcome the hon. Gentleman’s support for many of the Bill’s provisions. Does he agree that the National Grid scheme, which was started all those years ago by Dr Mary Harris, does valuable work in finding homes for prisoners? It takes prisoners out on temporary licence, pays them and finds them a job—this means they have money in the bank—and often finds them a home. That is why the programme is so successful in reducing reoffending. Does he agree that the scheme should be rolled out right across the prison system, particularly as by 2020 we will need around 1.8 million engineers throughout the UK?

--- Later in debate ---

[Richard Burgon]

That programme is certainly worth while and welcome. I have been arguing that the Bill should refer specifically to such practice.

We need to know more about what the Secretary of State’s overall responsibility for the statutory aims will mean in practice. Who will decide whether she is fulfilling her responsibility? We welcome the additional powers for the inspector of prisons, but the inspector’s report will mean little, if not nothing, if its recommendations are simply ignored. As we have heard, the Bill will require the Secretary of State to respond within 90 days. It will be interesting to know how that time period was decided, but beyond responding to a report, what else will she be required to do?

Many stakeholders tell me that a failure to take any action in response to independent monitoring boards’ reports and inquest jury verdicts has contributed to the prisons crisis. The recent tragic death of Dean Saunders is a sad case study of what can go wrong when mental health issues and our prison system collide. Has the Secretary of State considered whether she or prison governors should be required to respond to such findings? Could the role of the governor be more effectively scrutinised through a system of peer-to-peer review across the prison estate—whether public or private?

The urgent notification system is welcome, but how did the Government arrive at the 28-day time limit for a response? Does the concept of urgency not demand a shorter period? There have been past attempts to put the prisons and probation ombudsman on a statutory footing. Perhaps that is now within reach, but that is all the Bill will achieve in this regard. What thought did the Secretary of State give to expanding or augmenting the ombudsman’s powers? There is nothing in the Bill that addresses the need to improve the experience of and care for those who come to prison with mental health problems, or that addresses whether prison is even the right place for many of them in the first place.

Blocking the use of unauthorised mobile phones in prisons is clearly an urgent task, which we of course fully support, but other measures could be taken to complement the innovation in the Bill and reduce the trade in mobile phones. Committed and hardened criminals will seek out mobile phones to try to continue their criminal enterprises and activities from inside our prisons. For those prisoners who just want to phone home or phone a friend, greater access to affordable pay phones for monitored calls will help to reduce the demand for mobiles. Currently, some prisons have pay phones in cells, but most have pay phones only on the prison wing, which means that, at association time, the prisoners end up queuing to use the phone, and they may not get to use it before their association time is up. Better access to affordable pay phones and privacy from other inmates will reduce the demand for mobile phones. We welcome the Government’s measures to block the unauthorised use of mobile phones.

Developing and using an effective way of testing for psychoactive substances is also vital. However, that alone will not deal with the demand and supply of those substances. Recent reports from the inspectorate have found that overcrowding and a shortage of prison officers means that intelligence-led drugs tests are, sadly, a rarity. The best and most effective way of reducing the demand for drugs is to ensure a full and purposeful programme for all prisoners so that their time in prison is occupied.

Many of these problems with which we now grapple can be linked with the disastrous decision to cut prison officer numbers by 7,000—or 30% since 2010. The public sector pay freeze has made recruitment more difficult and without sufficient numbers of officers in prisons, order cannot be maintained. Officers do not have time to mix with prisoners and gather intelligence or to conduct searches, fabric checks of cells, and drugs testing.

[Rob Marris]

In that context of insufficient staff, does my hon. Friend join me in welcoming the establishment of a prisons and probation ombudsman with considerable powers, including one to direct the form of the response to be made by the Secretary of State to a report from the ombudsman? It is a considerable power. To have a strong ombudsman who would be prepared, if necessary and in certain circumstances, to face up to the Secretary of State is a powerful protection when that ombudsman investigates deaths as well as other complaints.

[Richard Burgon]

That is a very important point. We support a strong ombudsman, and we want reassurances that the Secretary of State will have to not just respond to the ombudsman, but take action on the basis of the findings of the ombudsman.

Prisons officers to whom I speak want to help offenders turn their lives around. They want more responsibility and to be part of a valued profession. They do not want to be viewed just as turnkeys, but successive Conservative Secretaries of State have diminished their role.

As mentioned earlier, the Government have set out plans for league tables and greater autonomy for prison governors. One wonders why the Government are persisting with the league tables idea when it was first dismissed by the chief inspector of prisons, Peter Clarke, at the Justice Committee in January. The Prison Governors Association has said that league tables

“will not achieve anything other than to risk demoralising staff and of unfairly judging the senior management team”.

Perhaps that was what prompted the Under-Secretary of State for Justice, the hon. Member for East Surrey (Mr Gyimah), to tell the Justice Committee that it would be performance data. The PGA also fears increased governor autonomy coinciding with increased responsibility for the Justice Secretary may result—heaven forbid—in blame being pushed its way. It says:

“Governors are being asked to sign up to agreements, which will become effective in just five weeks, with insufficient detail on what they will be held to account for. The risk is that the prison reform bill will become the prison blame bill”.

Further inroads into overcrowding and chaos could be made by considering who is being remanded and why, whether some offenders with mental health problems need a different approach and by dealing with the backlog of imprisonment for public protection prisoners. None the less, we see insufficient action to address any of those things. We were told that this Bill would transform the lives of offenders, but just saying that that is the case will not make it so. Transforming lives means first transforming the system.

I shall return to the subject of courts and tribunals, which I touched on earlier. Since 2010 Government legal aid cuts have robbed thousands of the legal representation that should be their right. Many of them are those who are most in need of legal representation—for example, people who are in debt, claiming welfare benefits, facing marital breakdown or experiencing housing problems. In 2012-13, 724,243 civil law cases were funded by legal aid; after the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 were introduced, that figure plummeted to 258,460. I realise that some Government Members will toast those figures as evidence of a job well done, but in reality what are they but proof of access to justice denied?

The coalition Government introduced employment tribunal fees. That measure resulted in a 70% reduction in the number of cases brought. The long delayed review I mentioned earlier essentially concluded, “There’s nothing to see here.” It said:

“While there is clear evidence that ET fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so.”

If only illegal treatment by employers flouting the law of the land had been reduced by 70%. Instead, it is the number of cases that has fallen by 70%.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

If someone can get something for nothing, are they not likely to take it up? That was the core problem with employment tribunals when people had to pay nothing to get access. It is right that if one goes to court, one pays some sort of fee.

[Richard Burgon]

That is a very useful intervention because it makes clear the Conservative view of access to justice. Something for nothing? If somebody has not been paid the national minimum wage, why should they be charged to get the money back? If someone has not been paid their proper wage or has experienced disability, maternity or pregnancy-related discrimination, it is outrageous to say that they are seeking something for nothing.

That intervention takes me back to when I was an employment lawyer acting for the people the hon. Gentleman dismisses in such a cavalier fashion. I remember the first time I lodged a case after the coalition Government introduced employment tribunal fees. On the Employment Tribunal Service website, it said, “Customer, please enter your credit card details.” Is that not shameful? When we regard citizens who are attempting to assert their statutory rights—rights made in this place, such as the right to the minimum wage and the right not to be discriminated against at work—primarily as consumers, it shows that the priorities of our society and our justice system have been warped by the Government.

[Rob Marris]

Does my hon. Friend agree that part of the difference is that some Government Members apparently have overlooked the fact that very often employment tribunal cases are brought by people who have no job? They have no income. That is why they are bringing a tribunal case. It is very different from a big commercial dispute, where court fees are paid for access to justice, to charge tribunal fees to people who have no income and no job, and that is the substance of their complaint to the tribunal.

[Richard Burgon]

My hon. Friend makes an important point. I would also give the example of people being charged employment tribunal fees that exceed the underpayment of the wage about which they are complaining. That really discourages claims.

[Sir Oliver Heald]

The hon. Gentleman fails to mention that the policy was designed in part to increase the number of cases that are conciliated. Now, instead of 23,000 cases a year going to ACAS, 92,000 do and half of them are resolved, and of course it is free.

[Richard Burgon]

The coalition Government’s objective in introducing employment tribunal fees was to strengthen the hand of employers, including unscrupulous ones, and to weaken the hand of individual employees. That is what the policy was about and that is why it has worked from the Government’s perspective. The ACAS conciliation now offered as compulsory conciliation is not the same as the role of ACAS in the past when people issued an employment tribunal case. No professional advice is given on the value of the case. Just because a claim has not been issued or a matter has been discontinued does not mean that it has been resolved satisfactorily with both parties on an equal footing. To make it clear, Labour would abolish employment tribunal fees because Labour believes in access to justice.

[Mr Djanogly]

indicated dissent.

[Richard Burgon]

The hon. Gentleman shakes his head, but his earlier comments about people looking for something for nothing show how out of touch he is.

[Mr Djanogly]

It is quite the opposite. I am suggesting that the hon. Gentleman’s policy would be giving something for nothing.

[Richard Burgon]

More than implicit in the hon. Gentleman’s ill-considered comments is that allowing people to seek justice in the employment courts without paying money is a something-for-nothing practice. That is a disgraceful comment, which we look forward to publicising as widely as we can. The Government need to think again when it comes to employment tribunal fees.

[Sir Oliver Heald]

What is wrong with moving from a system where very many cases go to the employment tribunal to one where most cases are conciliated? It is a much easier way for people to get justice.

[Richard Burgon]

The problem is that the price that is being paid is that of access to justice, and that is unacceptable to the Labour party at least. Are the Government seriously contending that 70% of claims brought before 2013 were somehow fraudulent? If so, that is absolutely outrageous.

[Rob Marris]

Would my hon. Friend repeat the figures? I thought he said, in round terms, that there were half a million fewer cases after the changes, but the Minister has indicated that 70,000 more cases go to arbitration. That is a big gap—it is still more than 400,000 people who are not getting access to justice.

[Richard Burgon]

That is completely right. My final point on the subject, before I move on to the closures of courts and tribunals, is that the introduction of employment tribunal fees has harmed not only those who would bring a case, but those who would never dream of bringing a case. If employers know that there is virtually no chance of an employee bringing a case against them if they break the law, it gives unscrupulous employers the green light because they know that the risk of being held to account is so much diminished. This goes to the root of what access to justice is. Legal rights are basically worthless if we cannot enforce them or rely upon them because of lack of resources or for any other reasons.

Two Government programmes earmarked a total of 243 courts and tribunals for closure. This has obvious and long-lasting effects on the principle of local justice. The cuts have led to an increase in the number of people forced to represent themselves. As far back as 2014, figures such as the Lord Chief Justice, Lord Thomas, were warning of the rise in unrepresented litigants—litigants in person. The Justice Committee’s 2015 report into the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 said:

“The result is that the courts are having to expend more resources to assist litigants in person and require more funding to cope”.

We know that, and we know that litigants in person clog up the court system and make it less efficient.

As Members of Parliament, our weekend advice sessions are full of people who need a lawyer, but cannot get one. Ministers seem to treat the involvement of lawyers in litigation or potential litigation as a fundamentally bad thing. That misses much of the point. Those hon. Members who have ever needed to use a lawyer or who have ever been lawyers themselves will know the valuable role lawyers play in dissuading clients from ill-advised litigation, in encouraging settlements that are fair and beneficial to clients where possible, and in shortening the proceedings in court.

In that respect, the prohibition in part 2 on cross-examination by the abuser of the abused is, of course, very welcome. The stark evidence from groups such as Women’s Aid is that this gap in the law was being used as a further means of control and abuse. Despite the fact that we very much welcome this measure, it cannot be left unsaid that the reason this serious problem became so pronounced was the Government’s legal aid cuts, which exacerbated it in a very damaging and profound way, and Resolution—the body of family solicitors—makes that clear:

“The impact of LASPO has led to an increase in litigants in person, meaning we’ve seen a rise in the number of defendants cross-examining those they have abused.”

Let me turn to the subject of modernisation. Few will disagree that the court system needs modernising and digitising—some would say it is in more need of modernisation than this place. There remains too much paper involved, when technology has made it possible for much documentation to be stored, referenced, annotated and amended using tablets and the like. However, technology alone does not demolish barriers to justice, and it can exacerbate the risks. The Opposition favour streamlining justice and reducing unnecessary court hearings, and we recognise that part 2 seeks to achieve that, but as the chair of the Bar Council, Andrew Langdon, QC, has warned, the fact that online courts

“might encourage defendants to plead guilty out of convenience, when in fact they may not be guilty of an offence, no matter how small, risks injustice.”

We have to be mindful of that. In its briefing on the Bill, the Law Society also issued a caution, saying:

“Although we welcome the introduction of these measures as a way to improve efficiency, there are serious risks associated with them in the absence of adequate access to legal advice. Safeguards must be in place to ensure that a defendant is aware of the consequences of indicating their plea in writing and the other measures highlighted above.”

Online courts, again, present the opportunity for a modern and desirable way of using technology to reduce court hearings and, hopefully, to deal with preliminary matters efficiently. However, the Law Society, again in its briefing, cautions that online convictions should be thoroughly tested and reviewed before being expanded. The Opposition therefore hope the Government will be open to amendments that allow for reviews to take place after a specified time. That would seem sensible. Virtual hearings, procedures on papers only, and written plea and mode-of-trial procedures will all need to be reviewed in time. The Government need to give closer consideration to safeguards, and we will seek to put those in place.

On whiplash, the clauses in part 5 will have come as a relief to many. The Government have backed away from increasing the small claims limit across personal injury, and that is welcome. However, they see a personal injury lawyer lurking around every corner—the Minister with responsibility for courts and tribunals even mistook me for one. [Interruption.] There is a former personal injury lawyer behind me—my hon. Friend the Member for Wolverhampton South West (Rob Marris)—although he has only one job now. However, the Association of Personal Injury Lawyers made it clear in written evidence to the Justice Committee that even

“when whiplash statistics are combined with the number of injuries registered by insurers with the CRU”—

the Compensation Recovery Unit—

“as ‘neck and back’ injuries, there has been”,

as I said earlier,

“a significant fall of 11 per cent since 2011/2012.”

Profound problems also exist with the tariff system proposed. As the Government have accepted, the amounts they have set out elsewhere are low. However, they are too low, and compensation must be commensurate with the severity of an injury. If those tariffs are taken together with the increase in the small claims limit to £5,000, no victims of road traffic accidents—not only victims of whiplash—would be entitled to recover legal costs where the compensation did not exceed £5,000. That will inevitably deter people from accessing legal representation and deter genuine claims. The Government should consider ensuring that victims of road traffic accidents are able to recover their legal costs.

We have heard repeatedly—this was touched on earlier—that the proposals in the Bill will lead to premiums reducing by as much as £40 a year on average. The Law Society has questioned the accuracy of these figures, saying that the pass rates on which they are predicated are difficult to predict and it is unclear how the 85% savings rate has been calculated. As my hon. Friend the Member for Wolverhampton South West said, it is a matter of evidence—or, in this case, a lack of it. Most obviously, there is no mechanism by which insurers can be made to pass on any savings to consumers. We hear a lot of insults thrown at the British people about a rampant claims culture and people being on the make and on the fiddle, but a lot less about the behaviour of some insurers in failing to defend weak claims and how much the insurance industry is making out of all this. Only a tiny minority of insurance companies have said that they will pass on any savings. The Government need to take action to win those guarantees.

I look forward to the remainder of this debate. As I said, Labour does not oppose the Bill on Second Reading, but we do lament the fact that it lacks so much. I suggest that the Bill itself must transform if it is to transform.

Prisons and Courts Bill (First sitting)

Richard Burgon Excerpts

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

[Matt Warman]

Q ROTL is routine at somewhere like North Sea Camp—that demonstrates the variation across the estate currently.

Rachel O'Brien: Absolutely.

[Richard Burgon (Leeds East) (Lab)]

Q I want to return to the subject of staffing. The Minister mentioned the 6:1 ratio in terms of staff caseloads; I want to raise a different ratio. We have already heard about the 7,000 reduction in prison officers since 2010. We have also heard about the aim to have a 2,500 increase. On Second Reading, there was some discussion in the Chamber of the need for prison staff to prisoner ratios. In their experience, do panel members think this could be helpful—a ratio of prison officers to inmates?

Martin Lomas: It might, but I am not sure. It is quite a crude measure, and what matters is the outcome and whether there is a quality to the supervision—that prisoners have confidence in the staff around them, that the staff around them are effective and trained, as has already been referred to, and that those prison officers, in a sense, are confident in what they are doing. I think it might be useful, but equally prisons are endlessly complex, have differing requirements, face differing risks, and have different geography, which will all inform the numbers of people you will need.

[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.

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[Mr Gyimah]

Q I would like to ask a question and get the panel’s views about accountability in the new prison system and how that works. Starting with Mr Lomas, what difference do you think the Bill will make to the effectiveness of the prisons inspectorate? Could you also comment particularly on how you see the notification trigger being used?

Martin Lomas: We think this is an important step forward. We think the Bill is helpful and useful. We have already talked about what it says to those who run institutions, with regard to their purpose and what they are meant to be doing. As far as the inspectorate is concerned, we believe it strengthens our institutional framework. It recognises us formally as an entity and clarifies our powers. At one level, those powers have not changed, but the Bill clarifies them, which is important in terms of asserting our independence and reflecting the public’s understanding of what we are about. We believe that the reference to OPCAT—the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment—is absolutely critical in emphasising the independence of the inspectorate and consequentially its authority and ability to speak to issues and to all stakeholders, including the Government and others.

We believe the specifics around the requirement to respond on recommendations—reflecting current practice, but raising the importance of the process, formalising it, and making it more accountable—is a very big step forward in terms of our impact. Added to that, the notification arrangement and the significant concerns that are referred to again reflect practice. We would not walk away from a disastrous prison and not do something. We do act, and in fairness to the National Offender Management Service as it is now—Her Majesty’s Prison and Probation Service—it does respond in those circumstances. This is about making that process more transparent and accountable and putting names to the responsibilities. It is most definitely a step forward.

Rachel O'Brien: I agree with all of that. We recommended that stronger role for the inspectorate. There is a question about what happens in between inspections; that is sometimes a bit strange. There are top-level things that drive change for the three or four years in between. That is a question that we did not answer. We looked at the possible role of the independent monitoring boards, for example, to look at the more institutional day-by-day changes in the shorter term, but also new issues that might come up. The danger is that sometimes we say, “Those are the three priorities” and meanwhile something changes over here, in the local drugs market or whatever it is, so there is a question about what happens in between.

My overall accountability freedom issue would be that I worry about the balance. There are a lot of new accountabilities, still from the top-down league tables. Are those governors and new group directors going to have sufficient freedoms to make local decisions? That is the key question. That cannot be defined in primary legislation; it is much more about the narrative coming out from Government and so on.

Joe Simpson: The POA welcomes the changes, but do not think they go far enough, both for the chief inspector and for the Prisons and Probation Ombudsman. We would like to see the same legislative powers given to them as the Health and Safety Executive. If someone is going to inspect prisons, then inspect prisons and everything that goes on. If there are recommendations, someone should turn round and say to the governor “You are not doing something right.” If we are giving governors autonomy, it is not the Secretary of State who is running the prison—it is the governor. He is the employer and the person who is in charge of that prison, so they should get the 28-day notice. What is the point in putting that all the way back up for the Secretary of State, so that she can say, “Yes, we have an action plan”? We would rather see something coming from the chief inspector of prisons go to the governor to improve things, and if they do not improve them, the legislative powers akin to the Health and Safety Executive given to the chief inspector and the PPO. If we are going to have independence—the independent scrutiny of prisons and the independence over deaths in prisons—they should have that legislative power to turn round and make things change, rather than wishing for it.

[Richard Burgon]

Q I have two questions. First, following on from what Joe has just said, should the inspector review the resourcing and availability of staffing in prison, and should this Bill legislate to enable that?

Joe Simpson: Yes, because we have got a chief inspector of prisons and you cannot just go and do some parts of a prison and not do it all. You have got to look at everything. You have got to look at the safety—are there enough staff, are staff being looked after, are assaults against staff being investigated properly? Then you have to make the recommendations to the governor to get it right.

[Richard Burgon]

Q When you mention staff, Joe, is there a level of staffing beneath which you believe it is dangerous to go?

Joe Simpson: There is, yes. You have to have enough staff to do what we call the basics—to ensure that prisoners are safe and getting their meals, access to medication, access to education and access to fresh air and exercise. That is the basic minimum we can give, and everything above it is what we term the fluffy parts of prison. At the moment we are operating at that level. We believe that if the chief inspector has that legislative power things will change, because the governor becomes accountable and so does the Secretary of State.

[Mr Gyimah]

Q The role of the Secretary of State in the Bill is to be responsible for the whole system and accountable to Parliament. Just to make it clear, are you arguing that somehow the Secretary of State should not be in this loop at all, and that it should all be about the governor? In which case, how is the Secretary of State responsible for the system?

Joe Simpson: What I am saying is that if the chief inspector goes in and has the 28-day order, the notification to change something comes to the Secretary of State—it does not go to the person who can make that change. The Secretary of State gets it, and then you have a three-month intervention. They then come back down to the governor to say, “This is what is wrong. What are you going to do about it?” They give the plan, it comes back up to the Secretary of State, and then the Secretary of State announces it to Parliament. Why do we not just give it to the governor and, for want of a better word, copy the Secretary of State in so that they know what is happening? Then if things are not improving, the Secretary of State intervenes once the chief inspector turns around and says they need to do that.

[Mr Gyimah]

Q There is a line management structure that goes from the Secretary of State through HMPPS and the governor. If a prison is failing—for want of a better word—it makes sense to have the person who is accountable for the system, and the line managers of the prison, be aware of it and take action with the governor.

Joe Simpson: My answer to that is, why has not anyone done anything about HMP Featherstone?

[Richard Burgon]

Q The prisons and probation ombudsman touched on this earlier, and I just want to give everyone on the panel the opportunity to respond. The Howard League, the Prison Reform Trust and the Prison Officers Association have all highlighted the need for the purpose of prisons to commit to decent and fair conditions. The wording comes from Lord Woolf, who set it out in 1991. Would the panel members prefer the Bill to clarify that with reference to “decent” and “fair”, as set out by Lord Woolf in 1991?

Nigel Newcomen: Having made that point previously, I have to repeat that it merits consideration at least. I stick with my previous balancing point: we need to minimise the verbosity of the statements and limit the words, although maintaining an environment that is safe and secure will not necessarily ensure an outcome that is a “decent environment”, let alone a “fair environment” —again, Lord Woolf’s phrase. I hope that as the Bill goes through Parliament that will at least be explored.

Martin Lomas: I agree with that. In the inspectorate, one of our key judgments is “return of respect”. It is essentially saying the same thing and we see it as significant in defining a healthy prison.

Rachel O'Brien: I agree. For a long time, “decent, safe and secure” has been the vision, if you go into most prisons. Having that vision should be absolutely fundamental for institutions. How the new stuff is interpreted and kept simple and straightforward is what really interests me, as we talked about before.

Joe Simpson: We welcomed it. I was at Strangeways when it was done and we welcomed everything that was said. Yet again, it is another report that is gathering dust. We have seen this with different reports since I joined in 1987. My colleague has already had a go at the Corston report; it is 10 years old and nothing has happened. There has been the Mubarek report and the Woolf inquiry to end over-crowding—nothing has happened with any of that. If we are going to have a report, let us do what it recommends.

[The Chair]

We are coming to the end of the session. Two Members are indicating a wish to speak. We will take their questions and, if any Members wish to declare any interests, they can do so before we wrap up.

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

I declare an interest as a non-practising former barrister. I am still owed certain fees by the state and insurers even after seven long years, and I wrote a book called “Doing Time”, which unaccountably has not sold out, on prison reform—so I declare its existence.

[Richard Burgon]

I am a former practising solicitor—I am non-practising now. I used to be an employee of Thompsons solicitors who have an interest in matters discussed this afternoon.

[Yasmin Qureshi]

I was also a practising barrister. I stopped practising in 2010 but I have recently become a door tenant and I can now practise and may choose to practise.

Prisons and Courts Bill (Second sitting)

Richard Burgon Excerpts

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

[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 On employment tribunals, I would be interested to hear what Richard Miller from the Law Society has to say. Our position on employment tribunal fees is well known. We would abolish the fees that were brought in in 2013 because we believe, among other things, that they have a really negative affect on access to justice, with a 70% reduction in cases being brought. Richard, are you in a position to give your view on the effect of the introduction of employment tribunal fees on access to justice in the employment courts?

Richard Miller: The Law Society is well aware of the research showing the 70% reduction, and what is more significant about the figure is that there has been no change in the proportion of successful cases. That means that legitimate cases have been deterred in the same proportion as frivolous ones. We think that the evidence makes it crystal clear that a lot of people who previously would have had access to tribunals to get justice in employment disputes are now not getting it.

[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?

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[Sir Oliver Heald]

Q If there are some savings here, is it right that Aviva has said that they will pass them on to the customer?

Rob Townend: Absolutely. We will guarantee to pass on 100% of the savings through the premiums.

[Richard Burgon]

Q Can I just start by clarifying with the Aviva representative that Aviva has chosen to pass that saving on? That is not compulsory; it is your organisation’s choice to do that.

Rob Townend: It is our commitment as an organisation. Most of you are aware of how the market works; it is a highly competitive motor market. There are a lot of underwriters and business providers. Whether claims costs increase or reduce, they typically flow through to our premiums.

[Richard Burgon]

Q To the best of your knowledge—obviously, you will know all about your competitors—is Aviva in a minority in taking this position to pass on the saving?

Rob Townend: I know others have. I do not know whether James knows more.

James Dalton: There are firms that, like Aviva, have committed to pass on the savings. As Rob said, the market is highly competitive. There are 97 businesses in the UK that write car insurance. If one firm fails to pass on the savings—that may happen—the premiums charged by that firm will be higher, so consumers will switch. There is a report out from the Competition and Markets Authority this morning that indicates that over 80% of consumers use a price comparison website each year to shop around for insurance. It is a highly competitive market, and the dynamics of that competition will ensure that savings are passed on to consumers.

[Richard Burgon]

Q So there is no figure at moment about how many of the 97 competitors have adopted Aviva’s approach? We do not know whether it is a minority or a majority of them?

James Dalton: There is no figure.

[Richard Burgon]

Q Finally, I would like to ask each of the panel members, starting with Brett, why, in your opinion, the Government do not seek to better regulate claims management companies, which unlike solicitors are free to cold call potential customers?

Brett Dixon: In my opinion, the Bill is a missed opportunity to deal with the real drivers of these types of claims, and that is claims management companies. I can see the argument that, in some respects, if you do not regulate claims management companies—which we would firmly support—and you do not ban pre-medical offers and cold calling, you are creating a circumstance where someone who does not have a genuine claim might see this as a one-way bet. By that I mean that you might be encouraged by a claims management company to make a claim. I am told that insurers make pre-med offers without any medical evidence and you can, in effect, make it up and not be able to be called to account, because you can stop before there is medical evidence. If you take rogue claims management companies out of the equation and ban this insurance-led practice of making pre-med offers then I think you deal with most of the problems in the sector that we are hoping to deal with through the Bill and maintain the position of the genuine claimant who wants access to justice.

[Craig Tracey (North Warwickshire) (Con)]

Q I shall start with you, Mr Dalton. Obviously, the Government are keen to get a definition of whiplash in the Bill, and I think it will be key to this being successful that we get that definition right. Does the current framework definition hit all the right spots, or should we be looking at something else?

James Dalton: This is a critical point. Clause 61 defines whiplash: we have some significant concerns, which go to my earlier comment that the definition does not adequately include cover for back injuries: it includes neck and upper torso but does not include back. We think that is a really important part of the jigsaw that needs to be included within this legislative framework, so that you capture the right type of claims. The risk if you do not do that is that whiplash injuries will become back injuries and they are not covered by this legislation.

Rob Townend: I have the same answer, really. We do not want to see a loophole where back is excluded and you end up with two systems, one for neck and upper torso and one for back. It adds complexity and reduces the number of claims that are caught by the legislation by about 60%.

Brett Dixon: Clause 61, particularly clause 61(1), does contain provisions for further regulations. I think it is important to understand what is intended in the regulations and how that would interact with it. I sound one note of caution as a practitioner: it would be within the realms of a medic or a medical expert to define what whiplash is. If you were to ask a medic, or you were to ask a lawyer to give a go at what a medic would say, they would say it is soft tissue injury to the upper torso and neck that has been caused by hyperextension or hyperflexion. The mechanism is as important: some thought needs to be given to involving a medic in the way that regulations are drafted. That is the most important point.