Prisons and Courts Bill

Robert Neill Excerpts

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

[Elizabeth Truss]

The governor is accountable for what happens in their prison, but there is a line management structure through to the head of the Prison Service and, ultimately, the Secretary of State.

The Bill supports swifter responses to the devastating effect of psychoactive substances. There have been very serious cases on our prison estate. They fuel debt and violence and can have a serious impact on prisoners’ health. We rolled out new tests for psychoactive substances in September last year—we were the first jurisdiction in the world to do so. The Bill strengthens our ability to keep up with the speed at which substances evolve. It allows quicker testing for all newly identified psychoactive substances based on the generic definition of those substances set out in the Psychoactive Substances Act 2016.

We face challenges in our prisons that will not be solved in weeks or months, but I am absolutely determined to turn the situation around. We now have the resources to do so: we are investing an additional £100 million a year and we have a clear plan. The measures in the Bill provide a structure under which accountability and scrutiny can take place, so we will be able to see how our prisons improve over time.

The Bill introduces major reforms to the court and justice system, which I announced in my joint memorandum with the Lord Chief Justice and Senior President of Tribunals in September. It will introduce more virtual and online hearings, put in place greater protection for victims and witnesses, and provide greater support for our excellent judges and magistrates.

I want to take a moment to pay tribute to the Lord Chief Justice, John Thomas, a great reformer who has spearheaded these reforms and who will retire later this year. I also want to thank the Senior President of Tribunals. Their vision for a courts and tribunals system that is just, proportionate and accessible lies at the very heart of the reforms set out in the Bill. The reforms are a tribute to their tireless work, alongside other senior members of the judiciary.

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

On behalf of the Justice Committee, may I warmly associate myself with the Justice Secretary’s entirely appropriate comments on the Lord Chief Justice and the rest of the senior judiciary? Will she reflect on whether the Bill’s passage through the House may not provide an opportunity to revisit the retiring age of senior judiciary, which, at 70, runs against the behaviour of much of the rest of society and our economy?

[Elizabeth Truss]

I thank the Chairman of the Select Committee for introducing this hotly debated issue into our discussion on the Bill. The measure is not a part of the Bill. I have had discussions on this issue with the senior judiciary. We should certainly consider it in due course, but at the moment there is no consensus.

Yesterday, we announced that we are bringing forward the roll-out of reforms to allow rape victims to pre-record their cross examination, sparing them the trauma of giving evidence during trial. This follows successful pilots of measures for child victims of all crimes. This will not reduce the right to a fair trial. During the pilots for vulnerable victims there was no significant change in the conviction rate, but we did see more early guilty pleas and fewer cracked trials. That means less stress and trauma for all of those participating in the case.

I want to praise the determined leadership of the president of the Queen’s Bench Division, Sir Brian Leveson, and the senior presiding judge, Lord Justice Fulford. They have been vital in developing the plans for rolling out these provisions for child victims and victims of sexual offences in all Crown courts. Given that in some of our Crown courts, almost 50% of cases are sexual cases, this is a very important reform that will help us to support people who have to go through this terrible experience and to improve the situation for them.

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[Elizabeth Truss]

The west country is leading the way at the moment, and we are looking at how we can encourage courts across the country to do the same thing.

I am very pleased to say that civil justice is at the forefront of our reforms. I was proud to announce the new business and property courts last week with the Lord Chief Justice and the Chancellor of the High Court. These courts are the vanguard of our world-class civil justice system, making sure that global Britain leads the world in law. They will be based in London, Leeds, Bristol, Manchester and Cardiff, and they represent the fact that our courts and commercial courts serve not only the City of London, which is of course important, but significant regional centres across the country.

[Robert Neill]

I promise that this intervention is uncontroversial. Does my right hon. Friend agree that, as well as the integrity of the judiciary, one of the strengths of our commercial courts is the ability to enforce judgments worldwide, and that includes within the European Union? Does she therefore accept that it is most important that the ability to enforce the judgments of our courts in the EU remains a top priority in our Brexit negotiations?

[Elizabeth Truss]

My hon. Friend is correct. As well as making sure that these commercial courts cover all the regions of our country, we need to make sure that there is mutual enforcement of judgments elsewhere. We have a commitment to do that as a Government; it is something that I have agreed with the Secretary of State for Exiting the European Union, and it is a priority for the Government’s negotiations.

This Bill introduces a new online court which will enable people to resolve civil claims of up to £25,000 simply and easily online. These online services will increase access to justice. It will reform procedures so that people can make witness statements rather than statutory declarations in relation to certain traffic and air quality offences in the county court. It means that people will not have to go into court to go through this process. The Bill will also streamline the use of “attachment of earnings” orders, giving the High Court the same power as the county court to make attachment of earnings orders in relation to judgment debts, and on the basis of a fixed deduction scheme.

We also want our excellent judiciary and magistrates to be better supported in the work they do. This Bill will allow judges in all our courts and tribunals to make greater and more effective use of authorised court staff, to assist them with tasks such as dealing with routine applications or ensuring compliance with court directions. This will allow our judiciary to prioritise their time and expertise on the matters where they are needed most. 

The Bill will bring the legislative framework for the employment tribunal system into closer alignment with that of the wider tribunals system. It will confer responsibility for making procedural rules to the Tribunal Procedure Committee. Employment judges will be able to delegate routine tasks to appropriately trained or qualified staff. Overall, these reforms will benefit tribunal users, whose cases will be resolved more quickly and proportionately.

We have the most highly regarded judiciary in the world; they are a beacon of independence, expertise and commitment to the rule of law. The Lord Chief Justice and I are working closely together to make sure that we have the strongest possible role for judges and magistrates in a transformed and modern justice system. We are putting in place reforms that recognise magistrates as an integral part of this judicial family. The judiciary is an important part of our constitution and its continued independence is vital for the rule of law. We must continue to uphold the very high standards and to select its members purely on merit. That means ensuring that people want to apply, feel valued and have good working conditions. I value the work that the judiciary does, from the magistrates and tribunals to the High Court and the Supreme Court. As Lord Chancellor, I am determined to support them in all they do.

Part 4 takes forward measures to ensure that our judiciary have the support and opportunities they need for a fulfilling and successful career. This Bill will strengthen leadership structures in the judiciary, supporting our wider work to provide clear career progression for judges, and ensuring that the widest possible range of talent comes into our judiciary. It will make it easier for the judiciary to deploy judges more flexibly, allowing judges to gain experience of different types of cases and helping with their career progression. The Bill will also enable the Judicial Appointments Commission to assist with selection exercises in other parts of the world, sharing the leading expertise within the commission.

Part 5 tackles the rampant compensation culture that has developed around whiplash claims—

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

I thank the Lord Chancellor and Secretary of State, as did her shadow, for the courtesy that she has shown to me as Chair of the Select Committee in keeping me apprised of the progress of this Bill. That is very welcome. Although there have been occasions when the Committee has come up with constructive—I hope—criticism or intentions contra to the Government’s, the whole ministerial team has always engaged with us very positively. I very much welcome the Bill and the tone of her speech. This is an important Bill because, first, it deals with some very important topics; and, secondly, it is wide enough in scope to merit acting as a framework for further improvement as we go forward.

I will start with, but not confine myself to, prisons, because that is obviously the most significant issue on my right hon. Friend’s agenda, and perhaps the matter of greatest concern to the Justice Committee. We have issued a number of reports during this Parliament, as in the previous one, about the situation in our prisons. Let us be blunt: the situation is grim. That is not the doing of my right hon. Friend; it has grown up over a number of years and under the watch of Governments of different political complexions. We now need to tackle it as a matter of real urgency. There is no single reason why we have got into this difficulty in our prisons; a number of factors are involved. Similarly, therefore, there is no single silver bullet as a solution.

The Bill contains a very valuable and worthwhile framework on which to hang a wider suite of reforms. I very much hope that my right hon. Friend will take courage to be bold and radical in those reforms. Conservative Members should not be afraid of being advocates of prison reform, which is a fundamentally important social cause. I am proud to be a member of a party that has a long tradition of advocating social reform running back through Wilberforce, Shaftesbury, and the reforming work of Disraeli’s second Administration that was done by Richard Cross, his Home Secretary, and others. My right hon. Friend, who takes on the proposals of my right hon. Friend the Member for Surrey Heath (Michael Gove), follows in a radical Tory tradition that I welcome and for which we should not be afraid to make the case.

[Dr Poulter]

My hon. Friend is making a valuable contribution. I agree with him about the many merits of this Bill. Does he not agree, though, that it is a missed opportunity to improve opportunities for prisoners and reduce reoffending, because improving and protecting the mental health of prisoners is not mentioned in clause 1?

[Robert Neill]

My hon. Friend makes a perfectly fair point. I imagine that it will be almost impossible to put every single objective into the Bill, and I suspect that Ministers will say that the objectives are intended to be broad and overarching, but the issue of mental health in prisons is a most profound and important one, and I would have no objection were it to be in the Bill. Equally, however, the most important thing is the political good will of Ministers in ensuring that it is made a top priority within the framework of the Bill as it stands. I hope that he and I, and others who share our concerns about this across the House, will be able to work hard to make sure that that is delivered, as this is one of the areas of prison reform that we need to tackle.

We are seeking to provide a legal framework. Part of that is in the Bill; the rest is set out in the important measures in the White Paper, which was a very significant and progressive—in the right sense of the word—document.

[Dr Poulter]

rose—

[Robert Neill]

Let me just make this point and I will give way to my hon. Friend again, because I know of his expertise and interest in these matters.

We need to recognise across the House that we must have the political will to tackle reform. That includes creating a climate of public opinion that accepts that prison reform is not a soft option—that it is done not out of a kind of soft-headed liberalism or do-goodism but for sound and profound social, moral and ethical reasons—and that it brings with it real societal and economic benefits.

[Dr Poulter]

As my hon. Friend will be aware, the White Paper sets out a whole range of proposals to deal with increasing violence and self-harm, and persistently high levels of reoffending. Given, as he said, the profound connection between poor mental health in prisoners and these issues—including substance misuse, which is often linked with poor mental health—I find it very surprising that clause 1 does not mention improving the mental health of prisoners.

[Robert Neill]

I suspect that my hon. Friend will return to that topic as the Bill progresses, and there will be other opportunities for others to do so as well. In the course of our ongoing inquiries into prison reform, the Select Committee has taken some evidence on the difficulties in mental health provision. Practitioners from the Prison Service came to give evidence to us very recently. It is certainly a topic that we will return to and that others may well address, even in the course of this debate.

[Sir Edward Garnier]

My hon. Friend mentioned, correctly, the need for political will. However, if members of the public are asked, individually or on a more organised basis, what they think about the current state of our prisons and what needs to be done within our justice system, they are much more liberal than politicians give them credit for. We need to be braver and get on with this rather than allow ourselves to be pushed around by various disobliging organs of the media who want us to be more and more draconian in the way that we deal with prisons.

[Robert Neill]

My right hon. and learned Friend is absolutely right, and he moves me neatly on to the next thing I was going to say. That political will does sometimes require us to stand up against the writers of the lurid headlines and those who pose as the voices of public opinion but in fact seek to be manipulators of it, and to say the truth—that it is in everybody’s interest that we reduce reoffending because the more we do so, the fewer victims of crime there are, and that is in everybody’s interest. That is a good right-of-centre, as well as left-of-centre, case for undertaking prison reform, and we should make it across the House.

[Mrs Moon]

Does the hon. Gentleman agree that one of the ways in which we could dramatically cut reoffending would be to look at how many people are revolving-door entrants and leavers of prison, not because of criminal intent but because their mental health condition drives them to behave in a way that leads them, inevitably, into the arms of the police—the police are becoming social workers for the mentally ill—and into the criminal justice system rather than into our psychiatric hospitals, which are massively overcrowded and underfunded?

[Robert Neill]

The hon. Lady, who follows these issues closely, makes a very fair and reasonable point. That is a significant factor.

I practised as a criminal lawyer for the better part of 30 years. I both prosecuted and defended, so I have had no compunction about sending away people who have committed serious crimes. Equally, when I defended people and when I looked at some of those whom I prosecuted during that career, I saw some who were dangerous, unpleasant and, frankly, in some cases downright evil. They deserved to go to prison, and some of them deserved to go to prison for a very long time.

There were others who were weak and stupid, and some who were greedy. Sometimes—particularly for those who were greedy—that, too, deserved punishment, and prison was an apposite and appropriate punishment. There were also those who were weak or vulnerable, or who found themselves in situations where they were easily coerced. There were people who had made a series of errors in their lives, and others who suffered from physical or mental illnesses or from real social pressures around them.

We have to be much more discriminating and sophisticated in how we deal with defendants in our justice system. Prison does not always work. It works for some people, but not for everybody all the time, and we need to be brave enough to say that in political debate. As my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier), the former Solicitor General, rightly says, the public are much more alert to and realistic about that, and much more willing to buy that argument. We simply need to have the courage to make it.

[Philip Davies]

I do not know where my hon. Friends go out of an evening or during the day, but I am not sure that lawyers’ dinner parties accurately reflect public opinion at large. Does my hon. Friend accept—it is a fact—that since Michael Howard started the trend of sending more people to prison, the crime rate has fallen? What does my hon. Friend make of that direct correlation?

[Robert Neill]

To be blunt, I rather suspect that I met a broader cross-section of society in practice as a criminal lawyer than one would meet in the average bookmaker’s. We must be prepared to stand up and challenge stereotypes, wherever they come from on the political spectrum.

We diminish the value of prison if we adopt a knee-jerk approach and say that locking people up and throwing away the key is the best solution in all circumstances. It is the best solution for the dangerous. I had no compunction about saying that those in the Brinks-Mat trial, in which I was involved, deserved to go to prison for a very long time. One was later convicted of a very serious murder, and I thought that they should stay in prison for a very long time indeed. Equally, those who commit crimes to feed drug habits are not served by lengthy prison sentences. More to the point, the public are not served in the long run either.

The real difficulty that we face is that we incarcerate more people per 100,000 of population than virtually any of our western European comparators. That is more than Spain—and more than France, which has demographic, sociological and economic problems and indicators very similar to ours; it is a good comparator, in many respects. We incarcerate more than 140 people per 100,000 of population, while France incarcerates about 98. Our rate of incarceration is practically double that of Germany, a country that is also very similar to us in many other respects. That cannot be because of some greater inherent criminality on the part of the British people. It is simply that we do not have a sufficiently sophisticated suite of alternatives to custody to provide robust and publicly credible options, so sentencers often feel obliged to fall back on custody more than they do elsewhere.

The other point to bear in mind is that Germany and the Netherlands, in particular, do a better job of rehabilitating those who are in custody. We know that because their reoffending rates are much lower. I think the Government recognise, as do all other commentators, that short sentences very seldom have a positive effect. The Government are to be commended for saying that not only do we need to look at prison reform, in terms of what happens in prisons, but we need to look at what happens when people come through the gate; at the support that they get within the community; and at what diversionary activities can be established early on when people—particularly young people—come into contact with the criminal justice system, to make sure that they proceed no further down that path. It is an holistic approach, and the Government are right in that regard.

[Philip Davies]

My hon. Friend is being typically gracious and kind in giving way. Notwithstanding the point that he made, the fact of the matter is that for every 1,000 crimes committed in this country, only about 19 people are sent to prison. That is one of the lowest ratios of any country. Perhaps he can tell us in which countries the ratio of people who are sent to prison per 1,000 crimes committed is lower? That is the best measure of how many criminals we send to prison—not proportion of the population. We send very few criminals to prison per 1,000 crimes committed.

[Robert Neill]

My hon. Friend perhaps neglects to say that the reporting arrangements are very different in other countries, particularly when dealing with younger people in the criminal justice system. The different diversion work done in those countries does not allow for that kind of correlation.

I am not just talking about Europe. A number of states in the United States—we do not always think of them, particularly in current circumstances, as beacons of social progressiveness—are more effective than we are at rehabilitation, meaningful community penalties and reducing recidivism. Some of that work, I might add, has been carried out on the watch of Republican governors. There is often a value-for-money case for imprisoning fewer people, as well as a social outcomes case. We ought to be prepared to make the case for prison reform as an important objective of any Government.

To return to the thrust of my argument, the Bill is an important step in achieving such reform. Of course, there is a lot more that we need to work on which is not in the Bill. The statutory purpose of the Bill is a good one. I understand the point made by my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter) about what, specifically, should go in it, but I think that its overarching purpose is correct. The balance between the safety of the public and the inmate on the one hand, and reform, rehabilitation and improvement on the other, is the right set of principles to have.

New duties on the Secretary of State are important. I suspect that they probably are justiciable; none the less, it is important to have proper accountability mechanisms. The new power for the chief inspector of prisons—the right to a response to his reports—is especially important. The current chief inspector, Peter Clarke, is an excellent appointment. I had the privilege of shadowing his team while they carried out a prison inspection—it happened to be at the prison local to my right hon. Friend the Justice Secretary, in Norwich—and I saw how thorough and professional they were.

As my right hon. Friend and the prisons Minister know, and as we in the Select Committee know, one of the chief inspector’s great frustrations is the fact that in some cases, the bulk of his recommendations—not just a few, but sometimes an overwhelming majority—are not taken on board. It is important he can make sure that they are taken on board, and that a proper reason is given if they are not. Too often, his recommendations are repeatedly ignored by the same serial-offender prisons. This is an important legal step, which underpins progress.

The point has already been made about the prisons and probation ombudsman, and I agree with it entirely. These are important and welcome measures, as far as the prisons dimension is concerned, as are those to do with new psychoactive substances and interference with mobile phones. They are all important steps forward.

In the rest of the Bill, the modernisation of court proceedings is important and valuable. As the Bill progresses, I hope that the Government will bear in mind some of the caveats raised by practitioners, such as the Bar Council, the Law Society, the Criminal Bar Association and the Criminal Law Solicitors Association, to avoid unintended consequences. When dealing with things that might give rise to a conviction online, it is important for people to have the resources necessary to make an informed decision in relation to the plea, the means of election and so forth. Having such access will be important. This could be a very useful tool, and I know that the judiciary believes that it can be a good tool, but it is important to have informed decisions, and making guilty pleas online is an obvious example. Similarly, there is often a good case for having virtual hearings, but we need to make sure it does not drift into being the default position. We would obviously not have that for a trial, but we can think of other forms of interlocutory proceedings in which physical presence is appropriate, and we must make sure that we do not have too much of a broadbrush approach. However, the principle is good, and I have no problem with it.

On the whole question of dealing with the abuse of litigants in person in family cases—chapter 8 of the explanatory notes—I think the case is accepted across the piece. Such a system has worked well in the criminal jurisdiction for many years. When we set up in regulations the system of how this will work, I hope there will not be an attempt to over-complicate or over-engineer it. I urge my right hon. Friend the Secretary of State to take the criminal system and, as far as possible, lift it across with adjustments, which seems the sensible way to do it. Practitioners have made the point that when advocates are asked to take on such a role—in effect, on behalf of the court—they often take on a heavy burden. The instructions can be detailed and complex, and in my experience of such cases they frequently change depending on the nature of the person being dealt with, so the task is not easy. I therefore hope that rates of remuneration will not be any worse than in the criminal jurisdiction, because it is important to get good people to undertake this work.

Judicial appointments, which are important, have been mentioned. It is also important to bear in mind that leadership roles should be recognised, given the difficulty we have at the moment in recruiting proper High Court judges.

Moving on to part 5 on the whole question of whiplash—I will finish on this point—I do not think we can pretend that there is not an issue. The Select Committee has already heard evidence on this, and we will want to take more. Nobody can reasonably pretend that there is not an issue about whiplash, although there are disputes about whether the evidence base is strong, as was apparent in our hearings. I am glad that the Government have taken the step of moving to a system of tariffs, rather than having an outright prohibition on general damages. However, we will need to consider the devil in the detail in relation to the definition of whiplash in clause 61 and its subsections. At the moment, there is an ouster of the tariff system for breach of statutory duty, but, as practitioners have raised with me, one can of course envisage a number of circumstances in which it is possible to plead both negligence and a breach of statutory duty as alternatives. It might be self-defeating if we get an industry of people always seeking to put in an alternative head of claim to take it immediately out of the pure negligence category. Some careful drafting may be needed to look at the practical effects as far as that is concerned. Above all, we must not allow this to cause us to take our eye off the ball of the abuse by claims management companies. Good work is already being done by the Ministry and the Information Commissioner’s Office, but a lot of the problems stem from the work of the claims management companies, and it is important to look at that.

On that basis, I wish the Bill well. It is an important and valuable Bill. I am sure we will have lively and constructive debates, and I hope that I and other members of the Select Committee will, as appropriate, endeavour to assist the Government in making a good Bill better. I wish it well in its passage through the House.