Oral Answers to Questions

Robert Neill Excerpts

Tuesday 24th April 2018 Commons Chamber

[Mr Gauke]

The hon. Gentleman makes an important point. We are refreshing the way that training works for prison officers. It is very important that we deal with the issue of drugs, which has been a real game-changer in its effect on prisons. As we change and refresh our training process, we need to ensure that new prison officers have the skills they need to deal with drugs.

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

The net increase in the number of prison officers is very welcome, and I particularly welcome the Secretary of State’s reference to a key workers scheme, but does he agree that the mix of the workforce is important? Successful key worker and personal officer schemes will depend on having experienced staff, because they are best able to develop relationships with prisoners and deal with violence, the risk of suicide and other issues. Will a strategy now be put in place for the retention of existing staff, perhaps with incentives to encourage good people to remain in the service?

[Mr Gauke]

My hon. Friend is right; it is important that we not only recruit new staff, but retain existing staff. We are working closely with those prisons that are failing to retain staff. It is worth pointing out that in 2017 the percentage of prison officers in bands 3 to 5 who left the service was 9.7%—higher than we would like it, but not particularly out of line with other employers. Prison officers do a very valuable job, and we need to recognise that, support them and encourage those who have a lot to offer to continue to serve.

--- Later in debate ---

[Mr Gauke]

We will be updating the House in due course.

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

A year ago, virtually to the day, the legislative provisions of the Prisons and Courts Bill, which are necessary to implement Lord Briggs’s review of civil court structure, were lost in the Dissolution of Parliament. These important reforms are pressing and needed. Can the Secretary of State update us on when the Government intend to reintroduce legislation to enable the reforms to be progressed?

[Mr Gauke]

What I can say at this point is that I think we need to bring forward a number of aspects of that to help to modernise our court system. I hope to be able to make progress on that in the coming months.

Leaving the EU: Justice System

Robert Neill Excerpts

Thursday 29th March 2018 Westminster Hall

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

I beg to move,

That this House has considered the Ninth Report of the Justice Committee, Session 2016-17, implications of Brexit for the justice system, HC 750, and the Government response, HC 651.

It is a pleasure, Ms Buck, to serve under your chairmanship.

I am grateful for the opportunity to raise this very important issue here in Westminster Hall, and I thank all members of the Select Committee on Justice—both past and present, and many of them are here today—for the input that they made to our report, which of course was initially produced in the 2016-17 Session.

We received the Government response to our report on 1 December last year. I am glad to see the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), in her place today. She has joined the Department since that date, so if I press a little harder on some things than on others, I am sure she will understand that they are not meant in any personal spirit. I think she also understands, from her own experience at the Bar, why there is a great need for more precision and more detail about what is going to happen.

I can perhaps encapsulate the Committee’s concerns following the Government’s response to our report by saying that the response is long on good intentions and on setting out an ambitious vision, but short on specifics and the details of how that ambitious vision will be achieved, and there is a concern that it may not be realistically achievable. The European Parliament’s response earlier this month indicates that it is by no means persuaded that all of the Government’s ambitious ideas for taking this matter forward will be achievable. We need what the Government have set out to be written—or rather painted—in the boldest red ink.

I suspect, given the tenor of the Prime Minister’s Mansion House speech and subsequent events, that we will be pragmatic about some of these issues—indeed, both sides will need to be pragmatic. Because the law depends above all upon certainty, we will have to come to decisions and pragmatic compromises sooner rather than later. My objective in today’s debate is to press the Government further on the need to be more precise and specific about exactly how we will deal with these matters, and also, perhaps, to inject a sense of urgency.

Of course, I ought to refer to my entries in the Register of Members’ Financial Interests, although I do not practice law now. There is concern about the economic position of the English legal services sector post-Brexit. We had a debate about that yesterday in Westminster Hall, and I am grateful to the Minister for her response then. I am sure that we will want to discuss that matter further. I will not dwell on it in detail now, but it indicates how we need to be alert and on our guard if we wish to continue to protect the pre-eminence of our English legal system. It certainly enjoys international pre-eminence at the moment—it is the jurisdiction of choice for international commercial litigation and, of course, is regarded as a gold standard in independence, fairness and integrity. As I say, we have to be on our guard in case, post Brexit, other jurisdictions seek to compete with us—legitimately enough, from their point of view—because international commercial litigation, and particularly the variety of international contracts, is a competitive matter.

I notice that there is now an English language and English commercial law court being opened up in Paris. I must say that those of us who have practised in some of the Crown courts on the south-eastern circuit might have found the idea of a brief to go to Paris quite an attractive proposition by comparison to going, say, to Havering magistrates court. However, this is not an entirely jokey matter, because, as was indicated in the debate yesterday—I will not repeat all of my remarks from then—the English legal services sector is a very significant revenue earner for this country. I should say the British legal services sector, of course, as we should not forget Scotland in this regard. But there is a much broader issue here as well, which is encompassed in our report. A number of my hon. Friends want to talk about some of the specific matters in our report, so I will perhaps sketch over some of the broad outlines.

I have indicated our firm view that we need more detail, more precision and a greater sense of urgency. We must have assurance from the Government that legal issues are being entirely mainstreamed into the work of the Brexit negotiations. The Ministry of Justice has helpfully set up a legal services working group, but this is not just about legal services; it is also about the impact upon the judiciary and the operation of the courts, which, ultimately, are perhaps even more significant.

I know that the senior judiciary are extremely alive to this issue and are doing a lot of work on it themselves. However, I submit that, consistent with maintaining the judiciary’s independence, we need to find a means whereby the judiciary’s practical views and experience are genuinely fed in to those who are negotiating, for example, on our future relationship with the European Court of Justice and on how we deal with retained law, which I will come back to in a moment. I have to say that I am not yet convinced, whatever the good intentions and hard work of the Ministry of Justice, that that is fully feeding in to those who are negotiating for us through the Department for Exiting the European Union and in Brussels. The Government need to address that urgently. It seems to the Committee that we need clarity on those key issues of the position vis-à-vis the ECJ and retained law. There is still real concern about the effectiveness and adequacy of the provisions in clause 6 of the European Union (Withdrawal) Bill.

It is instructive, perhaps, to look at the evidence of the President of the Supreme Court, Baroness Hale of Richmond, given on 21 March, which is only about a week or so ago, to the Constitution Committee of the other place. In essence, the position is that at the moment, clause 6 gives what on the face of it would appear to be wide discretion in how the British courts will apply and have regard to European Community law once we have left. There is a perfectly understandable precedent, of course—it is perfectly well established that British courts will take into account relevant law from other jurisdictions when it is applicable to the facts and law of the case that they are considering.

However, there is a difficulty. There are phrases in the Bill stating, for example, that a tribunal “may have regard” to European Community law—there are those terms, “may” and “have regard”—but then there is a get-out clause stating that it

“need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.”

The President of the Supreme Court said that she found that drafting “very unhelpful”. If the President of the Supreme Court says that, the Government ought to sit up, take notice and do something about it.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making a really powerful point. Is not the issue here that judges do not want to be dragged into the political arena? Although courts have shown themselves well able to look at other jurisdictions for a potential steer on how to interpret things, when it comes to the EU the process is so overlaid with politics that judges could find themselves accused of becoming, in the phrase that we have heard, “enemies of the people”. We should not be in that field, and judges deserve the protection of knowing exactly what they are required to interpret.

[Robert Neill]

My hon. Friend is absolutely right, and the importance of that point cannot be overstated. I am absolutely confident that the Minister gets that point entirely, because we saw utterly disgraceful attacks by some of the press upon the judiciary for carrying out their constitutional task. Those words should never have been said, and I am glad to say that the current Justice Secretary and Lord Chancellor has made very clear his support for the independence of the judiciary and the respect with which that independence should be treated. I know that the Minister entirely shares that view.

My hon. Friend the Member for Cheltenham (Alex Chalk) is quite right. Broad wording on such a political topic lays the judges open to such things, because if they are obliged to act according to the clause that I mentioned—as they will be if it is passed in its current form—they will inevitably run the real risk of being accused of having taken, in effect, political decisions. That is why the President of the Supreme Court spoke in the way she did. She said:

“We don’t think ‘appropriate’ is the right sort of word to address to judges. We don’t do things because they are appropriate, we look at things because they are relevant and helpful. We do not want to be put in the position of appearing to make a political decision about what is and is not appropriate.”

That is exactly the point that my hon. Friend made so powerfully.

I know the clause is being debated in the other place, but as it stands it just does not give judges the protection to which they are legitimately entitled. I hope the Government will address that as a matter of urgency. That is not only the view of the current President of the Supreme Court; it has been echoed by her predecessor, Lord Neuberger, and by the previous Lord Chief Justice, Lord Thomas of Cwmgiedd. That is overwhelming and compelling evidence that there has to be movement on this point. It is time for the Government to do that. I suspect they would find good will across the House if they could find a means of properly addressing those concerns of the judiciary—one has to stress that those are their concerns.

The Attorney General said it was not the Government’s desire to put judges in that position. I entirely accept his good faith in that. He said:

“We will continue to work with them to provide the necessary clarity.”—[Official Report, 22 March 2018; Vol. 638, c. 389.]

That is good, but it has to be translated into legislation that is fit for purpose. We are not at that stage yet, and we need much more clarity. I hope that the Minister will be able to deal with that point and take it back to the Attorney General and those dealing with the Bill.

The issue of how we deal with the ECJ is important, but we also need to be realistic. If we want to continue some of the partnership arrangements we have, there will have to be dispute resolution processes. All the agreements will need an arbitral mechanism. I hope the Government will take on board the strong views of legal practitioners across the country that a desire to displace any role for the ECJ—as opposed to removing “direct jurisdiction”, to use the Prime Minister’s phrase, which is a different concept—may create more difficulties than is worthwhile. There are perhaps some limited areas, such as the interpretation of specific matters of financial services regulation and some matters of data regulation, where there might be sense in making a pragmatic compromise rather than having to set up a number of ad hoc arbitral mechanisms such as tribunals or whatever we might call them. That is a key and pressing issue.

There are other issues that concern the Committee on how we will deal with criminal justice and judicial co-operation. They have already been addressed at some length, and I know other colleagues will deal with them today. The point I stress is that the Prime Minister has already indicated her firm and resolute intention to have an ongoing agreement so that we can share in police and judicial co-operation and security co-operation. She is absolutely right to do that, and I support her in doing so, but we have to be realistic. If we are to benefit from such things as the European criminal records information exchange system, the work of Europol and the information exchange that is so critical to the pursuit of modern crime—whether that is terrorism or organised crime of other kinds—we have to have our data arrangements aligned. That must inevitably mean following the EU27’s data regulation and any jurisprudence that subsequently develops that touches on that. Otherwise, with the best will in the world, the police and security agencies in those EU27 countries, which include some of our most vital partners, will not be able to share information with us lawfully. We do not yet have clarity over how that will be dealt with, and we must have that swiftly.

There is also the issue of civil and family justice co-operation. I mentioned the importance of the civil sector, but we have to ensure that we have a firm arrangement for the mutual recognition and enforcement of judgments. That is certainly important for the commercial litigation sector, but it applies to all contractual arrangements. If someone has a contract, they want to be able to sue if it is breached. There needs to be a remedy that can realistically be enforced. We must have more clarity on that. As I have observed on more than one occasion, there are literally thousands of UK citizens—as it happens, most of them are mothers—who benefit from the ability to have maintenance payments enforced against former partners now living in other EU jurisdiction countries. It is unconscionable that those people, working hard under difficult circumstances, would lose the ability to have those payments enforced by a simple blanket mechanism. Warm words are not enough. That needs to be sorted out before we finally leave, whether that is in transition or the end state.

I hope that is a sufficient overview of some of our areas of concern and why we are pressing the Government on them. I look forward to the Minister’s response and the other contributions from colleagues on some of the other specific areas of this important debate, which I have no doubt the Justice Committee will return to in the coming weeks and months.

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[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Buck. I thank the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), and the other members of the Committee for their excellent report. I was a member of the Justice Committee from 2010 to 2015 and remember many such excellent reports.

The UK’s status as an international hub for legal and financial services and its attractiveness to businesses depend not only on access to the EU legal services market, but on its close and comprehensive cross-border and civil judicial co-operation. I will start by concentrating on three areas that most hon. Members have spoken about. First, in relation to civil justice, we are in a unique position where the judgments of our court are enforceable both in European Union member states and in many Commonwealth states. That is very important for the UK’s role as a hub for international litigation. Therefore, it is critical for British citizens, businesses and institutions that the Government maintain our position.

In civil and family law, European Union regulations provide certainty on what jurisdiction should hear disputes while allowing for the automatic recognition and enforcement of judgments throughout the EU. Does the Minister share our concern that cross-border divorce and child custody disputes could become much more difficult unless Britain can secure effective judicial co-operation arrangements with the European Union after Brexit?

Many hon. Members spoke about the criminal justice system. We must remember that crime, and especially more serious and organised crime, increasingly does not recognise national borders. Even the less serious crimes are increasingly likely to have a cross-border element. Foreign nationals who commit crime in the UK often flee abroad, and some crimes can be committed easily across national boundaries, such as child exploitation, fraud and identity theft. In the UK, there has been a massive increase in people trafficking offences. Police and the judicial authorities need to be able to co-operate internationally to combat crime and bring perpetrators to justice.

I hope the Minister agrees that co-operation through case-by-case contacts or even bilateral agreements is likely to be more cumbersome when we are out of the system, especially where several states are involved. Under our European Union framework, we have co-operated through mutual recognition of key elements of one another’s systems, with minimum standards applicable in all states for certain factors, together with mutual legal assistance measures that are understood and applied in all the member states.

As we withdraw from the European Union, can the Minister assure the House that her Government will secure the speedy arrests of suspects wanted by the British police with minimum bureaucracy via the use of the European arrest warrant? Does the Minister agree with the assessment of the EU Home Affairs Sub-Committee, which states:

“Any operational gap between the European Arrest Warrant ceasing to apply after Brexit and a suitable replacement coming into force would pose an unacceptable risk to the people of the UK”?

Given that it took Iceland and Norway 13 years to negotiate extradition agreements with the European Union, does the Minister believe that there will be a gap between the UK leaving the European arrest warrant and agreeing a replacement system?

What assessment has the Minister made of the impact on victims if there is no European arrest warrant agreement after the UK leaves the European Union? What are the Government’s proposals to deal with cross-border investigations into drug cartels, people trafficking networks and fraud? Will we be in a position to secure evidence from overseas using the mechanisms currently in use in the European Union? What mechanisms will be put in place so that we can rapidly access fingerprinting and other identification databases for overseas convictions, sentencing and other purposes, to which we currently have access? I am sure the Minister is aware of the growth in co-operation through Europol, Eurojust and the European Public Prosecutor, which has made it easier to deal with crime, especially when it crosses borders. What is the Government’s plan to replace those institutions or fill the gaps left by them?

The UK legal services market is worth £25.7 billion in total, employing 370,000 people and generating an estimated £3.3 billion of net export revenue in 2015. Central to that market is the ability of barristers, solicitors and other legal professionals to provide legal services in the EU. Equally important is the fact that, our exporters’ confidence in doing business abroad depends greatly on the ability of their lawyers to establish and provide services in the countries in which they seek to trade and invest. Numerous aspects of barristers’ and solicitors’ work will no longer be possible if we leave the European economic area, unless current cross-border rights are preserved.

Does the Minister agree that, in formulating their negotiating strategy, the Government should have regard to the nature of the legal work that comes to the UK as a consequence of the UK legal profession’s expertise, not least in European Union law? What measures are the Government taking to maintain cross-border legal practice rights and opportunities for the UK legal sector, given efforts by European Union law firms to use Brexit to win clients from UK competitors?

The European Union charter of fundamental rights sets out a range of civil, political and social rights enjoyed by European Union citizens. Why does this Government’s policy of incorporating EU law into UK law exclude the European Union charter of fundamental rights? Does the Minister agree that, in the light of everything said in the debate, there must be a continuing role for the European Court of Justice during this time?

Labour’s view is that, beyond a transitional phase, we would seek a shared court-like body to oversee disputes and enforce rights and protection. Obviously, the precise nature of this shared court is subject to negotiation. We are flexible about how that would be achieved. It is important that there is an independent court to oversee the close new agreement we reach with the EU. It is vital that that is done to ensure that individuals, institutions and countries can enforce and protect workplace rights, consumer rights, environmental rights and more.

[Robert Neill]

I have been listening with great care to the hon. Lady’s speech and I very much welcome the approach that she has adopted. She talks about a future court to enforce these matters, for which I have much sympathy, but does her party rule out participation in the EFTA court as being a potential solution to the problem she rightly highlights?

[Yasmin Qureshi]

I understand the hon. Gentleman’s question. Our position is that there should be a system. What that system entails and how it works is subject to negotiation, but we should have something that makes it easier to resolve issues.

In concluding, I want to summarise some of the things that hon. Members mentioned. My right hon. Friend the Member for Delyn (David Hanson) spoke about very important crime issues. My hon. Friend the Member for Enfield, Southgate (Bambos Charalambous) talked about the legal services sector and how we are ahead in it. My hon. Friend the Member for Stretford and Urmston (Kate Green) rightly spoke about the impact of our leaving the European Union on children and their rights. The hon. Member for Cheltenham (Alex Chalk) made the interesting point that crime, civil justice, children’s rights and legal services should not be bargaining chips, but should be placed on a separate track and taken out of the contentious political debate. That would be a helpful way forward. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) rightly raised the impact on Scotland.

Everyone is aware that numerous treaties will have to be made to cover each and every area of law we have talked about. We will need not one set of treaties but treaties with 27 or 28 countries, with some opting in and some opting out. It will be a lengthy and complex process. I reiterate the questions asked earlier. How far have the Ministry of Justice and the Government got with drafting the relevant legislation and treaties? Which have been written and which have not? How are they progressing? When will they come to Parliament for debate? When will we be able to feel that these things will happen? Real issues have been raised, and many Members feel that, when we leave, we may be without the systems we currently have that make the criminal and civil justice systems much easier to deal with.

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Ms Buck. I congratulate my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) on securing this debate—his second in two days—on a very important subject. I also thank him and his fellow Committee members, past and present, for their important report of March last year.

As a former barrister, I fully understand the importance of obtaining the right deal for the justice system as we leave the EU. My hon. Friend the Member for Cheltenham (Alex Chalk) made a powerful speech about the many reasons why our justice system is important, and I agree with him. The Government recognise the importance of the legal sector. I know that because the Prime Minister highlighted it earlier this month in her Mansion House speech. She not only referred specifically to the importance of civil judicial enforcement and the mutual recognition of qualifications, but identified a few areas where the UK and EU economies were linked, one of which was law.

Before I deal with the issues Members raised, let me show how the Government have listened to the important points made by the Justice Committee and others. In its report, the Committee stated that we need certainty during any implementation period and that we must recognise the importance of criminal justice, and of mutual recognition and enforcement. It also highlighted the role of legal services. All those points have been and continue to be listened to. On implementation, the Committee stated that it was concerned that we would move to an inferior type of arrangement for a transitional period, and that it wanted to remove the risk of uncertainty. I hope the Committee is pleased that, in the implementation period, we will ensure that we have the same common rules so that our laws remain in place. There will be no inferior relationship in that period.

The Committee stated that we should prioritise EU-UK co-operation on criminal justice and that that serious matter should be negotiated separately. My hon. Friend the Member for Bromley and Chislehurst rightly identified that the Prime Minister has recognised the importance of this area, as she did when she was Home Secretary. She said in her Munich speech that we are “unconditionally committed to maintaining” Europe’s security now and after our withdrawal from the EU because “our first duty” as a nation is “to protect our citizens”.

On commercial law, the Committee outlined that the Rome I and Rome II regulations on applicable law rules do not require reciprocity and could be incorporated into domestic law. That is precisely what the Government are doing under the repeal Bill. The Committee asked us to ensure that maintaining the UK as a first-class commercial law centre is a top priority. It asked us to protect choice of law, and mutual recognition and enforcement. It stated that we should replicate the recast Brussels regulation and remain a party to the Lugano convention and The Hague convention. The Committee knows those are our ambitions, which we highlighted in our future partnership paper, along with the close relationship we want. We very much hope that we will ensure mutual recognition and enforcement in our separation agreement for cases started before Brexit.

Members will have noted in the Prime Minister’s recent Mansion House speech her desire to reach agreement on civil judicial co-operation. She referenced Lugano, company law and intellectual property law, and stressed the need for legal certainty and coherence. We seek to continue our participation in The Hague convention and the Lugano convention.

[Robert Neill]

I welcome the Minister’s assurance that that is the Government’s intention. I think everyone regards that as essential. On the urgency of getting agreement and specificity, is she aware of the recent survey by the international law firm Simmons and Simmons of its clients in Germany, France, Italy, Spain and the Netherlands about the approach that will be taken to important English jurisdiction clauses in commercial contracts post Brexit? So much litigation takes place in the UK because contracts have clauses specifying English jurisdiction. Some 50% of those clients will move away from English law unless there is certainty soon. Good intentions are not enough. We need answers very soon.

[Lucy Frazer]

I very much understand the need for certainty and the importance of those clauses in contracts. There should be a level of legal certainty, because those contracts will be respected in the implementation period. Furthermore, as was stated—I cannot remember by whom—we can sign up to The Hague convention unilaterally. As my hon. Friend the Member for Cheltenham said in yesterday’s debate, that convention is not the gold standard, because certain types of jurisdiction clauses are not included. However, many are, and it should give business a level of certainty.

The Committee also referred to legal services. It is important that we recognise the value of that sector to jobs and our economy, and the fact that it underpins our financial services sector. The hon. Member for Enfield, Southgate (Bambos Charalambous) identified many important points about the mutual recognition of qualifications. The Prime Minister has recognised that, too. She said

“it would make sense to continue to recognise each other’s qualifications in the future.”

That has been specifically recognised in relation to our agreement on citizens’ rights. Those citizens who remain have every right to continue to practise as they do at the moment.

My hon. Friend the Member for Bromley and Chislehurst rightly identified that the European Parliament might say that what we are putting forward is unachievable. In any negotiation, I would not expect the other party and those who will be confirming the agreement to lie down and say they accept everything the UK puts forward. We must remember that it is a negotiation.

My hon. Friend mentioned competition from other jurisdictions and the Paris court. That is an important point, but we must remember that the UK is expanding its judicial offering. We have interests in Europe and in Britain as part of the EU, but recently we have also seen judicial co-operation and members of the Bar helping to establish courts in Dubai, Qatar and Kazakhstan. We can continue to thrive in those centres outside the EU.

My hon. Friend made an important point about feeding into DExEU. He can be assured that our negotiators at the Ministry of Justice are party to the teams, negotiating alongside DExEU in matters that affect justice. He should also be assured that we are discussing these important issues at ministerial level—I have had discussions with my counterpart in DExEU.

In relation to clause 6 of the European Union (Withdrawal) Bill, Lord Keen, who took the debate in the House of Lords, said clearly that the Government have heard the views expressed by Members of the House of Lords, and that we will return to that point.

The right hon. Member for Delyn (David Hanson), the hon. Member for Bolton South East (Yasmin Qureshi) and my hon. Friend the Member for Cheltenham made important points on cross-border security, including that, as a matter of principle, crime does not respect borders, and that many measures, including the European arrest warrant, are critical to our security. I was asked for a timetable. First, we were agreeing separation—budget and citizens’ rights—and have done so. Secondly, we were to agree an implementation period, and we have done that. We are now turning to the matters of the future partnership deal and security.

We want an ambitious deal. There are many examples of international agreements between Europol and other third countries, such as the US, but like both the right hon. Member for Delyn and my hon. Friend the Member for Cheltenham, I believe these matters will be solved because it is in the interests not just of us and our citizens but of other citizens.

--- Later in debate ---

[Robert Neill]

I am grateful to all Members who participated in the debate. These are important issues, which I hope we have been able to raise and stress their urgency to Government. I am grateful to the Minister for her response, which was as comprehensive and elegantly put as ever. I appreciate that she is well seized of these issues. It is important that we continue to have such debates to keep them to the fore.

[Sir Graham Brady in the Chair]

I am sure we all want the Prime Minister to succeed in her objectives, and for my hon. and learned Friend the Minister and her colleagues to be able to assist the Prime Minister in achieving them. That will happen only if we continually make the case. As my hon. Friend the Member for Cheltenham (Alex Chalk) rightly said, it may sometimes be seen as a niche topic, but it is fundamental. Without legal certainty, no international commercial arrangements can work. Without legal certainty, no form of justice or security co-operation can ultimately be underpinned. It is not a peripheral matter, which is why a separate track has been suggested to give it the prominence it needs.

I appreciate the point made about the same-state transition secured by the Prime Minister. That period is important. I accept that that gives certainty, but it takes us only up to the end of 2020 and, to give just one example, large-scale commercial litigation often takes more than two years, as the Minister will well know. It is therefore not a long period in those terms. We must bear that in mind—that is why it is so urgent.

I am delighted to see you in the Chair for the end of the debate, Sir Graham. I am sorry that you missed the advocacy fest that went before. I am grateful to all Members for their participation and I am sure we will seek to return to this matter.

[Sir Graham Brady (in the Chair)]

I will look forward to reading the proceedings in Hansard.

Question put and agreed to.

Resolved,

That this House has considered the Ninth Report of the Justice Committee, Session 2016-17, Implications of Brexit for the justice system, HC 750, and the Government response, HC 651.

Worboys Case and the Parole Board

Robert Neill Excerpts

Wednesday 28th March 2018 Commons Chamber

[Mr Gauke]

The challenge in this—having seen in this case the decision notice by the Parole Board—is that there might be, for example, information provided by the prisoner to a psychologist, as part of the risk assessment, that is deeply personal. In order to have openness between, say, a prisoner and a psychologist, it must be possible for some of that information to remain confidential, so we cannot put everything out there. Indeed, there may be information relevant to victims that they would not want to be put into the public domain. As I say, a summary of the conclusions that the Parole Board has reached should be made available. The points made by Members on both sides of the House in saying that greater transparency is needed are absolutely right.

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

I thank the Secretary of State for his very detailed and considered response to what is itself a very detailed and considered judgment by the President of the Queen’s Bench Division. It is perhaps worth observing that it is quite clear from paragraph 130 that the ground on which the Secretary of State was urged to enter the judicial review would not have succeeded.

The Justice Committee wrote to the Secretary of State yesterday raising some of the issues that he has now pre-emptively dealt with in his statement. As well as reform of rule 25 and a proper review or repeal process so that judicial review is no longer necessary in future, will he consider the observations given to us in evidence, and by the Court as well, about the importance of having forensically skilled legal representation for the Secretary of State at hearings in serious cases to test the evidence, and about the desirability of having a serving or retired judge to chair the panel in serious cases?

Leaving the EU: Legal Services

Robert Neill Excerpts

Wednesday 28th March 2018 Westminster Hall

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

I beg to move,

That this House has considered promotion of legal services after the UK leaves the EU.

It is a pleasure to serve under your chairmanship, Mr Davies. I am grateful for the opportunity to raise the important issue of the future of UK legal services and how they are promoted after we leave the European Union.

The best way to set out the significance of this matter is to recite some facts about the legal service sector’s contribution to the UK economy and beyond. In 2016, legal activities added £24.4 billion to the UK’s national accounts. That is around 1.4% of the UK’s total gross value added. The UK legal services sector employs about 344,000 people. Most of those jobs are outside London, but of course the City of London has a huge hub of specialist lawyers who support the financial services sector. English law is the most widely used in the world, covering some 27% of the world’s 320 legal jurisdictions. More than 200 foreign law firms from more than 40 jurisdictions—all the EU jurisdictions but also, obviously, some beyond the EU—have offices in the UK. In 2016, the UK legal services sector generated £31.5 billion in revenue, £4.9 billion in total exports and net trade of £4 billion. It is forecast to produce turnover of £30.82 billion and net exports of £4.25 billion by 2020.

I say all those things as a lawyer—I refer Members to my entry in the Register of Members’ Financial Interests—but this matter goes well beyond the law and is inextricably linked to the United Kingdom’s financial and professional services sectors. Our economy is of course overwhelmingly service-based.

[John Howell (Henley) (Con)]

My hon. Friend described the contribution of legal services as a whole, but commercial law contributes a large amount to that annual income. I wonder whether he is happy with the arrangements for mutual recognition and enforcement of judgments after we leave the EU.

[Robert Neill]

My hon. Friend makes a very important point. At the moment, the UK is the jurisdiction of choice for the majority of commercial law contracts, litigation that follows from them, and commercial law arbitration, but we cannot take that for granted. A number of English language commercial courts that apply UK law have already been established elsewhere in the world. As I understand it, another is proposed in Amsterdam, which would clearly have an impact once we leave the EU. Mutual recognition of judgments is one of the UK legal sector’s key asks, and he anticipated with great timeliness that I was about to move on to what the Law Society, the Bar Council, the City of London Corporation, TheCityUK and others in the sector are looking for from the Government to maintain the position of UK legal services once we leave the EU.

The legal services sector’s key priorities are as follows. First, EU27 legal providers should be permitted to provide services in the UK, and vice versa—UK legal providers should be able to provide services in the EU27—on the basis of mutual recognition of regulatory regimes. That would enable European lawyers based in London firms and UK lawyers based in the EU27 to continue to advise and represent their clients.

Secondly, the UK and the EU27 should continue automatic mutual recognition of legal qualifications gained before and during—and after, I submit—the UK’s exit from the EU. That ought to be part of the agreement we seek. Otherwise, we would be in the perverse position that an English lawyer who, like me, is also qualified in the Republic of Ireland—I am a member of the Irish Bar—was able to continue to practise in the EU27 using their Irish qualification but not their English qualification. That is why there has been a considerable increase in the number of English solicitors being admitted to the Law Society of Ireland and English barristers seeking to be called to the Irish Bar. It would be much more sensible to retain those people in the UK as part of a mutual deal with our EU partners.

Thirdly, as my hon. Friend said, it is critical that UK court judgments can continue to be enforced in the courts of the EU27. That obviously applies to commercial law, but it also impacts maintenance payments, for example. Let us say that the partner from whom a UK national is having difficulty getting support for their child is an EU national who is living back in the EU27. Maintenance payments, like a judgment in the largest commercial litigation, can currently be enforced in any EU27 court and implemented by the authorities of any EU27 member state by virtue of our membership of the EU. One regulation covers the whole lot. It is important that we seek to preserve that arrangement. It would be extremely complicated if we had to enter into arrangements with individual EU member states, so we must try to do it en bloc.

It is also to the benefit of the EU27 to have the judgments of their courts recognised and enforced in the UK. There would be mutual advantage to preserving that arrangement, and it is most important that that is done without any break in continuity. Contracts of all manners are being entered into that, in all likelihood, will run beyond the date on which we leave the European Union. It is essential that people can enter into such contracts with sufficient certainty that they will be enforceable throughout the transition period and in the end state after we leave.

It is suggested that, as well as seeking the broadest possible deal with the European Union on that, the UK should consider re-signing The Hague convention as an independent party. I suggest that the two are complementary—it is not either/or. We are currently a party to that convention by virtue of our membership of the EU, but that will no longer be the case once we leave. I ask the Minister to take on board the concern that, in the negotiations, we should seek a waiver from the EU to allow us to re-sign as an independent party prior to Brexit so that there is no delay in ratification.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making a powerful case, and I entirely agree with him about The Hague convention, but does he agree that the great prize would be replicating the provisions of the recast Brussels I regulation, which derives from EU regulation 1215/2012? That is the gold standard. It is the best option, and The Hague convention is very much a fall-back provision.

--- Later in debate ---

[Robert Neill]

My hon. Friend is absolutely right—he and my hon. Friend the Member for Henley (John Howell) will be aware of the work that the Select Committee on Justice has done in this respect—which is why the first option should be to get a deal for continued mutual recognition. The Hague convention is, in a sense, a fall-back. It is not either/or—we could do the two in parallel, in the same way that we are seeking a generous agreement in relation to Euratom but also looking at the fall-back position of making our own regulatory arrangements if need be—but it would be much better if we maintained the existing mutual recognition. The Select Committee stressed that clearly in the report we published towards the end of the last Parliament on the impact of Brexit for the justice system, including legal services.

There are other key matters to stress, including the need for a system that deals with the ability of the UK to attract talent, which applies to the legal services sector. It applies to all the professions, but in the service economy our great strength is the quality of the personnel we are able to attract to the UK. Any immigration regime should therefore be so organised as to make it possible for firms easily to move staff between offices in the EU27 and the UK, and vice versa. It is also important that, as I have indicated, as well as recognition of qualifications, all existing UK lawyers practising EU law in the European Union should be able to continue to do so, and vice versa. Those are essential matters.

It is also important that we avoid any barriers and friction, to use a popular phrase, that might arise by virtue of any regulatory difficulties. Depending on our arrangements, if we do not have a comprehensive agreement and a proper partnership with mutual recognition and access, UK law firms could face restrictive regulations, preventing them from providing services and involving about 30 different regimes. We can see the complexity for firms if we do not get that solution. That is why it is important that the Government make it clear to the legal services sector that it is a priority in the negotiations.

When we talk about services, we sometimes understandably pay a lot of attention to the financial services sector, which is the biggest and most valuable part of our service economy, but the legal services sector is the critical underpinner of that sector. People come to the UK because our banks are sound and dependable, our regulatory system is perceived internationally as sound and dependable, and our legal system is seen as being second-to-none sound and dependable. It is a place where people want to litigate, and want to have their contracts written in English law. We cannot take any of that for granted.

None of that precludes us from using the opportunities that come as we leave the EU to seek to expand British legal services elsewhere in the world. It is important that the Government build on the “GREAT” campaign, with which the Ministry of Justice was associated last year. I hope it will be made clear that legal services, as a key British specialism and area of British excellence, will be a central part of the drive we make going forward. That is not always easy. In fact, even in common law jurisdictions adopting broadly similar laws to ours, including many Commonwealth countries, considerable restrictive practices get in the way of British law firms and lawyers operating. For example, the British Bar and the Law Society have been fighting extremely hard to get access to the legal markets in India.

India is talked of as one of the great potential commercial prizes for a free trade agreement post-Brexit, but it is by no means easy. India currently has protective regulatory structures. Progress is being made in parts of the financial services sector, but India has been reluctant to open up its legal services. When we negotiate trade deals, we should not be thinking purely in terms of manufactures or financial services—it is most desirable that legal services can be sold as part of a package that goes with the other services, and sometimes with manufactures. For example, many people will have bought a car with an attached insurance policy. When something is exported, it may have an insurance policy attached. It makes sense if lawyers who specialise in that field can advise their clients in those new markets.

There are opportunities, but a joined-up approach is required, particularly between the Ministry and the Department for Exiting the European Union. I am delighted to see my hon. and learned Friend the Minister in her place, who I know understands this well, having had distinguished practice at the Bar in the UK, but there is sometimes concern that other Departments are not as well sighted on the needs of the legal services sector, which sometimes perceives that it takes a fight to get itself heard in the broader Brexit negotiations discussion.

I hope the Minister will reassure us and take from the debate the message that there needs to be a specific taskforce for dealing with legal services. Many people in British law firms are ready and willing to supplement the Government’s in-house lawyers on policy advice. Established organisations such as the Financial Markets Law Committee, chaired by the noble Lord Thomas of Cwmgiedd, have made a number of suggestions to the Government on technical but important regulatory changes that will be necessary to protect the position of financial law.

There is expertise, but I have a suspicion that it is not always obvious to look outside the traditional civil service ranks for advice—perhaps it is sometimes the nature of Government—I remember this from when I was a Minister. I hope the Government do that right across the piece on Brexit, because we have great expertise. The Bar European Group has equal levels of great expertise.

I hope that, in this short debate, I have flagged up some of the key needs of British legal services, their legal service providers and their clients—not just commercial clients but the little people who benefit from access to European markets. I know that the Minister is engaged and will respond positively, but the more specific detail she can give on how the Government will address those specific items, the better that will reassure the sector and its clients.

--- Later in debate ---

[Lucy Frazer]

I am grateful to my hon. Friend, and it is important to give certainty to the legal services sector, so that they can advise their clients accordingly. My point was about the withdrawal agreement and what will happen to cases that are already pending before the court. The second stage of our negotiation was about implementation, and we have given businesses legal certainty by ensuring that our current arrangements will continue to apply during the implementation period. We are starting to negotiate and come to an arrangement on what will happen in future after we leave the EU.

My hon. Friend the Member for Cheltenham was right when he mentioned the gold standard and the Brussels regulation, and my hon. Friend the Member for Henley was correct to identify the importance of the Hague convention. Both those things are important, and we hope to secure the Hague convention as a minimum. It is right to ensure that there will be no gap before we rejoin that convention, and we are pressing to secure that. Our ambition and aim is to negotiate as hard as possible and ensure arrangements and protections in future that are similar to those we currently have.

My hon. Friend the Member for Bromley and Chislehurst raised the important question of legal services, the right of citizens to practise here and abroad, and the mutual recognition of qualifications. Again, on separation, as part of the withdrawal agreement we have agreed that any lawyers within the scope of the citizens’ rights agreement who have become part of the host profession in the member state should remain recognised and able to practise. Last week we agreed the terms of the implementation period, in which we will have the same rules as now. Therefore, rules on market access will continue, including on the provision of services and establishments for lawyers. The Government are keen to ensure a good deal for the legal services sector in future.

[Robert Neill]

I am glad to hear the Minister say that, and I am sure she will recognise that for the legal services sector, a CETA-type deal simply is no good. For legal services, a CETA-type deal is no deal. When we seek an ambitious deal, we must go beyond that which has been posited by some as a solution, because CETA would be just as bad as the cliff edge, which I think the Minister and I, and the Government, do not wish for under any circumstances.

[Lucy Frazer]

My hon. Friend makes an important point, but we can see how the Prime Minister is approaching this. In her Mansion House speech she specifically said that it makes sense for us to continue to recognise qualifications in future, and she identified the importance of civil and judicial co-operation. She specifically identified a few areas where the UK and EU economies are linked, and one of those was law.

As my hon. Friend rightly identified, our opportunity to expand our legal services extends not just to the EU, and we also have the opportunity to develop free trade agreements with third countries, which may cover legal services. He was right, however, to say that protectionism already exists in other countries, and although few FTAs currently cover legal services, we hope and are ambitious to change that in the future.

It is not only in the Brexit discussions that we continue to support our legal profession, and considering LawTech, technology, and innovation in legal services is key to ensuring that the United Kingdom retains its world-leading status. That is why the Government, building on success in the FinTech sector, are ensuring that new and innovative legal technologies are embraced and supported. We are fully supportive of LawTech innovation, which is now gathering pace. The number of LawTech start-ups in the UK is increasing each year, from three in 2010, to more than 60 in 2016. We are committed to ensuring that the UK becomes a world leader in smart contracts, and we are keen to bring together work that is being done to make those contracts a reality.

We are doing other significant work beyond the UK to support and promote legal services abroad. We are joining up with the judiciary and legal services sector, helping it to gain footholds in new markets, and proactively spreading the message about why English law, and the legal offering in the UK, is so strong. My hon. Friend rightly referred to the GREAT campaign, and the “Legal Services are GREAT” campaign was launched by Lord Keen in Singapore last year. The campaign targets stronger links with emerging and established markets across the world, and it aims to cement the UK’s reputation as the world’s pre-eminent legal centre. It is showcasing the very best of what the UK’s legal services sector has to offer, bringing business to the UK and our legal firms, chambers and courts.

We are also working with partners to target the countries that matter to the UK. In April we will deliver an English law summit in Kazakhstan, alongside the Law Society and the Bar Council in England and Wales. In May, our campaign will feature in the UK pavilion of the Silk Road Expo in Xi’an, China. We are working bilaterally with our key allies on areas of mutual interest. Legal services feature prominently in the regular programme of bilateral ministerial meetings that we organise, including last year with Ministers from Singapore, India, Australia and China.

My hon. Friend made a number of important points, and we must recognise the importance of talent, and the mutual recognition of qualifications and judgments. He rightly said that there is a wealth of knowledge in the legal services sector, and the Department is using that. I greatly welcome the expertise that that sector brings to ensuring not just a good justice system, but the right deal on Brexit in the future. My hon. Friend also mentioned intergovernmental Department contributions, and the importance of other Departments appreciating the significance of the legal sector. I assure him that I am already talking to my counterparts in the Department for Exiting the European Union and the Treasury to identify the importance of the legal services sector. Yesterday I gave evidence with a legally qualified Minister, the Under-Secretary of State for Exiting the European Union (Suella Fernandes), and having heard her give that evidence, I am confident that she is very much aware of the importance of our legal sector.

In conclusion, our overall message is simple: the UK is, and will continue to be, one of the pre-eminent legal centres in the world. We will continue to be a leading player, and I am determined to ensure that English law remains the law of choice, and that the UK continues to be the jurisdiction of choice.

[Robert Neill]

I welcome the Minister’s positive remarks. On work within Government, can she assure us that maximum effort will be made to join up the work of the legal services working group, which exists within the Ministry of Justice, and the Brexit Law Committee, which reports to the Department for Business, Energy and Industrial Strategy? The profession is concerned that there should be no disjuncture between the two. It sounds as if the Minister and the Under-Secretary of State for Exiting the European Union have been talking, but it is important that that happens consistently at official and professional level.

[Lucy Frazer]

That is a good point that I am happy to take forward. It has been helpful for me to air these points today, and once again I congratulate my hon. Friend on securing this important debate, and indeed all hon. Members on their contributions today.

Question put and agreed to.

Victims of Crime: Rights

Robert Neill Excerpts

Tuesday 13th March 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mrs Main. I will do my best to be naturally short. [Laughter.] I congratulate the hon. Member for Leeds North West (Alex Sobel) on securing this debate on an important subject.

I will start where the hon. Member for Kingston upon Hull West and Hessle (Emma Hardy) began, which is how victims are treated once a crime has been committed. Constituents in Chislehurst have suffered a spate of residential burglaries. The burglaries are professional, planned and committed with an extraordinary degree of chutzpah. In some cases, the burglars have returned to the same road on more than one occasion within a couple of weeks. The burglaries are of a serious kind: occupants of houses have been threatened—in some cases, they have been young children, and in others, they have been elderly people. The police have many pressures and it is not always possible to find much evidence at the scene. In the case of those professional burglaries, the people have escaped, but there are forensics to be done.

It is important that all police forces recognise that dealing with the victims of crime and investigating crime are not purely transactional processes. A proper duty of care for victims is important. A domestic burglary is peculiarly intrusive and a violation of people’s homes and lives. The hon. Lady fairly made a point about proper points of contact and proper updates and information, which are critical. It is important that a degree of urgency is applied to offences of this kind, even in a large police force such as the Met. There is resource within the budget. I know there are pressures, but priority should be given to dealing with those sorts of issues and keeping people informed.

I want to talk about the operation of the criminal justice system as it impacts victims. The Justice Select Committee, which I have the honour to chair, has looked at that in a number of areas. I start with the point that was made by the hon. Member for Leeds North West about delays in the court process, which are a problem. My hon. Friend the Member for Banbury (Victoria Prentis), who is a fellow member of the Select Committee, referred to that in the context of disclosure problems causing delays and adjournments, which puts great stress on victims who have come to court or readied themselves to give evidence. It is important that we work—I know the Government recognise this—with the judiciary at all levels, from the professional judiciary to the magistracy, and with the Crown Prosecution Service, because many delays arise from failure to meet the proper protocols on disclosure by prosecutors. We need to ensure that we take a whole-system approach so that such delays are reduced to a minimum.

The experience of victims giving evidence needs to be made as palatable as possible. Any witness has to expect to be properly cross-examined, and any defendant has the right to have the case against them tested, but there are parameters in which that must be done decently and without undue pressure. The Government have recognised that in the cross-examination of victims of domestic abuse. It is important that we build upon the work already done on the pre-recorded cross-examination of witnesses and the use of video links. We must ensure that the video links work, which sadly is not always the case in every court. We therefore have to ensure that the court estate and technology are up to speed. That is an important thing we need to do now.

I am glad to see the Minister in his place. I know he is very engaged with these matters, and I recently wrote to him about the position of training and mentoring for registered intermediaries. Court intermediaries provide communication support for vulnerable witnesses—many of them are victims, but there may be other vulnerable witnesses, too. There appears to have been a significant reduction in the period of training they undergo. Can the Minister offer some explanation, either now or subsequently, as to why that has happened? I accept there are pressures, but can he give us an assurance that he will ensure that the level of service provided to vulnerable people assisting in the court process to try to deliver justice is not diminished? I am sure he will be aware that the Victims’ Commissioner’s research indicates poor overall management in the governance of intermediaries and a lack of funding. They perform an important role, and I hope the issue can be taken much more seriously.

I will briefly move on to restorative justice and the victims’ law, which was referred to by the hon. Member for Leeds North West. One of the proposals that the Select Committee made was that any victims’ law should include a right not just to information about restorative justice, as is the case at the moment, but a right of access to it. Provision is extremely patchy across the country. Some police and crime commissioners—I am delighted to see the hon. Member for Rochdale (Tony Lloyd) in his place; he did a great deal as the police and crime commissioner for Greater Manchester—engage in that, but others do not. It is important that the Government perhaps do more to enforce a proper minimum standard. There is always scope for local variation to meet local needs, but a basic standard must be adhered to in all cases. If we are going to have a right, it is important that we have a means of enforcing it and some remedy if it is not actually delivered. That was reported on at some length in our Committee’s report of September 2016, which was debated in Westminster Hall in January 2017. The Government indicated that they were taking steps; we welcomed those, and urge them to do more, as more needs to be done. I hope that the Minister can confirm that work is continuing on this matter, and that the Government remain committed to a victims’ law. Can he give us some sense of when we are likely to see more proposals on that?

Finally, it is important and topical for us to consider the role of victims when Parole Board decisions are made. I will not say anything about any particular case that is sub judice, but we must examine this issue. The point about communication is hugely important. My hon. Friend the Member for Torbay (Kevin Foster) talked about restorative justice in that context. We have to have a whole-system approach. It is not just about when the person is sentenced and dealt with.

[Victoria Prentis]

Does my hon. Friend agree that we should look at both statutory victims and the wider collection of victims in that context?

[Robert Neill]

That is absolutely right. That is a most important matter. The chair of the Parole Board himself, Professor Nick Hardwick, to whom I pay tribute for his openness with us, recognises that the current rules are not as he would wish them to be. They sometimes make it hard for the Parole Board to be as transparent as it would like to be, for the benefit of either the victim or the general public. On the face of it, that is a difficult distinction to justify in some cases, so I hope that in due course the Government will look at that. It indicates to me a need for a much more holistic approach to how we look at victims throughout both the investigatory process and the criminal justice process.

I commend the hon. Member for Leeds North West for securing the debate, and look forward to the Minister’s response.

--- Later in debate ---

[Tony Lloyd]

I will not take long, in that case. The comments of my hon. Friend the Member for Kingston upon Hull West and Hessle (Emma Hardy) are really important. Antisocial behaviour matters. Actually, it kills in the worst situations, and even if we are not talking about those extremes it certainly makes people’s lives miserable. It destroys the quality of people’s lives and we must take that seriously. She is right. Obviously, this can be a political point, but the Government must take it on board that it has become much more difficult now for our police to investigate things that fall off the radar, which they simply ought not. It is an important issue to raise.

Like the hon. Members for Bromley and Chislehurst (Robert Neill) and for Torbay (Kevin Foster), I am a big supporter of restorative justice. I regret that I was not in the House in 2016 to speak on the Select Committee report, but I was aware of its conclusions. Restorative justice fundamentally delivers to victims the sense that their needs are being taken seriously. That is as important in prosecutions as when there is a decision not to take a case forward, which can sometimes be appropriate.

I think of the case of a woman who was a very strong advocate. Other hon. Members might have heard her speak. Her house was burgled and a new camera was taken. Sadly, her daughter was killed in a car crash weeks later and the last remaining photographs of her daughter were lost with the camera. She never saw the photographs but she was prepared to work with the perpetrator, who went to prison. That was important for at least giving her a sense of easement, although you can never reconcile yourself to the loss of a child. It also meant that that long-term burglar effectively ceased his former habit, so it worked in more than one way, but—there is always a “but”—training is absolutely important. We cannot see the process as something to be delivered on the streets, with no training. There must be supervision to ensure that standards are maintained. Importantly, there must be victim volition. The process cannot be forced on a victim, or denied to a victim who is not aware that they could demand it. I support the call for a statutory framework, and of course my hon. Friend the Member for Leeds North West argued for that.

[Robert Neill]

I am delighted that the hon. Gentleman is back in the House after a brief gap. I hope he will take part in further debates. Given what he has said, does he agree on the importance of the point made in the Justice Committee report, that restorative justice must always be victim-led—the victim’s choice at all times—and that there must be proper professional support right the way through? It is important that victims be given full information about what is available in their area, and that something genuinely meaningful should be in place—not simply a leaflet.

[Tony Lloyd]

Absolutely. The hon. Gentleman—let me say my hon. Friend for the sake of this debate—is right on both counts. The second point is fundamental in bringing about the first, because if victims do not have confidence in the process it withers. It is not just victims, in fact, because the community must have confidence, through the victims, that the decisions are not arbitrary, and will deliver something to victims and do something more generally to change behaviour. In the end, the process is about helping victims and changing perpetrators’ behaviour.

Perhaps I may now touch on the rather more aggressive side of what, sadly, happens to victims. Sometimes victims are treated horrendously within the processes. I know that the Minister is sympathetic to these points. Many years ago, I dealt with a grieving family whose son had been stabbed to death at a party. The charge was murder and the case took many months, as such cases do, to come to court. Eventually, on the day of the trial, the family were told that the murder charge could not be sustained, because the prosecuting barrister had said he could not deliver it on the available evidence. No other charge of manslaughter or lesser offences had been brought, and that meant that the two perpetrators went scot-free. The family were left devastated.

That was a long time ago and I would be happy if I could say that those were the bad old days and that things have moved on. However, they have not. Victims still sometimes find that the failure of the prosecution service to examine information in time, or the failure of the courts to process cases, means they face a long journey between becoming a victim and their case coming to court, only to find that when it gets to court they are left frustrated and dissatisfied.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 6th March 2018 Commons Chamber

[Mr Speaker]

The hon. Gentleman’s offer is an interesting one. It might also be thought by some to be a divisible proposition.

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

The Secretary of State’s speech this morning and his emphasis on more use of release on temporary licence is extremely welcome and constructive. Will he bear in mind, though, that the Through the Gate programme currently involves careers and employment advice being given only towards the very end of a prisoner’s sentence, whereas all the evidence suggests that that should happen much earlier?

[Mr Gauke]

I thank the Chair of the Justice Committee for his comments. I do want to look at whether we can expand release on temporary licence and provide these opportunities more widely. On his second point, I am keen to ensure that we provide as much support as possible and make it clear that there is a second chance for people who have gone to prison. If they abide by the rules and comply with the system, we want to give them the support to turn their lives around.

HMP Liverpool

Robert Neill Excerpts

Thursday 22nd February 2018 Commons Chamber

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

This report results from what was described by Her Majesty’s chief inspector of prisons as one of the worst inspection reports of a prison that he had ever seen. It was certainly the worst inspection report that our Committee had ever seen, and because of the gravity of the situation, we took the unique step of holding a specific evidence session on that individual inquiry. It highlighted conditions at Liverpool prison that the chief inspector described as “squalid”, a history of deterioration over a two-year period, and a history of management failure at local, national and regional level over time. It also highlighted a number of systemic problems that we believe need to be addressed by the Ministry of Justice and Her Majesty’s Prison and Probation Service, and the need for approaching afresh the way in which we deal with Her Majesty’s inspectorate of prisons itself.

I pay tribute to my Committee colleagues, a number of whom are present today, for their work on this report, and I also welcome the Minister to his place. I particularly appreciated that he came to give evidence to our inquiry so early on after being appointed to the post in which he now serves.

I will briefly give an outline of the report against that grave background. Liverpool prison was inspected in 2015, and it was failing then. It was re-inspected in 2017, and it had got worse. Some of the conditions—a man with mental health problems was in a cell that was not fit for habitation; there was a serious maintenance backlog, which had doubled from 1,000 to 2,000 over that period; and the prison’s markings against various tests had gone backwards—indicate that there was not only a gross failure of management locally and of regional and national oversight, but that the detailed recommendations of Her Majesty’s inspectorate that were made in 2015 had not properly been addressed. That is the first systemic matter that we deal with.

It is pretty clear that the national leadership was not alert to the situation on the ground. The head of the Prison Service, Mr Spurr, told us that he had been informed by the local management that some 60% of the recommendations in 2015 were on track to be met. That was wrong. In fact, only 25% or so were met, and 60% were not met. The leadership nationally was out of touch. What was the role of the deputy director of corrections, who is supposed to have oversight of 12 prisons in that region? Clearly, there was not just a failure of communication, but a breakdown in how the system operates there.

This is not unique. Her Majesty’s chief inspectorate indicated to us that it is a regular occurrence for its recommendations not to be acted on. The Minister rightly said to us that much greater use should be made of the inspectorate’s recommendations to drive changes in behaviour. He is right. We recommend therefore two specific matters to effect that.

First, at the moment, the Prison Service marks its own homework. That is not satisfactory and it can breed complacency. We therefore recommend that HM inspectorate of prisons be given additional resource so that it can follow up on the implementation of its recommendations and hold the prisons to account. This is not a large sum in the overall scheme of things; perhaps one inspection team would be sufficient to do that task and probably the overall saving would mean that that would be offset. Secondly, Ministers should take personal responsibility for seeing that inspections reports are acted on and should account to the House for that, perhaps through a letter to the Justice Committee. That is the first of our practical recommendations, which we believe would offer a way forward.

There is also the whole question of the oversight itself. Given that there were these failings, we believe that greater work should be done to ensure the transparency and accountability of the above-establishment teams in the Department. There was also a clear problem with the facilities management contract. Not only had the backlog got worse, but it is pretty clear that basic issues that should have been picked up in the contract were not. The fact that there were rat and cockroach infestations shows the level of the problem. We are not satisfied with the explanations we were given for the failures in that contract and we therefore believe that there is a need for greater transparency, so we recommend that major contracts—this is a national contract with Amey—should be subject to a public framework outlining the expectations, performance and penalties levied against a provider for failure. If there are penalties, there should be a system of naming and shaming, frankly. There should be a public notification of where failures occur and how much of a penalty is levied against the provider as a percentage of the contract. That is the whole point of outsourcing—to drive changes in behaviour—but we need transparency and openness to do that.

We also noted that part of the problem derives from persistent overcrowding. Liverpool prison was not understaffed—it was up to establishment—but it was nevertheless pressed for numbers. We therefore recommend that the Ministry and the Prison Service publish a plan to resolve the persistent overcrowding of the estate to take some of the pressure off governors. The new governor at Liverpool is clearly doing a very good job under difficult circumstances, but we need an overall plan to deal with overcrowding and that must aim to reduce the prison population and/or increase safe and decent capacity. We cannot have it both ways.

We were also concerned about the poor situation with healthcare that was discovered. We were glad to see commitments from the Prison Service and NHS England to publish a partnership agreement on how they are working together. However, the last partnership agreement expired in April 2017 and the new one will not be in place until 2018. The gap of a year is not satisfactory in that regard and we need steps to be taken to ensure that that does not happen again.

Finally, we need a commitment to ensuring that there is decent healthcare. It was explained to us that the overcrowding and the nature of the regime meant frequently that prisoners could not be brought from their cells to healthcare appointments. We need a much more joined-up approach to that.

Those are the principal recommendations of our report, which I commend to the House. At the end of the day, the decency of a society is judged by how it treats those who offend against it as much as by how it treats those who do well by it. Liverpool failed in that regard. We did not house prisoners in the decent conditions that common humanity and our international and domestic legal obligations order that we should. That failure cannot be allowed to happen again. Making greater use of the inspectorate and its tools and adopting our recommendations will, I hope, be a constructive way forward in assisting the Minister in what I entirely believe is his intention to get back to getting the basics right and improving the Prison Service. It is in that spirit that we put the report before the House and commend it to the Minister.

[Dan Carden (Liverpool, Walton) (Lab)]

I welcome the Committee’s report and thank the Chair for his quick decision to hold an evidence session specifically on HMP Liverpool following the publication of the original inspectorate report. I further welcome his commitment, as stated here, to hold the Government to account when prisons fail. We have lost another life inside the prison this week. Anthony Paine, 35, who suffered with mental health problems, was found in his cell and died in hospital on Monday.

The report does not mention in detail the failure to invest in infrastructure and renovate wings or the loss and replacement of experienced prison officers and, critically, resources. Having seen the prison with my own eyes, I have no doubt that these are basic but expensive requirements, but in a written answer to me the Minister says that there is no plan to publish the costs or programme of urgent works at HMP Liverpool. Does the hon. Member for Bromley and Chislehurst (Robert Neill) agree that it is vital that we have transparency across our prison network and the improvements that are necessary if we are to see real change?

[Robert Neill]

I am grateful to the hon. Gentleman. I know that he knows Liverpool Walton jail, as it is often called locally, very well. I entirely understand the point of his remarks and I hope that the Ministry will reflect on that. The whole thrust of our report is that we need to shine the light of transparency and publicity on these matters. We also, in a separate piece of work, have in hand an inquiry into the shape of the prison population by 2020. Part of that, again, is this need to deal with overcrowding. Our recommendation on persistent overcrowding is part of that. Getting the fabric right is necessary. Walton jail—Liverpool prison—is one of the old Victorian prisons and there is a real need for work to be done there. If we are publishing the public framework on facilities maintenance, I do not see why we should not be able to have similar publicity about the capital works that are required.

[The Minister of State, Ministry of Justice (Rory Stewart)]

This is an historic opportunity. I think that this is the first time in more than 200 years of our Prison Service that we have had an individual prison debated on the Floor of the House. I pay tribute to the Justice Committee for bringing the matter forward.

The situation in Liverpool prison was, as the Chairman of the Select Committee has pointed out, genuinely shocking. It is very disturbing and it is unbelievably important that Select Committees, inspectors and Members of Parliament hold us accountable for prisoners. These are closed communities. They are often hidden away from the public. In many areas, they can be forgotten, and without scrutiny standards can drop. They dropped very seriously in Liverpool prison.

The condition in the cells was unacceptable; how prisoners were treated was unacceptable, and the lack of purposeful activity was unacceptable. We are now addressing this hard and quickly, but there are still huge lessons to be learned through the system. I pay tribute to the new governor, Pia Sinha, who has come in, taken cells out of commission and made it clear that she has cleaned the prison and that her objective over the next six months is to get those cells into a smart, good condition. We now have the money in place to put in the new windows and she is focused on ensuring that the education and employment activity is good.

More generally, there are lessons right the way through the prison system. We need to get the basics right. There is no point talking about rehabilitation or dealing with reoffending unless we have clean, decent and safe spaces for all prisoners. We want our prisons to be smart and well-functioning. We are bringing in more than 2,000 more prison officers, and that will relieve some of the pressures on the prison estate, but these are new prison officers and will need training and support until they have the prisoncraft to deliver what we require. We also need to invest a lot more in training. Because prisons are unbelievably complex environments, the governor needs the support and training—this could mean months of training—to ensure that they are in a position to turn around the prison. That training should also apply to the uniformed staff. Finally, the role of the inspector and the Select Committee will be vital in improving performance.

[Robert Neill]

I am grateful to the Minister for that response. He is very much on the case in recognising that we must get basic things: cleanliness, decency, the maintenance of the establishment, and the ability to run a regime where people can get out to healthcare appointments and rehabilitative work. All that is critical. Unless we turn the existing problems around, we will face a real crisis in our prisons.

I look forward to working with the Minister on those matters. In particular, I hope that he will take up our recommendations on the inspectorate and the constructive role that it can play. I can honestly say that this is a case of a small investment being likely to pay off in the long term.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

As co-chair of the justice unions and family courts parliamentary group, I welcome the report, but it is amiss that the Justice Committee did not take evidence from unions representing frontline professionals. I understand from the Professional Trades Union for Prison, Correctional and Secure Psychiatric Workers that the maintenance contractor, Amey, refused to undertake pest control at HMP Liverpool, and the previous governor—who was also not called to give evidence—had to use his already hard-pressed budget. I wonder whether the Chair would agree that governors’ autonomy is convenient cover for the Government’s failure to be accountable for the dire condition of the prison estate.

[Robert Neill]

Let me say first that the Committee engaged with the POA on a number of occasions, and on an ongoing basis. Secondly, the issues relating to facilities maintenance were examined in some detail. We said in our report that we were not satisfied with the outcomes and intended to return to the issue. Thirdly, it was specifically not our role to examine the position of the previous governor in terms of the future. We heard evidence from the inspectorate about the position at that stage, and we heard evidence from the current governor about what is happening now, which is an improvement, but we did not think that going into further past history would be constructive. Our recommendations are for ways to try to ensure that this state of affairs does not occur again.

[John Howell (Henley) (Con)]

One of the most distressing aspects of the report relates to healthcare. My hon. Friend has already spoken briefly about that. Does he feel, as I do, that we can have no confidence in the partnership agreement? One thing that it will not do is get prisoners out of their cells to attend appointments.

[Robert Neill]

I am particularly grateful to my hon. Friend for his work in the Committee on this and many other reports. He is absolutely right. We are calling for the partnership agreement to be published, so that we can examine it, because we cannot be satisfied that it is yet fit for purpose. Previous partnership agreements have broken down, so we need to know how this will be different—in terms of both its structure and the way in which it will operate—to be reassured that there will be no repetition of what went wrong in the past.

[Tony Lloyd (Rochdale) (Lab)]

I congratulate the hon. Gentleman and the Committee on an excellent, timely and important report. However, while it does move us forward, if we are to change our prisons from being simply places of detention in various outrageous conditions to being places where rehabilitation is central—which is what they ought to be—we still have an awfully long journey to travel. Her Majesty’s inspectorate of prisons should be given the resources that it needs for re-inspection, but we also need to be able to establish whether we are delivering the quality of healthcare, education and all the other things that are necessary in prisons that will allow—mainly—our young men to come out and become acceptable citizens.

[Robert Neill]

I know how closely the hon. Gentleman followed this issue during his time as a police and crime commissioner and as the interim mayor in his part of the world. He is absolutely right. The report is a useful step forward, but I do not pretend it can be more than that. It has to be part of a systemic change, and I hope that it will help to drive that, but we must think about the systems and about a long-term strategy that relates to the real purpose of our prisons.

[Mr Philip Hollobone (Kettering) (Con)]

I commend my hon. Friend for his statement and his Committee for its report.

When the Care Quality Commission investigates local hospitals and makes recommendations, it returns to those hospitals at a later date to see whether they have been implemented. I do not understand why the same system cannot be introduced for Her Majesty’s inspectorate of prisons.

Is it not extremely alarming that the information given by Liverpool prison to the head of the Prison Service was so inaccurate? Given the speed with which the Committee’s report was produced, will my hon. Friend encourage the Minister to be equally quick in responding to its findings?

--- Later in debate ---

[Robert Neill]

The quick answers are yes, yes, yes and yes. My hon. Friend is right on those points, and I am sure that the Minister will respond quickly. It would be bizarre if recommendations from the Care Quality Commission or Ofsted were ignored in the wholesale way in which those of Her Majesty’s inspectorate of prisons have been ignored in the past, and that absolutely needs to change.

[Ms Marie Rimmer (St Helens South and Whiston) (Lab)]

I pay tribute to the Chair of the Justice Committee, which I have recently rejoined. I also pay tribute to the Minister for the quick actions that he has reported. However, we must not forget why we find ourselves in this situation.

I am pleased about the announcement—made some time ago—of the recruitment of an extra 2,500 prison officers, but we must bear in mind that we lost 7,000, so there is still a gap of 4,500. The prison population figures are falling now, but they did go up. The nature of the inmates changed somewhat. The health needs of those imprisoned for historical sexual abuse, for instance, were obviously different from those of the other, existing prisoners, but the budget was not increased to deal with such differences. There has been a drain on resources. At the same time as the loss of the 7,000 prison officers, the drug Spice appeared, and became big business. There were fewer resources with which to manage the inmates, and morale went down with the loss of those prison officers. When recruitment did begin, a baggage handler could be paid more than one of the new recruits. It is important that when we do recruit—and we are recruiting now—those people are trained properly, not for a week but for months. Resources are what is needed. Of course money is important, but there is also the issue of how that money is used. As far as I can see, there has been absolutely no contract management. When I initiated a debate on mental health in prisons, I noted that there appeared to be no communication between the prisons and the health service. Contracts were awarded and money was given, but there was no monitoring of those contracts.

As the Justice Committee said, and as its Chair has said today, this is about systems and about getting them right. However, it is also about resources. It is about recruiting the right people, training and valuing them.

[Robert Neill]

I welcome the hon. Lady—in fact, I will call her my hon. Friend, because that is what she is—back to the Committee. I am very glad that she is with us once more.

It is true that we must look at all the issues. There is no single silver bullet. We need a comprehensive plan, and I urge the Government to work on that. I take the Minister’s assurances at face value, because I believe that he does have a desire to achieve what is needed. I look forward to working with him, on behalf of the Committee, to ensure that that happens. Staffing, resources, training, morale, the fabric of the establishment, facilities management and proper contract management are all part of the mix that we need to address.

Joint Enterprise

Robert Neill Excerpts

Thursday 25th January 2018 Commons Chamber

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

I join every other Member in welcoming you back to the Chair, Mr Deputy Speaker.

I congratulate the hon. Member for Manchester Central (Lucy Powell), my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) and the right hon. Member for Tottenham (Mr Lammy) on securing this debate. I wish to speak for several reasons. First, as Chair of the Justice Committee, I think it is important that we keep this matter under review. The Committee has given some consideration to this matter in the past, and no doubt we will again.

Secondly, throughout my adult life, I have been a practising barrister. I concern myself very much with the justice system because it is something of which I am part and in which I believe. A belief in that system was one reason why I came to this House. It is massively important that it does what it is supposed to do—that it does justice and that we get it right. Where we fail to get it right, we should not be afraid to say so.

Thirdly, I have a constituent—I think their partner is in the Public Gallery today—who is serving a life sentence, with, I think, a 23-year tariff, as a result of the application of the joint enterprise principle to a case of murder. He made no bones about the fact that he had been party to an offence of dishonesty, but was convicted of murder, by the application of the joint enterprise principle, as a result of the act of violence perpetrated by another individual. Therefore, that case comes exactly into those with which we are concerned.

For all those reasons, this is a very important debate. I am sorry that there are comparatively few people in the Chamber today. One thing that has struck me since I have been here is how, by comparison with the past, this House takes comparatively little interest in reform of our criminal justice law. Through the ’60s and ’70s, Members of this House—either through private Members’ Bills or the pressure that they put on Government to make changes to Government legislation—effected major changes for the better in many aspects of our criminal law: reforms of the law in relation to homicide and the abolition of the death penalty; and changes to the law in relation to the criminalisation of abortion and homosexuality. A vast number of other really important matters of criminal justice reform emanated from debate in this House. Sadly, too often, that gets squeezed out in the current climate. Perhaps we should debate it rather more.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

I am reluctant to intervene on such a good speech, but the hon. Gentleman knows of my interest as co-chair of the all-parliamentary group on miscarriages of justice. Does he not think that the Criminal Cases Review Commission is lacking in that it does not intervene enough, or early enough or persistently enough in these cases?

[Robert Neill]

There are a number of areas where changes are needed. I have great respect for the work of the Criminal Cases Review Commission, but I am conscious that it is under pressure both in terms of resource and of its terms of reference. It would not be unreasonable to look at that. Miscarriages of justice do occur. I know that full well because I vividly remember prosecuting one once—not in a murder case, but in a rape case. At the time, the evidence and the legal test appeared compelling, but, thanks to the work of the Criminal Cases Review Commission, evidence came to light, and I had no hesitation in not seeking to resist the appeal when it came to the Court of Appeal a second time. Its work, therefore, is really important. It is also important that it has the means to carry out its vital job, as its role is a significant one. However, there are other gaps that we must look at as well.

Everybody accepts now that there was a serious departure from good reasoning in the case of Chan Wing-Siu in Privy Council back in 1985. When one reads the case, the odd thing is that the judgment, which was described as “taking a wrong turn” in the Supreme Court, was, actually, almost not based on the principal facts or arguments that had brought the appeal to start with. The noble Lord, the member of the Privy Council, giving the judgment in that case rather went off on a tangent and developed what was then regarded as the concept of secondary parasitic accessory liability.

The matter could have been resolved perfectly well on the facts of its own case. It is set out very well in what is a very detailed judgment of a strongly constituted Supreme Court in the Jogee case. I certainly do not fault the judgment of the Supreme Court in Jogee at all. It is exceedingly well-reasoned, and it is significant that not only the then President of the Supreme Court, Lord Neuberger, but the current President, the then deputy president, Baroness Hale, were there. The then Lord Chief Justice, Lord Thomas of Cwmgiedd, took the unusual step of sitting in the Supreme Court because of his experience in criminal justice matters. Intellectually, the Supreme Court in Jogee got the answer right and said that the approach, which had encompassed so many people into secondary liability in homicide offences, was wrong. However, some practical errors remain in its application.

[Mr Mitchell]

I am most grateful to my hon. Friend for giving way. He is a lawyer, so can he explain to me, as a layman, why, following this extremely well-written judgment on Jogee, which I have also read, the criminal justice system did not react with enormous alarm and immediately set in train reviewing the very large number of cases affected by that judgment?

[Robert Neill]

That brings me to my next point. There is a concern that, in practice, the filter effect that has been put to the bringing of appeals out of time and the way that it has been interpreted in cases such as Anwar and others has been particularly restrictive. That is the difficulty. It is very clear that the Court of Appeal in the Anwar case and subsequent cases has taken a very narrow interpretation of the substantial injustice point. That does not necessarily have to be the case on the basis of Jogee, but it was always made very clear in the Supreme Court’s judgment that one should not assume that the Jogee case would mean that every conviction for murder on the basis of joint enterprise should be overturned, or that in many cases, even where convictions for murder were overturned, there would not also be a conviction for manslaughter, where appropriate, but the level of foresight and involvement was less. That is the important point that we have to consider.

None the less, it is really important that we get to a situation in which people are convicted, certainly, of offences where they have done wrong, but they should be convicted of and sentenced for offences that properly reflect the level of culpability of their behaviour. When we do not get that right, confidence in the system is understandably undermined. That is my concern, which is shared by the Members who have already spoken, about the difficulty of bringing cases out of time to the Court of Appeal. Clearly, it is something that needs to be looked at. If the rule of precedent makes it difficult for a court to do that, perhaps Parliament and Government should indeed consider it.

I just observe in passing that there is, in any event, the proviso to the Criminal Appeal Act 1968, which would mean that if, once the case has been heard, no material injustice occurred, the conviction can be upheld. At the moment, we have a double test: a test to bring the appeal out of time; and then the proviso. The difference is that, in the test to bring the appeal out of time, the onus is on the appellant to meet that test, whereas, under the Criminal Appeal Act, the test in relation to the proviso puts the onus on the prosecution. That is something that needs to be considered.

When the Justice Committee looked at this matter with some care in evidence sessions in the last Parliament, the view was that it had to be seen in the context of a very unsatisfactory state of the whole law of homicide. The distinction between murder and manslaughter remains extremely unclear in this country. Unfortunately, the Government have not so far taken up the opportunity of examining that. The logical route would be to ask the Law Commission to carry out such an examination.

In evidence to the Justice Committee in the last Parliament, Professor David Ormerod, a former chair of the Law Commission, a senior commissioner for criminal law and a distinguished academic Queen’s Counsel in criminal law matters, identified exactly that point. He said that a review of the law of homicide still represents the

“best solution”

that

“could encompass the decision in Jogee.”

It would enable us, thereafter, to encompass the consequences that stemmed from it. Referring to the Supreme Court’s decision, he said that

“they are constrained, as ever in the common law, by the facts of the case and the nature of the argument.”

That is our common law system. He went on:

“It was not possible for them to offer a comprehensive review of the whole of the law relating to secondary liability, which the Law Commission could do”.

One of my asks of the Government, as well as revisiting the test for bringing the appeals out of time, is to take up the Law Commission’s willingness to examine that area. There is vast expertise in the Law Commission, which is sometimes under-used. It can look at the matter dispassionately and set the difficulty that we have with secondary liability in these cases into the broader difficulties that we have with the law of manslaughter. We heard compelling evidence from criminal practitioners, representatives of the Criminal Bar Association, about the real difficulty and complexity of giving direction to juries in manslaughter cases.

Judges have given most careful directions, after discussions with counsel on both sides, but none the less they frequently find juries returning and sending a note seeking further clarification. The greater the lack of clarity, the greater the risk of injustice. I hope that issue can be resolved. I suggest to my hon. and learned Friend the Minister, whom I welcome to her post, that that would be a sensible and measured approach to find an intellectually sound way forward on this intractable issue.

The other matter that I would like the Minister to consider is the review of the Crown Prosecution Service guidelines, which the Justice Committee has taken evidence on. The fact that the review is taking place is welcome. The hon. Member for Manchester Central and my right hon. Friend the Member for Sutton Coldfield referred to the disproportionate impact that the use of prosecutions using joint enterprise has on certain communities.

The fact is that a doctrine developed some 300 years ago still has effects on the social life of 21st century Britain, and those effects are very different from what Lord Hale described in his “History of the Pleas of the Crown” in about 1670. We need to have a means of applying that prosecutorial tool in a way that reflects modern society.

I hope that the public interest element of the Attorney General’s guidelines can be strengthened to consider the appropriateness of using this tool in the way we have discussed, given the impact on certain communities within the United Kingdom. I hope that those are constructive suggestions that we can take forward from this debate.

--- Later in debate ---

[Stephen Pound]

Absolutely. The Supreme Court ruled that the law had been interpreted incorrectly, but that is only half of it. Interpreting the law incorrectly is one thing, but righting the wrong is what has to happen now.

[Robert Neill]

rose—

[Stephen Pound]

When it comes to righting wrongs, I give way to the hon. Gentleman.

[Robert Neill]

The hon. Gentleman is making a passionate case, and I agree with him that righting this wrong in the way the law has been applied is important. Does he agree that there is a distinction between the concept of joint enterprise and how it has been applied? For example, if he and I jointly agreed to commit a burglary, the application of joint enterprise in those circumstances would be perfectly reasonable. The problem is the extension to groups of young people when one of them commits acts of violence and when it is suggested that foresight can be equated with intent. That is taking the doctrine beyond a sensible application.

[Stephen Pound]

The hon. Gentleman has indicated a way forward. He knows the case of Craig and Bentley, which I remember very well indeed. Let us not forget that one of them was hanged in a joint enterprise. Is it not a salutary thought that if the present law on joint enterprise had been applied when we had the death penalty, 20 young men would have been hanged. Can you imagine? If everybody in a group of people where somebody dies was said to be guilty, as with Craig and Bentley, would they then all have been hanged? The mere thought of that is so horrific—so disgusting—that it surely brings into sharp relief the insanity of this legislation and the idea that this great blanket of culpability is cast over a whole group of people. This law is nonsensical. It is cruel; it is brutal; it is outdated; and it has to go.

Amazingly, this is the first time that we have debated this subject on the Floor of the House. I hope that today will be the beginning of a process that leads to people like Alex Henry seeing daylight, and his child and his family, again. When I last saw Alex—I have visited him a couple of times—he was keeping his head down and keeping his nose clean. He was working in the kitchen. He actually had kind words for the staff at HMP Whitemoor, but the hope was going out of his eyes. You could actually see him looking at that long, long stretch ahead of him.

As my hon. Friend the Member for Huddersfield (Mr Sheerman) mentioned, Alex is a man on the autism spectrum. In his appeal, evidence was submitted on his behalf by none less than Professor Baron-Cohen. One cannot get a higher authority than that. Was that opinion accepted? Clearly not, because my constituent is still in prison. He is a young, autistic man who, for 40 seconds of his life, did not stop something happening. He did not do anything wrong; he did not stop it happening. Can it really be right in this day and age that the law we are all sworn to uphold—that we are a part of as part of the establishment of this country—is having that impact on people, disproportionately on young black men, and disproportionately on the innocent?

I profoundly hope that this debate is one of those occasions when something really good comes from this place—where we put down a marker to say, yes, we thank JENGbA for all its work, but even without JENGbA, in our own heart of hearts, in our own knowledge and analysis of the situation, we realise that this stinks. It is wrong—dangerously, destructively, corrosively wrong. We have to do something about it. Let today be the day that we consign the present interpretation of joint enterprise to the dustbin, move forward and bring the law back into repute—take it away from ill-repute. I hope that Kenneth Alexander and Alex Henry can then take their rightful places in society where we want them to be. May they be here in the House of Commons, in the Gallery or wherever, rather than behind bars at the nation’s expense. We cannot go on like this.

--- Later in debate ---

[Mr Lammy]

My hon. Friend’s point is exactly right. The issue is: what would happen if the principal’s intent was graver than the accessory’s? In all the cases that have been mentioned, that is absolutely the case. What would happen if the outcome of whatever act the principal carries out is far graver than the accessory was aware of? Getting into questions about the foresight and intent of a young adult is next to impossible, given all that we know in modern times about child psychology, so it is absolutely right that young people should not be convicted in those cases.

[Robert Neill]

The right hon. Gentleman is making a powerful case and perhaps I can offer him some support. As evidence to the Justice Committee has made clear, practitioners feel it would be of greater assistance to juries deciding on these issues if there were a statutory framework within which they could work. We have done that with the Theft Act 1968, which replaced out-of-date common law arrangements. Ironically, in the Jogee case, the trial judge of first instance was this country’s first black woman High Court judge, but she was obliged to follow the rules of precedent. Had there been a revision of them by statute, the situation might have been different.

[Mr Lammy]

The hon. Gentleman is right. He makes the case that it is now for the House really to get thinking about these matters.

As the hon. Gentleman will be aware, an accessory party can be liable under joint enterprise, even if they withdraw from a group before any crime is committed. Many hon. Members will think of the example of a group of students in a playground or a park, where someone talks about teaching someone a lesson—in fact, we might recall such an occasion from our own lives when we were younger—and one of those individuals thinks that teaching a lesson involves significant violence, assault or even something ending in murder, and just because the group had discussed teaching someone a lesson, someone else may end up in prison for murder.

We have been in the House when or know of times when Members have picked up the Mace—I am thinking of the former leader of the SNP and Lord Heseltine. If you picked up the Mace and an older Member thought it was coming towards them and died from a heart attack, you would be in serious trouble. However, if you had discussed it with your colleagues beforehand, they too would be in serious trouble. A whole political party—on that occasion, the SNP—might have been heading towards that. That shows how ridiculous this situation has become, and it is why we need an urgent review.

We are having this debate after politicians have said, “We have to crack down on gangs and that is why we are doing this.” But has it worked? Knife crime is rising: in England and Wales, there were 36,998 knife crime offences in the 12 months to the end of June. Hospital admissions as a result of knife crime and the use of sharp objects are rising. We have a real problem in London, which the Mayor of London is trying to deal with. Has this therefore had the effect that people suggested it would? It has not. It has not had that effect because it is not minors driving knife crime—it is serious organised criminals: gangsters and kingpins. They are driving the trafficking of cocaine and drugs, which is leading to the turf wars that are making some of the communities we represent more violent. The 14, 15 and 16-year-olds or those in their early-20s locked up for the offence of joint enterprise do not know anything about getting a tonne of cocaine from Bolivia or Colombia. We must go after the gangsters, but we are hearing very little about that.

The Ministry of Justice’s own research on joint enterprise convictions understands the psychology of young people. It understands the need of teenagers and juveniles to belong to a group. It understands that they have a predisposition towards risk, seeking excitement and reckless behaviour. It understands their inability to inhibit their impulses and the fact that they have less self-control. All of us in the House who are raising or have raised teenagers will recognise all those characteristics. Are we really going to throw young men—black and white—into prison because they are young?

I have two boys at home. They navigate the streets of north London on their way to school and one in particular goes through some high knife-crime areas. I am raising boys who would never ever take a knife out of the house and use it on anybody else—I am absolutely sure about that—but can I say, if something is going on in a park, that one of them might not drift towards the action? Hand on heart, as a father, I cannot say that. I do not ever want to have to visit one of my own children in prison. None of us should want ever to have to visit young people in prison. None of us should want that waste. None of us should want those criminal records. It is time that this House acted.

--- Later in debate ---

[Ruth Cadbury]

I thank the right hon. Gentleman so much. Anybody who has had any contact with people who have been diagnosed with autism at a later stage knows that the condition is often not diagnosed early. Many people go though many difficulties in their lives before being diagnosed, if at all. Alex was one of those in that unlucky situation. Because autism is an invisible disorder, many assessments found traits of autism as highlighted in Professor Baron-Cohen’s report. That could be a factor in appeals.

The refusal of Alex’s appeal has left the family devastated, as the House can imagine, but they are determined to see him proved innocent. In their view—and mine, from what I know of the case—he is not a murderer. How many people in prison for joint enterprise have undiagnosed autism? We need to look at that.

Since Alex’s appeal was rejected last year, his sister Charlotte has applied to challenge the “substantial injustice” at the Supreme Court. The family are also taking Alex’s case to the European Court of Human Rights. They believe that joint enterprise breached article 7 of the European convention on human rights and the principle of legality that holds that there shall be no punishment without law. Since those convicted under joint enterprise were not actually convicted under a true law, their presumption of innocence under article 6(2) remains, and it is breached by the need to prove that the change in the law would have made a difference.

In October 2016, the Select Committee on Justice, on which I have the pleasure and honour of serving, wrote to the chair of the Law Commission to suggest that it review the law of joint enterprise, given the lack of legal clarity in the wake of the Jogee judgement—particularly on how juries should be directed on the question of intention. Unfortunately, the final version of the 13th programme of reform omits any work on joint enterprise. I know, however, that the Justice Committee’s Chair will continue to push those points.

[Robert Neill]

The hon. Lady is right that the Committee will want to pursue that point. However, there is nothing to stop the Government themselves asking the Law Commission to carry out a review, as has happened a number of times in the past.

[Ruth Cadbury]

Like the hon. Gentleman, I look forward to the Minister’s response.

As we have heard, the Justice Committee also wrote to the Director of Public Prosecutions suggesting clarification on the intention of the defendant. I support the clear demands put forward by my hon. Friend the Member for Manchester Central: proportionality, the need for proper data, a review of the CPS guidance and a review of older cases. All those are essential, and we look forward to the Minister’s response on all those issues.

For the sake of Alex, the thousands of others imprisoned under joint enterprise and their loved ones, I support the calls of colleagues across the House that the injustice be rectified. Let us right the wrong. If we really want to address knife crime, let us learn from the places that have actually brought it down.

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[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

I am very grateful to my right hon. Friend for his comments. I would like to start the debate by commending the hon. Member for Manchester Central (Lucy Powell) for securing this debate on an issue that is close to her constituency and to her heart. I also want to thank my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell), my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) and the right hon. Member for Tottenham (Mr Lammy) for supporting the motion today.

I fully recognise the importance of the law in this area. When anyone is charged and convicted of a crime, it will have serious consequences for them, their families and their victims. This is especially the case when the charge may be for such a serious crime as murder. I also recognise the sensitivity of this issue, given that the youngest of those that JENGbA supports was 12 when he was charged with the offence, as many Members have mentioned. That will obviously have a significant impact on his life.

Many Members have identified what the Supreme Court decided, but it is important to set out the principles involved because some Members put forward hypothetical circumstances that could result in a conviction for accessory liability, and I am not sure that all those circumstances were right. It is important to be clear what we are talking about from the outset.

First, I will summarise a few of the points in the Supreme Court judgment in the case of Jogee, which was handed down in February 2016. It concerned a very specific area of the law on joint enterprise called parasitic accessory liability, rather than the whole law of joint enterprise. Such liability arises when two people, person 1 and person 2, participate together in one offence, such as a burglary, and during those events, person 1 commits a second offence—for example, he or she murders a security guard. Under the law as it stood before Jogee, if the second person foresaw that the first person might act with the intention to kill or cause really serious harm and participated in the burglary none the less, that second person would be guilty of murder alongside the first.

In the Jogee judgment, the Supreme Court said that that was wrong, as the motion recognises. A person cannot be guilty merely for foreseeing that an accomplice might commit a second offence during the course of the original plan. Rather, the Supreme Court held that such a person can be guilty only if he or she intentionally encourages or assists a person to commit such an offence and intends them to have the mens rea required for that offence. The effect of Jogee is that members of a gang who are not the principal perpetrators of the crime will not necessarily be guilty of the crime in question unless it can be shown that they have intentionally encouraged or helped the principal perpetrators to commit that crime. As many Members have said, the Supreme Court also held that offenders convicted under the old test would be granted permission to appeal only if they had suffered “substantial injustice”. That is the position as it stands, as a matter of law.

I should like to respond to some of the points that have been made today. In the short time allotted, I am afraid that I will not be able to respond to them all. I shall concentrate on those that are identified in the motion. There has been a suggestion that the number of cases brought under joint enterprise has been unchanged since the Supreme Court judgment. As the hon. Member for Bolton South East (Yasmin Qureshi) and others have pointed out, however, the difficulty with that argument is that there are no official statistics to enable us to confirm or deny that. A number of Members have criticised the Ministry of Justice for not collecting that data, and we are looking into that. It might be possible to address that under our reforms relating to the common platform. I can confirm that the Ministry of Justice is looking into the matter.

The point was also made that there has not yet been a successful appeal. I understand that that could be extremely frustrating for the parties concerned, but it does not mean that there is no route to an appeal. There is a system to challenge any previous decisions. It is possible for an appeal to be made by an individual, who could also apply to the Criminal Cases Review Commission to have their case reviewed by the Court of Appeal. Indeed, a number of cases have been brought. [Interruption.] They have been brought, but they have been unsuccessful. There has also been criticism of the threshold that the Court of Appeal applies in relation to substantial injustice, but this is not a new test brought in by the Supreme Court in relation to Jogee. It is a long-applied test that the Court Appeal uses in relation to out-of-time appeals.

The key point that has been advanced in relation to the motion today is that there is a need for legislation. I should like to identify a few reasons why it might not be appropriate to bring forward legislation at this stage. First, the law on joint enterprise is not set out in statute; it has evolved through case law. Some criticism was made of that by the right hon. Member for Tottenham, but the evolution of law through the courts has always been an important part of our common law justice system. In our law, the common law has equal weight with law made by statute. No judge in the Jogee case identified a need for Parliament to change the law. Indeed, the hon. Member for Manchester Central has accepted, today and previously, that the Supreme Court ruling said that it was the responsibility of the courts to put the law right. Many Members have accepted that the law as set down by the Supreme Court is right, but some have identified that the implementation of that decision is flawed. I would like to make a few points in relation to that.

The Crown Prosecution Service has already amended its guidance and it is currently operating on guidance in line with the Supreme Court decision. More importantly, it has consulted on revised guidance for use by prosecutors. The hon. Lady has contributed to that, which is to be commended. I am told that the CPS aims to publish a summary of its response to the consultation and the final version of its guidance in the early part of this year.

Many Members have rightly identified the disproportionate number of black and minority ethnic defendants in these cases, and I am pleased that the CPS has confirmed that the revised guidance will take account of the Lammy recommendations, which task the CPS with taking the opportunity of reworking its guidance on joint enterprise to consider its approach to gang prosecutions in general. The CPS has also revised its internal resources on gangs in the light of the recommendations resulting from the Lammy review.

The motion calls for clarity in the law, but it does not identify what the lack of clarity is or how the law could be improved. Indeed, as the hon. Lady has said, what is needed is for the Supreme Court judgment to be followed. There is no suggestion that the law itself needs to be changed; it just needs to be enforced.

[Robert Neill]

Does my hon. and learned Friend agree that it is not the doctrine of joint enterprise that needs to be put on a statutory basis or given clarification, but that its operation in relation to homicide, and the law of homicide itself, would benefit from a statutory review? That has been suggested by the Law Commission and by the Criminal Bar Association, and it would give us an opportunity to deal with the anomalies in joint enterprise in the context of homicide. I think that that is what we are looking for.

[Lucy Frazer]

My hon. Friend is prescient; I was about to go on to the broader points that were made during the debate. He made that point in his own speech, and he has raised it in the Select Committee as well. As a new Minister, I am happy to consider that in due course.

Some other, broader points were made. My right hon. Friend the Member for Sutton Coldfield mentioned disclosure, which I know the Attorney General is looking at. Many other points were made, and I will happily address them when time allows.

To return to the motion, I recognise the importance of the law on joint enterprise and the impact that it can have on people, such as the constituents of the hon. Member for Manchester Central and the others mentioned today. For the reasons set out, however, the Government do not believe that the time is currently right for any changes to the law on joint enterprise. It is for the courts to interpret the law, as laid down by the Supreme Court. I hope that the revised guidance on secondary liability will provide a clear direction for prosecutors in this area of law, and I am happy to keep the matter under review. With that in mind, I invite the House to reject the motion.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 23rd January 2018 Commons Chamber

[Mr Gauke]

The hon. Lady raises an important point. Having satisfactory arrangements with the European Union in that and other matters is important. It is right that we are ambitious so that the interests of children are put at the heart of what we do.

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

I welcome my right hon. Friend to his post—it is nice to see a lawyer there. I hope that he has a lengthy tenure, if not quite as long as that of the last lawyer from Ipswich who was Lord Chancellor, and with a better ending.

Much of the debate has been concentrated on criminal justice co-operation. In his speech on being sworn in, my right hon. Friend rightly referred to the importance of the UK as a jurisdiction of choice in civil and commercial litigation. Will he make sure that that aspect is not lost in our negotiations, in particular the importance to London and the UK’s financial services sector of having contractual certainty?

[Mr Gauke]

I thank my hon. Friend. Given that the last Lord Chancellor from Ipswich was Cardinal Wolsey, who ran into some difficulties in negotiations with a powerful European supranational body, I should tread carefully. It is important that in our negotiations we try as best we can to provide the certainty my hon. Friend seeks.

--- Later in debate ---

[Lucy Frazer]

As I have outlined, there is a £1 billion modernisation programme, which is very complex and which we need to get right. It involves a number of aspects that need scrutiny. PwC is replacing a number of smaller providers and fulfilling an important service.

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

Recent reports by Her Majesty’s inspectorate of prisons reveal a consistent failure by the Prison Service to act on recommendations made by the inspector in previous reports. Does the Minister agree that compliance with inspectorate reports should be the norm, rather than the exception?

[Rory Stewart]

Absolutely. Peter Clarke, the chief inspector of prisons, does an extraordinary job. We are doing two things to make sure that we implement those recommendations better. First, we have set up a special unit in the Ministry to follow up on every one of those recommendations. Secondly, we have introduced an urgent notification process, which requires us to reply within 28 days to any issues raised by the inspector.

Parole Board: Transparency and Victim Support

Robert Neill Excerpts

Friday 19th January 2018 Commons Chamber

[Mr Gauke]

I thank the hon. Gentleman for his questions. In the context of wanting to support the victims, he was right to focus on the areas that he did, and I am grateful to him for not pressing me further on either the facts or the legal advice.

It is right that the victims be treated with concern and sympathy and that all due processes be followed. We need to understand precisely what happened in this case and whether support was provided as it should have been, which is why I am pleased that Dame Glenys Stacey is undertaking that role. I share the hon. Gentleman’s instincts for greater transparency in Parole Board decisions. It frustrates victims that they do not get to know what is happening or the reasons for a decision. Equally, it can be frustrating for the Parole Board, too, if it cannot articulate its reasons. We need to look carefully at this, but we also need to move swiftly, which is exactly what I intend to do.

On an end-to-end review, my focus has been on transparency and victim support, which are the immediate issues in front of us. I recognise that there is a debate about the original investigation and how these indeterminate sentences for public protection, which we have now abolished, operated, but it is right at this point that our reviews focus on transparency and the victims and that they continue as a priority to look at how these matters are dealt with.

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

Happy birthday, Mr Speaker.

It is clear that my right hon. Friend the Lord Chancellor has applied himself to what is a very serious and troubling case with the greatest scrupulousness and care. He is to be commended for having applied a difficult legal test to what is ultimately a legal decision, and I welcome his extension of the review into the operation of these matters. Does he agree that one political and policy decision we could make as soon as possible would be to change the Parole Board rules to permit Parole Board panels to give reasons for their decisions. It would likely command support across the House and, as he rightly observes, have the support of the Parole Board itself. It would also be of great reassurance to the public.

[Mr Gauke]

My hon. Friend makes a good point. We understand the full implications of greater transparency in Parole Board decisions and what those implications might involve. It is not my desire that as a matter of course offenders should take cases where, for example, Parole Board panels have taken the firm line, based on the evidence in front of them, that they should not be released. We need to understand the full implications, but there is clearly a case for much greater transparency.