Streatham Incident

Suella Braverman Excerpts

Monday 3rd February 2020 Commons Chamber

[Robert Buckland]

I am very glad that the right hon. Gentleman asked me that question because it allows me to develop part two of the point. He will have noticed in the years since the debate on TPIMs a welcome increase in the number of prosecutions for offences of terrorism. I have always believed, as I think he does, that the best way to deal with this type of offender is prosecution. The number of returning foreign fighters who have been prosecuted—I personally granted consent to a large number of prosecutions when I was Solicitor General—means that we have had an increasing number of that cohort in our prisons. It is as a result of conviction that they are on sentences, rather than part of that control order regime. I am afraid that he is choosing to ignore this point: it was a system that we had to change and I do not think it was the wrong thing to do.

[Suella Braverman (Fareham) (Con)]

When I was Treasury counsel, I acted for the Government in various parole cases in which the Human Rights Act 1998 was often a feature. Does my right hon. and learned Friend agree that strained interpretations of the Human Rights Act have served to undermine the delicate balance of rights versus responsibility, and that we now need an approach that means that national security and public safety will never be jeopardised?

[Robert Buckland]

My hon. Friend speaks with considerable experience. Human rights are there to protect us all. They should never be a means of enhancing the rights of those who would wish us ill. Therefore, while it is important that we have that underpinning framework, we must make sure that the balance is always struck in the interests of the protection of the public when it comes to serious violent and terrorist offenders.

Privatised Probation System

Suella Braverman Excerpts

Monday 4th March 2019 Commons Chamber

[Rory Stewart]

We will look very carefully at the contracts. Along with the issues that we will be examining, there is the issue of break clauses, but there are other issues, too. One issue that we have learned from is what happens in procurement legislation to allow us to put more money into a service if something unpredictable such as the caseload shift happens and what it takes to bring it back into the public sector. Contracts are the key to this.

[Suella Braverman (Fareham) (Con)]

I hope that my hon. Friend does not resign, because he is doing a very good job in his post and I hope that he continues to do so. Dickson House is a probation service bail hostel in Fareham, which I have visited. The team there delivers a vital service in supporting former serious offenders and integrating them back into the community. Does my hon. Friend agree that work such as that being done at Dickson House is helping to improve reoffending rates and keep our citizens safe?

[Rory Stewart]

It is great to have an opportunity to pay tribute to the work of our probation hostels. Some of the people who work in them are incredibly dedicated public servants, and they often have to work with very challenged individuals. They often have enormous success in changing lives and protecting the public.

European Union (Withdrawal) Bill

Suella Braverman Excerpts

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

The UK helped to found the modern system of international law, and we remain champions of that system across the globe. Our approach to leaving the EU has shown, once again, that we will honour our international obligations. The Government and Parliament have a duty to protect and maintain the UK’s good reputation on the world stage, and ensure that our domestic law complies with the undertakings we have made on the international stage such as those relating to the Council of Europe, whose purpose is to uphold human rights, democracy and the rule of law in Europe, and to promote European culture.

[Suella Fernandes (Fareham) (Con)]

I appreciate the Minister’s explanation of the scope of clause 8. Does he agree that, just like clause 7, clause 8 is limited in that it relates only to withdrawal issues and is a sunset clause?

[Mr Walker]

My hon. Friend make a good point on the exact matter that I was going to come to in a moment; she pre-empts me brilliantly.

Clause 8 is needed—I think that this answers the point made by the hon. Member for Greenwich and Woolwich—because not all the UK’s international obligations that might be affected by withdrawing from the EU are implemented domestically in what will be retained EU law. Those which are implemented elsewhere are therefore out of scope of the correcting power in clause 7. In addition, there are restrictions on the use of clause 7 relating to, for example, taxation that might, in some circumstances, prevent important changes to comply with international arrangements from being made. We need this power because we need to be prepared for all eventualities.

I would like to clarify that any SIs made under clause 8 that transfer a legislative function, or create or amend any power to legislate, will be subject to the affirmative procedure, as provided for in clause 7. Therefore, Parliament will be able to debate any transfer of powers, and consider the proposed scope of such powers and the scrutiny proposed for their future exercise. Clause 8 gives Ministers a temporary and limited power, as my hon. Friend the Member for Fareham (Suella Fernandes) said, to make regulations to prevent or remedy breaches of international obligations. The provision contained in the secondary legislation must be an appropriate way of doing so and will have to pass before this House under the parliamentary procedures that we have been discussing over the past couple of days. In addition to its limited goals, the power is subject to a number of further limitations. It expires two years after exit day and, as listed in subsection (3), it cannot “make retrospective provision”, create certain types of criminal offence,

“implement the withdrawal agreement, or…amend…the Human Rights Act”.

Prisons (Interference with Wireless Telegraphy) Bill

Suella Braverman Excerpts

2nd reading: House of Commons
Friday 1st December 2017 Commons Chamber

[Suella Fernandes (Fareham) (Con)]

I am honoured to follow my hon. Friends, who have made some passionate contributions to the debate. I congratulate my hon. Friend the Member for Lewes (Maria Caulfield) on continuing the work of my right hon. Friend the Member for Tatton (Ms McVey) on promoting this much-needed and important Bill. If it is passed—I am very glad the Government are supporting it—it will be a crucial component in our armoury in the fight against crime, as we seek to ensure the safety of all our citizens.

I am pleased to follow my colleagues and to talk in support of the Bill. I am particularly pleased to follow my hon. Friend the Member for Eastleigh (Mims Davies), who is my neighbour in Hampshire. She made extensive reference to Her Majesty’s prison in Winchester, which is a large secure establishment serving both of our areas. I have met constituents in my surgery in Fareham who have been released from Winchester. On the whole, they have had very positive experiences, and I congratulate the staff at Winchester on their pioneering work and the efforts they put into providing inmates with a safe and appropriate climate for their terms in custody.

I am proud that in Fareham we have Swanwick Lodge, which is a secure unit. My hon. Friend the Member for Eastleigh mentioned rehabilitation, and Swanwick Lodge provides accommodation for children and young people between the ages of 10 and 17 who have been caught up in crime. I have been to visit Swanwick Lodge, and I have been taken aback and impressed by the commitment, dedication and expertise of all the staff, who are really trying to transform the lives of young people who have, unfortunately, founds themselves caught up in crime but who want to come out, to reform themselves and to make their future better than their past.

The Bill contains new powers for the Secretary of State. It would authorise public communication providers, including mobile phone network operators, to interfere with wireless telegraphy so that they can disrupt unlawful mobile phone use in prison. For me, as I said, that is critical in the fight against crime.

That raises many issues about the balance of privacy and security, and about the pace and character of technological change in the 21st century. That is why the Bill has my support, in that it will equip our law enforcement officers and security agents—those at the forefront who are tasked with the difficult challenge of keeping us all safe—to stay three, four or five steps ahead of the criminals. That is important if they are to be effective in disrupting plots, to identify threats, to intercept communications and to properly take action before attacks are carried out.

[Mims Davies]

Given her time in the law, will my hon. Friend comment on how the change in mobile technology has affected the court process and the matters she was involved with, and on how we must catch up when it comes to mobile phone usage and the pressures in the prison system?

[Suella Fernandes]

I am grateful for the reference that my hon. Friend makes. Yes, I was a barrister for 10 years and worked in and out of the courts. Part of my work was serving on the Treasury counsel panel defending Government Departments, including the Ministry of Justice, and decisions by the Parole Board on sentences. On occasion, I visited prisons in that capacity.

The use of mobile technology has transformed not only the way that people in prisons communicate but, in relation to my hon. Friend’s point, the way in which we use our courts system. I am very glad that this Government are at the forefront of leading technological change in our courts so that we can speed up the filing of papers and the exchange of documents. We can even use technology so that witnesses can be cross-examined or examined-in-chief via satellite television links. Inmates in prison can be questioned by counsel in a court on the other side of the country if it is not convenient or feasible for them to travel. This technology has been integral in speeding up justice. Obviously that should not be done at the cost of good justice and proper decisions, but it cuts costs and enables swifter decision making, and that cannot be a bad thing.

I have a particular interest in this Bill because, along with my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), who I see in the Chamber, had the privilege of serving on the Joint Committee on the draft Bill that became the Investigatory Powers Act 2016. It was an extensive Bill that dealt with the very issue we are talking about—powers to enable our law enforcement agents, intelligence officers and policemen to be ahead of the curve when tracking down crime. During its passage, we met many experts at the forefront of this challenge, and also many opponents of greater security powers such as Liberty and Big Brother Watch—organisations that advocate for privacy rights. I applaud their work in many respects.

In the course of my work on the Bill, I was struck by the pace and the character of technological change. Methods that we all use innocently to book holidays, to buy our shopping and to communicate with friends and family across the world are also, sadly, abused by people who are trying to harm society and take advantage of vulnerable people. Terrorists use WhatsApp. Serious fraudsters use telecommunications. Paedophiles use secret Facebook groups to pursue their insidious aims. I am glad that this Bill is the next step in this fight. It will continue the Government’s work in cracking down on crime, and it has my full support.

European Union (Withdrawal) Bill

Suella Braverman Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Leslie]

I am not quite sure that is the interpretation of the courts, which have referenced the charter of fundamental rights in a number of cases. If the hon. Gentleman listens to the case that my right hon. Friend the Member for East Ham (Stephen Timms) will make in respect of amendment 151, on the free flow of data across borders and on the protections we have, he will hear how the very backbone of our data protection laws, which go alongside the general data protection regulations, is represented in the charter of fundamental rights. It is not me making the case; it is techUK, the trade bodies and the organisations that campaign and fight to protect data and privacy rights. Many organisations and non-governmental organisations will be bombarding the inboxes of Conservative Members as we speak about those protections.

[Suella Fernandes (Fareham) (Con)]

Will the hon. Gentleman give way?

[Mr Leslie]

I want to make a little more progress, if I may, because I need to reference a number of other amendments.

I hope this is not the case, but it seems to me that the Prime Minister, worried that hard-line Eurosceptics and Brexiteers on her Benches are champing and nipping at her heels, had to throw them a bone. There was a need to give them something, and therefore the charter of fundamental rights was the scalp she felt she had to throw in the direction of some, but not all, Conservative Members. I hope that is not the case, because significant protections on data, on children’s rights and on public health—even the protections that the Secretary of State for Exiting the European Union himself has used—are rights and privileges that we should jealously guard. It is our job in this Parliament to stand up and point out when the Executive are potentially trying to erode many of those rights. I hope we can keep the charter or, at the very least, have a report on its effect.

Amendment 62 also addresses changes in rights. This is not a pure copy-and-paste exercise, and the amendment seeks to preserve something known as the Francovich rule in our legal system. Essentially, it is a fundamental principle of any democracy that Governments should not be above the law. In EU law, the principle is made real by the Francovich rule, which was established by case law that provides citizens with tools to recover damages when their Government fall short of legal obligations. In this case, again, the Government are trying to do away with those protections, and I tabled the amendment—other hon. Members have tabled similar amendments—to probe the Government and to find out what will be the effect of removing the Francovich protection.

--- Later in debate ---

[Mr Leslie]

My hon. Friend is correct about that and she has tabled a very good amendment on this issue. Ministers need to do better and explain why they would seek to wrench out of the protections for our citizens this potential right-to-redress arrangement, particularly as it may well affect malfeasances and the need for redress that takes place before exit day. This is not just saying that this rule will not apply to situations that occur after exit day; its drafting would prevent that right to redress, even if the claim itself relates to an occasion prior to exit day. All hon. Members, regardless of political party, should therefore think of their constituents, the cases we pick up and the surgery discussions we have with people who ask what they can do. The Government are a large and powerful organisation—many Conservative Members often make that point about the size and power of the state—and individuals need rights in order to protect themselves in some of those circumstances. This is something that really should transcend the normal party political issues.

[Suella Fernandes]

As the hon. Gentleman will know, the threshold for claiming damages under Francovich is that the breach needs to be “sufficiently serious”, which is a principle stemming from EU jurisprudence and case law from the European Court of Justice. Is his position that claims will be interpreted under UK law even in the event of a lack of provision of “sufficiently serious” in UK statute, or is it that UK courts would be applying ECJ jurisprudence in that event?

[Mr Leslie]

Would it not be great if we were having a proper debate about retaining Francovich protections, albeit possibly making an amendment? The hon. Lady may well have a case for increasing or decreasing the level of the damage thresholds in place, but that is not what we are debating; we are debating simply the deletion of this Francovich protection—that right to redress—from our laws and protections. I would be happy to discuss with her where that level should be set, as there is a debate to be had about that, but we are talking about the principle, yes or no, and whether this should be retained within this legislation.

--- Later in debate ---

[Paul Blomfield]

I will come on to this point, but the charter is key to ensuring that retained law is treated properly and that the same rights of enforcement continue in the future. Without the charter, those rights are significantly diminished and access to them is diminished.

Let me proceed with the point I was making about how the charter goes wider than the Human Rights Act and the European convention on human rights, which I hope I am right in saying the Government accept. As other Members have already pointed out, it was the Secretary of State for Exiting the European Union who relied on the charter in the case he brought before the High Court in 2015, against the then Home Secretary and now Prime Minister, when he was worried that the Data Retention and Investigatory Powers Act 2014 would impact on MPs’ ability to communicate with constituents confidentially. He cited the charter, and his lawyers argued that it went beyond the European convention on human rights and granted further protection. He relied on the charter precisely because it provided greater human rights protection than was provided for by UK law and even by the case law of the European Court of Human Rights.

Despite this, the Government have not indicated which decisions of the Court of Justice of the European Union under the charter they disagree with. Moreover, the explanatory notes to the European Union (Withdrawal) Bill justify the decision to exclude the charter from retained EU law by saying:

“The Charter did not create new rights, but rather codified rights and principles which already existed in EU law. By converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law, as provided for in this Bill.”

If that were the case, it would be fine, but it is clearly not the case.

Drawing on existing rights, the charter set out a new framework for human rights protection under EU law. The rights contained in the charter may have existed in EU law for decades—the Government are relying on that point—but that is not enough. The whole point of the charter was that nobody could verify those rights or their sources, and as the lawyers among us will know, identifying the source of a right is imperative in securing effective recourse. In his speech, will the Minister therefore clarify whether the Government have succeeded, where others have not, in comprehensively identifying every single source of these rights? If not, how do they plan to uphold the same level of protections for these rights once we have left the European Union, because a right without effective recourse is rendered effectively meaningless?

By compiling and codifying these rights in a single document, the charter in effect created new rights and certainly created new protections. In short, the charter is the most effective key to unlocking vital rights, and to fail to transpose it and make it operable in UK law is to lock away those rights and deny UK citizens the key to accessing them.

On the data protection point on which the Secretary of State relied—my right hon. Friend the Member for East Ham (Stephen Timms) raises it in his amendment 151, which we support—the right to data protection exists in various documents, such as directives and regulations, but it was only by virtue of the charter creating the expressed right to data protection in article 8 that we were given the right to be forgotten.

The rights extended by the charter are not only data protection rights. Such rights start in article 1, which includes the right to human dignity. This does not exist as an enforceable right in common law or statute law applicable to retained law post-Brexit. Will the Minister, when he responds, explain how this right will be enforced after exit day if the charter is not retained?

[Suella Fernandes]

Will not the hon. Gentleman’s proposals create more uncertainty and raise more questions than answers? For example, considerable reference has been made to the Union, to citizens and to the right to vote and stand in European elections, but is that not at odds with our being a non-member state on our leaving the European Union?

[Paul Blomfield]

No. The right hon. and learned Member for Beaconsfield answered that point when it was raised by other Members. There are clearly provisions in the charter that would have to be amended to become operable—I made that point a few moments ago—but it includes fundamental rights, so the protections of our citizens will be reduced if the those rights are not carried forward. I will illuminate that point a little further.

[Suella Fernandes]

The hon. Gentleman proposes that part of the charter should be erased and that it should undergo some kind of surgery before it is applied through UK law. Is it not right that questions of principle and policy should not be debated in relation to this Bill, the purpose of which is to provide legal certainty and continuity, but left for wider parliamentary debate and scrutiny, and indeed the wider democratic process?

[Paul Blomfield]

I am genuinely puzzled by the hon. Lady’s point because she could make it in relation to all of the several thousands of laws that are being transposed. It could relate to every other part of the Bill. We will have to go through processes of adjustment to ensure their effective operability, but the question that needs to be answered—I hope it will be answered by the Minister when he rises at the Dispatch Box—is: why, uniquely, is the charter of fundamental rights being treated differently and being removed at this stage?

--- Later in debate ---

[Joanna Cherry]

I am grateful to the Minister for that. I had understood that the revision and repeal of the Human Rights Act was on the back burner, but Members on this side of the House and many Conservative Members can celebrate a great victory if that plan has now been dropped and the Government are backing down on it. Unfortunately, I very much doubt that we will be in the mood for celebration as we are facing the Government’s chaotic plans for Brexit, and that is what we have to discuss today.

My colleagues in the Scottish Government in Edinburgh have recently reiterated their firm commitment to the idea that international human rights norms should not just be signed up to by the jurisdictions of these islands, but should be given direct effect by giving individuals and businesses the opportunity to raise and realise their rights in the courts. The Scottish Government have indicated that they intend to

“implement the socio-economic duty in the Equality Act 2010 by the end of this year, placing a requirement on key parts of the public sector, including Scottish Ministers, to have due regard to reducing the inequalities caused by socio-economic disadvantage when taking strategic decisions. This is a key component of our approach to tackling poverty.”

The Scottish Government also committed in their programme for government to look at how they can further embed human, social, cultural and economic rights, including the UN convention on the rights of the child. That is an indication that the Scottish Government’s direction of travel on international human rights norms is very different from the UK Government’s. It reflects the fact, as I said earlier, that human rights are not a reserved matter save in so far as the repeal or amendment of the Human Rights Act is concerned. Indeed, the Scottish Government have the power to legislate to protect human rights and intend to do so.

That leads me to comment briefly on new clause 78 and a new right in relation to equality that is intended to apply across the United Kingdom. There is a laudable intention behind the new clause, but its application in Scotland, Wales and Northern Ireland would require discussion with and the consent of devolved Administrations, if it were to be incorporated into the devolution statutes. The Scottish Government’s and Scottish National party’s position on human rights also reflects the wishes of voters in Scotland, who voted to remain in the EU by a considerable margin and voted in considerably larger numbers for parties that support international human rights norms than for those that do not.

It is about time that this Parliament started to recognise that views across these islands are quite divergent from the sort of Brexit that the Government are proposing. The cross-party amendments would go some way towards the aim of keeping us in the charter and keeping remedies for UK citizens. Of course, that is not to say that there are not many people in England and Wales who voted to leave and also wish to see the charter of fundamental rights preserved. We heard, if I may say so, a typically eloquent speech by the right hon. and learned Member for Beaconsfield, who said that the rights that have come into our law as a result of our membership of the European Union have done good across these islands, particularly for the most vulnerable people in our society. One would hope that we could agree on that on a cross-party basis.

A lot of misinformation is going around about the charter, and that stems from a resistance to the idea that it is either desirable or necessary for international human rights norms to have direct effect in the United Kingdom. We have to recognise that the logical result of that antipathy to giving direct effect to international human rights norms is to take away rights, and the ability to realise them, from British citizens and businesses. That is surely not a desirable state of affairs, no matter which side of the House one sits on.

As we have heard from a number of hon. Members, the Government have tried to reassure us that importing EU law without also importing the charter will make no difference to the protection of rights in the various jurisdictions of the United Kingdom. Indeed, they state in paragraphs 99 and 100 of the explanatory notes to the Bill that it is unnecessary to include the charter as part of retained law because it merely codifies rights and principles already inherent in EU law. That is what the Minister told us from the Dispatch Box. As others have said, that rather begs a question: if it is just a simple codification, why bother not incorporating the charter?

As I pointed out in an intervention on the Minister, the Exiting the European Union Committee heard evidence from a senior legal academic who said that there will be legislation in retained EU law that refers to the charter, so there will be a lack of legal certainty if the charter is not there. The Minister would no doubt say, “Yes, but the general principles will still be there.” But the charter existed as a codification of the general principles in order to make them more readily accessible.

I am interested to see the list that the Minister is going to produce on 5 December, but he could make his life a lot easier—I know that he and his colleagues have a lot on their plate at the moment—if he just incorporated the charter, rather than running around with bits of paper listing the general principles when they are all listed in the charter anyway. Surely that would be the logical and practical thing to do; unless there is, to use someone else’s phrase, some devilish plot, whereby removing the charter of fundamental rights means that rights will be removed. There is some evidential basis for believing that at least some Government Members think it is a good thing not to incorporate the charter of fundamental rights because it includes rights that they do not like. I am sorry to single out one Government Member, but I did read the article in The Sun yesterday by the hon. Member for Fareham (Suella Fernandes). I am not normally a reader of The Sun, but it caught my eye on Google that it contained an article about the charter of fundamental rights and I thought that every newspaper should be given a chance from time to time, so I had a little look. Like me, the hon. Lady is a lawyer, and she writes:

“This week Parliament will be asked to vote on whether to incorporate the EU’s Charter of Fundamental Rights into UK law. If Labour, acting with others, manage to force this through there will be legal chaos. Not only will it hand new and long lasting powers to UK courts”,

but it has also

“crept into many areas of UK law, from asylum to even national security.”

So there we have it in the words of at least one Conservative Member. There are things in the charter of fundamental rights that some on the Government Benches do not wish to be incorporated into our law.

[Suella Fernandes]

I am flattered that the hon. and learned Lady is quoting me in the Chamber. Does she not find it odd that the effect of her proposals would actually be legal chaos and uncertainty? We would have interacting rights regimes, with the convention through the Human Rights Act, and the charter. This would be precisely at the time at which the Bill is designed to provide legal certainty for businesses, individuals and other Governments.

[Joanna Cherry]

With respect, we have all that at present. The status quo is that the ECHR and the charter of fundamental rights are part of domestic law, and I do not see any legal chaos in our courts, although I do see an awful lot of political chaos.

--- Later in debate ---

[Suella Fernandes]

I am pleased to follow my hon. Friend the Member for Middlesbrough South and East Cleveland (Mr Clarke) on his debut in Committee. I am sure we will all be treated to many more thoughtful contributions based on his experience as a lawyer before coming to this place.

I apologise at the outset, but I will be adding to the chorus of lawyers. There has been an abundance of lawyers—this debate has flushed us out, Mr Hoyle. I must say that I have sat here with nothing but admiration and respect for the very learned interventions and contributions from right hon. and hon. Members on both sides of the House, whose attitude has been to try to improve the Bill. They have obviously been received with a welcome from the Solicitor General, marked by his comments just now.

The issue is not about whether the charter is in or out, and it is not about being pro-rights or anti-rights. For me, it is about whether the Bill, which is designed to provide legal certainty on Brexit day, will achieve that aim or instead create a feast for lawyers, born out of legal uncertainty. The purpose of the Bill is to avoid the overnight evaporation of EU law on the date of our exit by providing certainty and predictability for businesses, individuals and foreign Governments dealing with Britain after we leave the EU.

We want to resolve questions rather than create them, but I do have real concerns. I have great respect for some of the amendments that have been tabled, which have raised many areas of confusion. For example, how would the common-law rules, the Human Rights Act and the charter interact, especially when rights are replicated in the Act and the charter but are interpreted by different courts? We have identical rights interpreted in one way by the Strasbourg Court and in a slightly different way by the Luxembourg Court. That only provides for inconsistency and confusion. What is the position for rights that appear in one document but not the other? What is the position for rights that are in the charter, but will be rendered completely futile as a result of Brexit due to their extensive references to the EU and other EU institutions?

More concerning is the confusion created by the remedies provided in the charter and the role of the Supreme Court and the European Court of Justice. The Human Rights Act contains protections for people in many ways: the right to a fair trial, a right to life, a right to a private life and family life, and the right to be free from discrimination. We in Britain should be proud of that document. Under the Act, the Supreme Court can make declarations of incompatibility in the event of a breach. That power is limited, as a reflection of the role of the Supreme Court in our constitution and the particularly fine balance between the judiciary and our legislature—that hard-won principle of parliamentary sovereignty.

That is not an obscure notion to amuse academics. It is the key foundation of our country’s governance that in this place, in this elected Chamber, we elected representatives have the final say on what rights people are afforded, what restrictions they are subject to, what remedies they can invoke and what responsibilities they owe. That is what our job is here in Parliament. We are elected and are subject to transparency. We are accountable and we can be kicked out if necessary. Judges, in comparison, are unelected. They are, of course, expert and robust in their integrity, but they are often unknown and are away from the glare of publicity. They are not answerable directly to the public in the way that elected representatives are. That is the importance of parliamentary sovereignty and the judicial deference enshrined in, and running through, the Human Rights Act. Only in cases of ultra vires and judicial review will UK courts make such a declaration. In the event of a declaration of incompatibility, there is no obligation on Parliament or the Government to agree to make changes, but often they will respond by amending legislation to align with judgments from the courts—for example, under section 10 of the Human Rights Act. That fine balance is important to ensuring the ultimate accountability of us rule makers and legislators.

I believe that the principle of parliamentary sovereignty could be undermined by the remedy in the charter for disapplying statute, as we saw in the case of Benkharbouche in the Supreme Court last year. The effect is to disregard the relationship between the judiciary and the legislator and to render our Supreme Court more of a constitutional court than an appellate court, which interprets the law rather than declaring what the law ought to say.

Further uncertainty is caused by questions around the potential horizontal application of the charter—between individuals rather than between the state and an individual, as is the position in the Human Rights Act—and questions persist on its application to anything within the scope of EU law as opposed to the implementation of EU law. For me, those principles are not yet clarified and would only create more confusion, if the tabled amendments were to be passed. As I said, this is not about being in favour of or against rights; this is about providing a workable regime, rather than one fraught with confusion and at odds with fundamental principles.

We must not forget that the charter was not originally intended to be the source of rights for the UK. It was meant merely to codify existing rights, as an instrument of the EU, through the interpretation of the ECJ.

[Sir Oliver Letwin]

I think I agree with everything my hon. Friend has said. Does she agree that it would nevertheless be possible to put these rights under the umbrella of additions to the Human Rights Act and thereby enshrine them without creating a role for the Supreme Court to strike down Acts of Parliament?

[Suella Fernandes]

In principle, that would be possible, but I pray in aid the comments of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who has just entered the Chamber, and who eloquently explained that there is no substantive need to do that because those rights are protected in existing legal frameworks or the common law.

As I was saying, the charter is an instrument of the EU for allowing the activism of the ECJ. It is a mechanism intended to ensure the supremacy of EU law in national legal orders, as is made clear in the preamble and in the recent case of Siragusa v. Regione Sicilia, in which it was made clear that the primacy of EU law was the priority. If we are truly leaving the EU, it no longer makes sense for us to be bound by a document that is furthering EU integration.

I appreciate the constructive attitude of all colleagues in attempting to help the Government to improve the Bill, but I gently caution against the risks presented by some of the amendments. The British people voted last year to restore sovereignty to UK courts and return supremacy to our judges, because they trust our legal order. Why do they trust it? They trust it because for centuries, since 1215 and Magna Carta, this country has been the home of civil liberties and human rights and has protected the vulnerable against excesses of power. That is a tradition of which we are proud and which will be protected under this Government.

Family Justice Reform

Suella Braverman Excerpts

Wednesday 15th November 2017 Westminster Hall

[Suella Fernandes (Fareham) (Con)]

I beg to move,

That this House has considered family justice reform.

There are not many more challenging areas where the law intervenes than the safety of vulnerable children and family breakdown. Judgments about such things as whether a child should be removed from their parents’ care or how a separating couple share parenting reflect our values as individuals and as a society. They go to the heart of how we see family life and how we wish our children to be raised. A nation is only as strong as the families that create it. A strong family unit of whatever form is where strong citizens are nurtured. That is why it is vital that the family justice system works as well as possible. I am grateful to be able to call this debate. Since I introduced my ten-minute rule Bill on this subject back in March, I have seen how we need to have a constructive debate on the future of the family justice system. I thank the Minister for being here on behalf of the Government.

Let me say at the outset: there has been significant progress in this field under the Conservative Government. The Children and Families Act 2014 marked a sea change in how our family justice system operated. It introduced a new family court in England and Wales that made it easier for the public to navigate the system and reduced delays. The 2014 Act introduced a new 26-week time limit for care proceedings. New child arrangement orders were enacted with the aim of encouraging parents to focus on a child’s needs, rather than on what they saw as their own rights.

[John Howell (Henley) (Con)]

My hon. Friend is talking passionately about the changes that have been made. Will she accept—I speak as the chairman of the all-party parliamentary group on alternative dispute resolution—that a great contribution has been made by mediation? We should seriously encourage the use of mediation services in this area because they have a positive impact.

[Suella Fernandes]

I thank my hon. Friend for raising mediation. Compulsory family mediation information meetings were one of the measures introduced in the 2014 Act. They have had the benefit of diverting conflict and cases out of the adversarial system.

The Conservatives and the Government should be proud of a record that leaves family justice in a better place than where we found it in 2010. Why did I call this debate? I called it because there is further to go.

[Ian C. Lucas (Wrexham) (Lab)]

I thank the hon. Lady for calling the debate on an important issue, but we have to have a reality check. The Government have withdrawn legal aid from the important areas she has been describing. Mediation has been badly hit by the reforms to which she has referred. We have gone backwards, not forwards. Will she accept that this is a time for reviewing the current situation so that the people who come to my surgeries, who cannot get any help to navigate the complex system, can find help?

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[Suella Fernandes]

As I said, I think there have been improvements since 2010 because of the measures in the 2014 Act, but I called the debate because there is further to go, and I do not deny that at all. I am raising some elements that should be considered in a review or commission led by this Government. That review or commission could cover three main areas: strengthening child wellbeing and families; instilling a fairer divorce regime; and creating a more transparent justice system.

First, on strengthening families and child wellbeing, I have been inundated since March by stories from families from all over England and Wales who have endured our family justice system in the event of a divorce. Months and sometimes years have been spent caught up in a labyrinthine court system and bureaucracy where typically, but not always, the non-resident father has had to fight to see his children at great emotional and financial expense. The sad truth is that many of those being failed by the system are good parents. They want to spend time with their children and be proper dads or mums. They accept that divorce will mean a change in living circumstances and they may not be the main carer, but they are pitted against their former partner who is the resident parent. They can face years of heartache, protracted court proceedings, exorbitant legal fees and diminishing relationships with their children.

[Nigel Huddleston (Mid Worcestershire) (Con)]

I congratulate my hon. Friend on securing this debate. She talks about the disruption caused to families by divorce and other family breakdown circumstances. Does she agree that those situations can extend beyond just parents and their children to grandparents? Does she agree that there is a possibility of looking into changing the law so that grandparents have a right to access their grandchildren, and vice versa?

[Suella Fernandes]

I thank my hon. Friend for raising the issue of extended families. Kinship carers and grandparents in particular can play an essential role in the upbringing of our children, and they too can be cut out of children’s lives because of the obstacles placed in their way through our system, which needs some change.

Many parents in these situations have lost their life savings, their home and, perhaps worst of all, their hope. What price is too much? For those who cannot afford it, the cost can be even worse: no contact and no relationship with their children. In one of the saddest cases I came across, a dad was permitted to send merely a Christmas card every year. In another, a father spent three years and more than £100,000 fighting to see his children eight days a month, rather than the six days originally granted by the court.

Children are entitled to a meaningful relationship with both parents, but the current system enables a parent to be erased from a child’s life. It is not about parental rights; it is about child wellbeing. Children who have a good relationship with both parents are less likely to experience depression, teenage pregnancy and delinquency. Children without a father in their life often struggle to reach their full potential academically, socially or professionally.

[Andrew Bridgen (North West Leicestershire) (Con)]

I thank my hon. Friend for facilitating this important debate. Is she aware of research I have done on the comparative death rates of resident and non-resident parents, which indicates that it is almost twice as likely for a non-resident parent to pass away while their children are small? I indicate that that probably means that it is normally men actually committing suicide because they no longer have contact with their children.

[Suella Fernandes]

It is a tragedy. Those cases are unspeakably sad and a reflection of the need for reform. There is a clear need, if we are to fight the burning injustices in our society, to start with the foundation of our society: families and, more specifically, parents. That change is vital.

My first proposal is to enshrine a rebuttable presumption of shared parenting. In the majority of divorce cases, parents are able to agree on how their children will be cared for, with whom holidays will be spent, how decisions about a child’s life will be made and how the child may spend time with grandparents and other extended family, as my hon. Friend the Member for Mid Worcestershire (Nigel Huddleston) mentioned. However, in many cases—approximately 165,000 in 2016—agreement cannot be reached. In those cases, a judge will determine the contact and residence for the parties, and that is when problems can start. As well as the paramountcy of the welfare of the child as the guiding principle, parental involvement—direct or indirect—is the relevant test in deciding access and residence. I see the former Minister, my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), in his place. He should be applauded for his efforts in campaigning to secure considerable progress in this field and improving the lot of non-resident parents through the 2014 Act.

My point today is that that standard is too low, as it does not enable a meaningful relationship to be fostered between parent and child. A rebuttable presumption in favour of shared parenting would go further and, as a starting point, actively enable more of that vital, meaningful relationship to be fostered between parent and child, in the event of family breakdown. To be clear, I am not talking about equal parenting. A crude, mathematical, 50:50 division of time is not always practical, desired by the parties, or optimal for the child. Rather, legislation that emphasises the importance of both parents in a child’s life is needed—other than in cases of violence or where the child is not safe, obviously.

Shared parenting is commonplace throughout the world, and operates without difficulty in Sweden, Canada and the US states of Florida and Iowa. Alternatively, Dr Hamish Cameron has suggested that there could be a presumption of the continuity of the previous arrangements. If both parents used to take the child to school, that should be the starting point. If both parents provided equal care, they should continue with that arrangement. Such examples would improve on the parental involvement—direct or indirect—position that we have now. If we are going to continue to tell fathers that they have equal responsibilities, we also need to give them equal opportunities to carry them out.

Secondly, child arrangement orders, which determine the contact and residence of children upon divorce, need to be better enforced. The current enforcement scheme sits alongside the general contempt powers of courts. If satisfied beyond reasonable doubt, courts can refer the parties to a separated parents information programme, vary or make orders for compensation, or commit to prison—remedies that are so rarely applied, it is easy to forget that they actually exist.

Although the majority of orders are complied with, too often they are breached with impunity—usually by the resident parent, due to the reluctance of courts to penalise non-compliance effectively. In 2015, of the 4,654 enforcement applications made to court, a mere 1.2% were successful. I question whether the criminal standard of proof is the right one, when family courts make other decisions, including placement in care or change of residency, on the lower threshold of the balance of probability.

[Tim Loughton (East Worthing and Shoreham) (Con)]

I pay tribute to my hon. Friend; this is a really important subject that does not get sufficient airing in this place. She is absolutely right: we can give a child the very best start by maximising the relationship with both parents wherever possible. Despite the important reforms that came in with the 2014 Act—albeit a slightly more diluted version of shared parenting presumption than some of us wanted in the legislation—in too many cases the enforcement remains weak, and parental alienation syndrome is doing serious damage to children as a result. Does she agree that the nuclear option of a change of residency needs to be used in those extreme cases, to make the point that a child is not a pawn between two warring parents? The child’s welfare is paramount, and that must be reflected in the court, and in the involvement of both parents.

[Suella Fernandes]

I could not have put the point better myself. It goes to the nub of the issue: unfortunately, the courts are too slow to act when those orders are being breached, with the effect that they are meaningless and not worth the paper they are written on. I agree that a tougher approach is needed: one that includes the option of transfer of residency in appropriate and reasonable circumstances; one where community service is applied realistically and in practice, not theoretically; and one where confiscation of driving licenses or passports is considered. Furthermore, the costs of making those applications should be borne by the parent in breach. Currently, there is often no order when it comes to costs. Shared parenting and robust enforcement must be at the heart of reform if we are to strengthen families and child wellbeing.

The second main area ripe for reform is our antiquated divorce law. It is time for no-fault divorce. As the recent Court of Appeal case of Owens showed, not all marriages end because of fault. However, we have a law that promotes the farce of allocating blame, setting parties on a needlessly confrontational path that only fuels animosity and costs. In 2015, my hon. Friend the Member for South Norfolk (Mr Bacon) introduced a private Member’s Bill proposing no-fault divorce, and has since been an energetic campaigner on the subject. The principle is supported by Baroness Hale, Sir Paul Coleridge of the Marriage Foundation, the solicitors Vardags, and the Family Law Bar Association.

There has always been sensitivity around the notion of undermining marriage, but we need to fundamentally rethink that position. The current system forces couples to find blame, creating acrimony where it may not have existed. Divorce is a fact of life—at least for the 120,000 couples that went through it last year. It is not always about fault, but because the parties are obliged to justify fault, they often just make it up, which creates hostility at the outset. By encouraging parties to start their divorce with accusations of misconduct, the current process pushes them towards falling out, which can often affect the children who are caught up in the process. Fault-based divorce can also exacerbate domestic abuse for those women in abusive or violent relationships, because the partner whom they are trying to divorce can refuse their petition and drag it out for much longer than is safe.

Fault-based divorce increases the cost for both the state and the litigants. The need for judicial scrutiny of those 120,00 applicants per year places a significant burden on the courts; a streamlined process would save time and money. As Baroness Hale has made clear, this is not about quickie divorces, but about removing the fallacy of fault. A 12-month cooling-off period would enable that balance to be struck.

The problem was starkly highlighted by the Court of Appeal in the recent case of Owens, now on appeal to the Supreme Court, in which the petitioner—married for 27 years—was refused a divorce as she simply could not prove unreasonable behaviour, adultery or desertion. Sir James Munby, the president of the family division, described the current law as

“based on hypocrisy and lack of intellectual honesty.”

The Court was bound to uphold the appeal and refuse the divorce, and held that it was down to Parliament to establish no-fault divorce. Scotland is an example of where it has worked well, not causing a long-term rise in divorce rates as feared. Divorce is painful enough, but the current law only makes things worse.

As part of reforming divorce law, Parliament should also establish the enforceability of pre-nuptial agreements. If we are to support marriage, we need to accept that people are getting married later in life, with assets earned before and during their union. If the parties agree, those assets should be protected, not put at risk. A review should look into that, as well as into reform of the Matrimonial Causes Act 1973 and financial remedies and maintenance, which are rooted in a bygone era. That framework dates back to a time when women were entirely financially dependent on their husbands, but today many women are able to support themselves, so divorce should not mean an automatic entitlement to lifetime support from an ex-husband. Scotland and North America limit payments. A commission or review should make recommendations on how to strike a better balance, so that England can shed its reputation as the divorce capital of the world.

Cohabiting couples should be afforded protection on separation. Cohabiting couples with children are the fastest-growing type of family in the UK. Between 1996 and 2016, the number of couples in that position increased from 1.5 million to 3.3 million, yet they have no rights in the event of a split. An inquiry looking into what basic protections are justified would be valuable.

Lastly, transparency in our family courts is much needed and I urge the Minister to look into that. Reform of the way in which the family courts operate in public law needs wholesale review. Far too many children are taken into care on the basis of wholly inadequate and poorly argued reasons, according to Sir James Munby, president of the family division. Only the glare of publicity will enable that to stop, so we need to remove the cloak of secrecy and open up the family courts.

Shared parenting, enforcement and no-fault divorce must be the bedrock of reform, but a broader review that covers the other points I have set out today is also required if we are to make progress. It is an opportunity that Members from both sides of the House, working alongside the Government, must seize, if we are to stop parents and, most importantly, children from suffering unnecessary emotional trauma.

I know that this Government’s commitment to social justice is unrivalled. The stories of injustice and hopelessness are too many to ignore. I hope that the Government and this House will begin the important work of making our family justice system fit for the 21st century.

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[Suella Fernandes]

I have nothing but gratitude for all hon. Members who have contributed to this very constructive and wide-ranging debate from all parts of the country. Only Wales was not really represented.

[Ian C. Lucas]

Yes it was.

[Suella Fernandes]

Yes—my apologies. That reflects the widespread support for the subject of the debate. I am grateful for the response from the Minister and I am hopeful that we will continue the work to ensure that we get justice for families, strengthen child wellbeing and provide the context for equitable resolution in this difficult area.

Question put and agreed to.

Resolved,

That this House has considered family justice reform

Oral Answers to Questions

Suella Braverman Excerpts

Tuesday 31st October 2017 Commons Chamber

[Mr Lidington]

Serious and sensitive though that matter undoubtedly is, it falls in large part to the Department of Health, but either myself or the Minister of State would be happy to discuss it further with the hon. Lady.

[Suella Fernandes (Fareham) (Con)]

Following my ten-minute rule Bill in March calling for the reform of family law, including a robust enforcement of child arrangements orders, opening up the family courts in care proceedings and updating our anachronistic divorce laws, what progress have the Government made on their family law review, which was announced in the summer?

[Dominic Raab]

I thank my hon. Friend for her proposals and the thought that she has put into them. The time taken to conclude public family law cases has nearly halved since 2011. We are still working through very real issues with the relevant Departments, including the Department for Education. On private law, we are committed to facilitating the settlement of far more family disputes so that we avoid families, vulnerable witnesses and sometimes victims having to go through the trauma of court proceedings.

European Union (Withdrawal) Bill

Suella Braverman Excerpts

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

[Suella Fernandes (Fareham) (Con)]

Despite some of the benefits that the UK has derived from its membership of the EU, overall, and overwhelmingly, our membership has had a corrosive effect on democracy. For decades, the political class in the UK has lacked the ability and the confidence to be bold for Britain. It has been emasculated by EU primacy. Clause 1, which repeals the European Communities Act, and clause 5, which brings to an end the primacy of EU law, constitute a welcome first step towards restoring parliamentary democracy to the United Kingdom.

Since the ECJ case of Costa v. ENEL in 1964 and the Factortame cases in the 1990s, our politicians and our courts have been robbed of their sovereignty, and of the freedom and independence to challenge, amend or override EU law and judgments, leading to an inherent insecurity in British politics. This has been partly fuelled by a sacrosanct belief in experts, a disproportionate desire for media headlines and an emphasis—an unjustified emphasis—on political correctness and polls. Moreover, it has been driven by the ultimate power grab, which is the one by the unaccountable and illegitimate EU. Whether in trade, immigration, tax policy, or agriculture and fisheries, the power to determine the direction of this country has been stolen from our Parliament by the EU.

That sums up the EU: its inherent lack of legitimacy and accountability has diminished the potency of UK politics, leaving us with an exaggerated sense of powerlessness, and a dulling of politics through a spiral of technocratic and administrative decisions. Whether we talk about trade, immigration or our courts, the EU has killed off innovation in politics. Through this Brexit Bill, we have a chance to reignite the ability to inspire and enthral through politics, law and justice, and that is why I am delighted to speak in its support.

The Bill is an essential piece of legislation and an integral part of the machinery that will make Brexit a reality and ensure that this Parliament rightly and faithfully honours the democratic instruction sent us by the British people in last year’s referendum. The reason why it is a prerequisite of Brexit and fundamental for this historic chapter in our country’s history is that it will achieve the central objective of those who voted leave in the EU referendum and of those who, although they did not support it, have come to accept the vote for taking back control of our laws. The Bill’s objective is to transcribe EU law in UK law, so that this Parliament—a beacon of democracy emulated around the world—will regain its power over whether and how such laws should apply.

[Stephen Gethins]

Will the hon. Lady tell us in what way the House of Lords is more accountable to the democratic populace than the European institutions?

[Suella Fernandes]

Through the Bill, our UK Parliament will regain authority over whether and how EU law will apply, and that is what honouring the result of the EU referendum is all about.

This Bill is necessary to ensure an orderly Brexit. The alternative does not bear thinking about. It is chaos, uncertainty and the abrupt evaporation of laws overnight, leaving us with nothing but a legal vacuum on the day after we have left the EU. That is what those who oppose the Bill are asking for, which is why I urge Labour Members to reconsider their position in opposition to the Bill and to vote for the pragmatism and necessity that it encapsulates.

A vote against the Bill is a vote in breach of voters’ trust and a vote for chaos for two reasons. First, the fact that the Bill has the effect of placing all current EU law into UK law is eminently sensible. Many of the laws will work in UK law without amendment, but some will need to be amended. There has been much criticism of the Henry VIII powers, but it is exaggerated and unjustified. The Hansard Society has calculated that of the 23 Government Bills in the 2015-16 parliamentary Session, 16 contained a total of 96 Henry VIII powers to amend or repeal primary legislation. Of those powers, 65 were included in Bills when they were introduced, and a further 31 were added to Bills during their progress through Parliament. There is therefore nothing alien or sinister about such powers, and to suggest otherwise is unjustified and disproportionate.

The Opposition have proposed no alternative. If there were individual votes to amend the EU laws, that would mean an individual vote on all 20,000 EU laws. If we conducted the process in that way, it would take over 200 days of parliamentary time, sitting 24 hours a day, seven days a week. An alternative would be to have a debate on every page of the law, but that would mean debates on over 600,000 pages of law. That leaves us with the only option of abandoning all EU law, which, as I have said, would mean legal chaos.

Secondly, the Bill is important because it repeals the European Communities Act 1972, which gives force to judgments from the European Court of Justice and regulations without any further need for scrutiny by Parliament. That is the biggest power grab to which this country has been subject. Politics should be less about mechanistic procedure and more about the big vision; less about systematic management and more about creating on a grand scale with radical thinking, setting a blueprint for society. Brexit is a birth and a chance for a new beginning, not a death. Now there is a chance for those who campaigned to leave the EU and those who see the opportunity ahead, even if they did not campaign for it, to unite in painting that bold and bright vision of the future of our country and of the world. For those who cannot or will not see that, the politics of yesterday may be good enough for them, but not for me.

Oral Answers to Questions

Suella Braverman Excerpts

Tuesday 25th April 2017 Commons Chamber

[Sir Oliver Heald]

The Government are committed to supporting victims of rape and domestic abuse. This approach is crucial to protect women who face very difficult circumstances, and that is what the Government have been doing through the reforms to which the hon. and learned Lady refers. As part of these reforms, we have made sure that victims are able to use third sector professionals to endorse their claim while they receive support to help them to cope and recover. No Government have a better record on helping victims.

[Suella Fernandes (Fareham) (Con)]

19. What steps the Government are taking to ensure effective enforcement of child arrangement orders.

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

The family court has powers to address a breach if someone has been wilfully obstructive. When a child’s welfare requires it, the court can transfer the child’s residence to the other party. This Government are keen that there should be effective action, and a Green Paper on family justice has already been announced.

[Suella Fernandes]

Unfortunately, enforcement is a serious problem in the courts because of the criminal threshold and a lack of an effective penalty. In some of the worst cases, the non-resident parent—usually but not always the father—can be cut out of the child’s life. Does my right hon. and learned Friend agree that this issue needs to be addressed if we are to see equity in the family justice system?

[Sir Oliver Heald]

It is right that there should be a clear system to establish the facts about a breach, and it should then be possible to deal with the breach effectively. Of course I am unable to make any announcement today but, as I have indicated to my hon. Friend, a Green Paper on family justice has been announced for later in the year, and she and I have already had the opportunity to discuss some of her ideas.

--- Later in debate ---

[Elizabeth Truss]

What we are doing about it is investing £1 billion in modernising our courts, bringing more cases online and improving the physical facilities, including all aspects of the way in which our courts operate. I launched a joint statement with the judiciary late last year about precisely that.

[Suella Fernandes (Fareham) (Con)]

T8. I recently visited Dickson House, an approved premises in Fareham that provides support and accommodation to ex-offenders as they transition to life outside prison. Will the Minister join me in paying tribute to the team at Dickson House, and explain what more support is available to ensure that ex-offenders secure housing so that they do not fall into homelessness and, thereafter, criminality?

[Mr Gyimah]

I pay tribute to the work done by the staff at Dickson House and all who work in approved premises around the country—they do a great job. Accommodating ex-offenders when they leave approved premises is an important issue. We are working with the Department for Communities and Local Government and the Local Government Association on ways in which we can improve this, including by improving statutory guidance.

Prisons and Courts Bill (First sitting)

Suella Braverman Excerpts

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

[Liz Saville Roberts]

Mr Simpson, what do you think?

Joe Simpson: On the demand side, the Prison Service has been very successful. When I joined, the drug of choice was cannabis; then, when they started mandatory drug testing, it went from cannabis to heroin and cocaine, for the simple reason that they stay in the body a lot less than cannabis. But we just punish prisoners; if they get a positive MDT, they are punished and that is the end of it. We are not doing anything to say to them, “Why are you taking it?” Why don’t we turn around and start educating them about the drug issue, rather than just punishing them? As long as we punish them, nothing is going to change, because they still want that drug; they will still want it inside.

As long as people are coming into prison and bringing it in—the supply side of it—they do go hand in hand. We have to stop the supply but we also have to start to reduce the demand as well, because if we reduce the demand, the supply will stop coming in because people will no longer want it.

How do we do that? When I was at Holme House we had a successful drug treatment wing there. We turned it on its head: it was run by the prisoners. They looked after everything; they made sure everything was clean and took over the duties of the prison officer. The prison officer was still there; we were still there supervising it and it worked. Then all of sudden, because we ran out of money, it went. We reduced the demand and then, once the money stopped, the demand went back up, because there was nothing there to get prisoners to take charge of their lives in prison. That is what is missing.

Rachel O'Brien: It is an interesting question, in terms of responsibility. I would raise a concern about that being just on the governor, not going any wider. It is interesting to ask about the responsibility to reduce demand and how you might show that. The other parts of the Bill that are important concern education, employment and health commissioning, because ultimately if we do not have more people working, more people getting the treatment they need, the supply will respond to demand. For me, a key question is whether that commissioning going to be more local, more sensitive and more productive. Many prisoners will tell you that they are either in their cell most of the time or they are doing another level 1 catering when they have done four as they have moved around the system. The intention, not so much as reflected in the Bill, but in the education strategy and so on, is to actually look at more progression for people.

Again, it comes back to the fact that a prisoner will tell you exactly how they want to progress, but what if that is not available? I really worry that while what is in the Bill looks like a decentralisation of commissioning, I am not clear that that is actually what is going to happen.

[Suella Fernandes (Fareham) (Con)]

Q I refer the Committee to my entry in the Register of Members’ Financial Interests. I am still in receipt of fees from the Treasury Solicitor for providing legal services to the Ministry of Justice and the Parole Board.

Nigel, I want to follow up on your point about the statutory purposes listed in proposed new section A1. There are four purposes set out and you said that an endless list would be unhelpful for professionals and for the inspectorate. Can you say a bit more about why you think that the current drafting hits the nail on the head and strikes the right balance?

Nigel Newcomen: I did not quite say that the current drafting hits the nail on the head. I said that an endless list would, I think, be unhelpful; I think Martin made the same point. If you are going to have a set of overarching purposes, they need to be relatively discrete, something managers can focus on and, in Rachel’s words, could run through a stick of rock. If it is an endless list, that is a very big piece of rock. This needs to be a means of gaining clarity for the organisation and the institution.

I said in passing, I think, that the word “decency”, for example, was missing. It may be that there are bits of drafting that may be attended to as the Bill goes through. I think a relatively discrete statement of purpose and set of aims is useful. All experience of business management and organisational institutional change is predicated on having a relatively limited set of outcomes that you are seeking to achieve. I think these are pretty good and discrete statements. They could probably be improved, but I do not think I would like to see the list get that much longer.

[Suella Fernandes]

Q My second point I would like to raise with all members of the panel relates to health and mental health provision in the Bill and also in the White Paper. In those, there is considerable detail on how governors can work together with the local clinical commissioning group or other health providers to assess the health needs of prisoners, co-commission services and assess quality of performance, instilling a bit more responsibility and flexibility in the system to safeguard health and mental health concerns. I would like the panel’s views on the mental health and health provisions.

Joe Simpson: When you are bound to outside agencies, especially in prisons, they are not there 24/7. The only people who are there 24/7 are prison officers and prison staff. One thing that we are going on from mental health is also social care in prisons. We have a lot of older prisoners who need more social care. Between the hours of 7 o’clock at night until 7 o’clock the next morning, they do not have access to that, and we do not have access to that as prison staff. We have no training whatever in order to assist prisoners who have those needs.

Mental health and health wellbeing should start on reception at the prison, when the prison officer brings the prisoner into prison, goes through the reception process and then passes them on to our colleagues for the mental health check. From that should come a plan of care, but that is not there, for the simple reason of time—“Let’s get them through because staff need to get off,” or, “We need to do this; we need to do that.” It is constant pressure on the regime and having the staffing available to do that.

If you are dependent on an outside agency that has its own staffing problems, it is not going to be done. That is the frustrating part from our members’ side. They identify a problem and nothing seems to be done for two or three days because we cannot get that expertise in. Why not utilise the person who is already there—the prison officer—and train them to do those duties, so that we can give better mental health care and increase wellbeing?

[Holly Lynch (Halifax) (Lab)]

Q May I return to the issue of prison officer safety? I have tabled some new clauses that I hope will be helpful in that regard. On Second Reading, we touched on the issue of a prison officer being assaulted in prison by a prisoner. Is that referred to the police, followed up by the Crown Prosecution Service and taken to court, or is it dealt with internally within the prison? What is your experience of the decision making around that process, and what would be the preference of the Prison Officers Association for dealing with those types of incidents?

Joe Simpson: Our view is that somebody who assaults our members should be punished. As for the question of who does that, we are not really bothered. Our experience, and my members’ experience, of the police and CPS is actually getting a policeman in to do the investigation. More often than not, what comes back from the CPS is that it is not in the public interest, because that person is serving a sentence and in prison anyway. That demoralises our members. They feel as if they go to work and they are just punchbags. There was a big campaign by the trade union to try to change people’s thinking on that, because we work behind a wall—people do not look in and we do not look out. We would like our members to be protected by the law and to be taken seriously when they are assaulted at work.

Some incidents are serious physical assaults, but you also have to look at the mental aspects, especially in relation to spitting and biting. Let us say that a prison officer is bitten. We do not know the prisoner’s history. We do not know whether they have any blood-borne disease or anything like that. The officer then has to spend six months on antiviral treatment and everything like that, and along with that goes the mental anguish, not just for the member of staff, but for their family, because they cannot interact properly with their family for six months. That leads to its own problems: high rates of divorce, cases of alcoholism and people just not wanting to come to work. That develops into mental health problems. While they are in the service, they are looked after, but once they are dismissed by the service, all that assistance stops, because the employer turns round and says, “Well, we’re no longer responsible for that care.” Sometimes we are putting really poorly and ill prison officers back into society with no assistance whatever, because of something that has happened in the course of their work.

One of the most disgusting things ever is potting. It is especially the female members of staff who are targeted. A prisoner or prisoners will fill a bucket or whatever with excrement and urine, wait for the officer and then tip it over them. We are seeing an increase in that, because prisoners seem to think that it is more acceptable than hitting a member of staff or hitting a female member of staff. They still see that as a bit of a taboo subject, but that is starting to break down. They are not just targeting male staff; they are now targeting female staff as well, especially with potting, which is absolutely disgusting.