PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES

Public Bill Committee

PRISONS AND COURTS BILL

First Sitting

Tuesday 28 March 2017

(Morning)

CONTENTS Programme motion agreed to. Written evidence (Reporting to the House) motion agreed to. Motion to sit in private agreed to. Examination of witnesses. Adjourned till this day at Two o’clock.

PBC (Bill 145) 2016 - 2017 No proofs can be supplied. Corrections that Members suggest for the final version of the report should be clearly marked in a copy of the report—not telephoned—and must be received in the Editor’s Room, House of Commons,

not later than

Saturday 1 April 2017

© Parliamentary Copyright House of Commons 2017 This publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 1 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 2

The Committee consisted of the following Members:

Chairs: MR GRAHAM BRADY,†GRAHAM STRINGER

Arkless, Richard (Dumfries and Galloway) (SNP) † Qureshi, Yasmin (Bolton South East) (Lab) † Burgon, Richard (Leeds East) (Lab) † Saville Roberts, Liz (Dwyfor Meirionnydd) (PC) † Fernandes, Suella (Fareham) (Con) † Smith, Nick (Blaenau Gwent) (Lab) † Gyimah, Mr Sam (Parliamentary Under-Secretary † Swayne, Sir Desmond (New Forest West) (Con) of State for Justice) † Thomas-Symonds, Nick (Torfaen) (Lab) † Heald, Sir Oliver (Minister for Courts and Justice) † Tomlinson, Michael (Mid Dorset and North Poole) (Con) † Jenrick, Robert (Newark) (Con) † Tracey, Craig (North Warwickshire) (Con) † Lynch, Holly (Halifax) (Lab) † Warman, Matt (Boston and Skegness) (Con) McGinn, Conor (St Helens North) (Lab) † Opperman, Guy (Lord Commissioner of Her Katy Stout, Clementine Brown Committee Clerks Majesty’s Treasury) † Philp, Chris (Croydon South) (Con) † attended the Committee

Witnesses

Joe Simpson, Assistant General Secretary, Prison Officers Association

Martin Lomas, Deputy HM Chief Inspector of Prisons, HM Inspectorate of Prisons

Nigel Newcomen CBE, Prisons and Probation Ombudsman

Rachel O’Brien, Director of Transitions Spaces, Royal Society for the encouragement of Arts, Manufactures and Commerce (RSA) 3 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 4

The Chair: The deadline for amendments to be considered Public Bill Committee at the first line-by-line sitting of the Committee was the rise of House on Friday. The next deadline will be 4.30 pm on Tuesday 11 April for the Committee’s Tuesday 28 March 2017 meeting on Tuesday 18 April, after Easter. The Clerks will circulate a note about tabling arrangements during the recess. (Morning) Resolved, That, subject to the discretion of the Chair, any written evidence [GRAHAM STRINGER in the Chair] received by the Committee shall be reported to the House for publication.—(Sir Oliver Heald.) Prisons and Courts Bill The Chair: Copies of written evidence that the Committee receives will be made available in the Committee Room. 9.25 am Resolved, The Chair: Before we begin, there are a few preliminary That, at this and any subsequent meeting at which oral evidence announcements. May we switch off electronic devices, is to be heard, the Committee shall sit in private until the or put them on to silent? Tea and coffee are not allowed witnesses are admitted.—(Sir Oliver Heald.) during sittings. We will first consider the programme motion printed 9.27 am on the amendment paper. We will then consider a The Committee deliberated in private. motion to enable the reporting of written evidence for publication, followed by a motion to allow us to deliberate in private about our questions before the oral evidence Examination of Witnesses sessions. In view of the time available, I hope that we Joe Simpson, Martin Lomas, Nigel Newcomen and can take those matters formally, without debate. Rachel O’Brien gave evidence. Ordered, That— 9.29 am (1) the Committee shall (in addition to its first meeting at The Chair: We will now hear oral evidence from the 9.25 am on Tuesday 28 March) meet— Prison Officers Association, Her Majesty’s inspectorate (a) at 2.00 pm on Tuesday 28 March; of prisons, the prisons and probation ombudsman and (b) at 9.25 am and 2.00 pm on Wednesday 29 March; the Royal Society for the Encouragement of Arts, (c) at 4.30 pm and 7.30 pm on Tuesday 18 April; Manufactures and Commerce. Before I invite the witnesses (d) at 11.30 am and 2.00 pm on Thursday 20 April; to introduce themselves, I remind the Committee that (e) at 9.25 am and 2.00 pm on Tuesday 25 April; questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the (f) at 11.30 am and 2.00 pm on Thursday 27 April; programme motion that the Committee has agreed to: (2) the Committee shall hear oral evidence on Tuesday this session finishes at 11 o’clock. 28 March in accordance with the following Table: TABLE Liz Saville Roberts (Dwyfor Meirionnydd) (PC): I Time Witness take this opportunity to declare an interest as the chair Until no later than 11.00 am Prison Officers Association; Her of the cross-party justice unions and family courts Majesty’s Inspectorate of Prisons; parliamentary group. Prisons & Probation Ombudsman; RoyalSocietyfortheEncouragement of Arts, Manufactures and The Chair: That is noted, thank you. Will the witnesses Commerce please introduce themselves for the record? Until no later than 3.15 pm LegalAidPractitionersAssociation; Joe Simpson: Joe Simpson, assistant general secretary Professor Richard Susskind OBE; of the Prison Officers Association. The Law Society; Women’s Aid; Transform Justice Nigel Newcomen: I am Nigel Newcomen, the prisons Until no later than 4.30 pm Association of British Insurers; and probation ombudsman. Association of Personal Injury Rachel O’Brien: Rachel O’Brien. I lead the work of Lawyers; Aviva the Royal Society for the Encouragement of Arts, (3) proceedings on consideration of the Bill in Committee shall Manufactures and Commerce on prisons. be taken in the following order: Clauses 1 to 4; Schedule 1; Clauses 5 to 21; Schedule 2; Clauses 22 to 30; Schedule 3; Martin Lomas: And Martin Lomas. I am the deputy Clauses 31 and 32; Schedule 4; Clause 33; Schedule 5; Clause 34; chief inspector of prisons. Schedule 6; Clauses 35 and 36; Schedule 7; Clause 37; Schedule 8; Clauses 38 to 44; Schedule 9; Clauses 45 to 49; Schedule 10; Q1 The Parliamentary Under-Secretary of State for Clause 50; Schedule 11; Clause 51; Schedule 12; Clauses 52 to 54; Schedule 13; Clause 55; Schedule 14; Clause 56; Schedule 15; Justice (Mr Sam Gyimah): Good morning, and thank Clauses 57 to 72; new Clauses; new Schedules; remaining proceedings you all for coming. I would like to start with Joe, please, on the Bill; on staffing and recruitment. I would like to get your (4) the proceedings shall (so far as not previously concluded) view of how the offender management model, which be brought to a conclusion at 5.00pm on Thursday 27 April. has been announced and will give each prison officer a —(Sir Oliver Heald.) workload of six, could help improve safety in prisons. 5 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 6

Joe Simpson: First and foremost, you have got to recruit, Q6 Mr Gyimah: If I may come in on the staffing Minister. At the moment—I make no apology about point, are you aware that, for example, we have more it—the remuneration package for a prison officer is not people training to be prison officers than we have ever meeting the needs of the National Offender Management had before, at approximately 700, and that we are on Service. Will it help? Of course—more prison officers track, at the end of March, to meet the commitment will always help. Pre-2012, we had 7,000 more prison announced in October to recruit 400 new officers in the officers. We had fewer deaths, fewer suicides, less violence 10 most challenging jails? and less drugs, then all of a sudden 7,000 go and we are Joe Simpson: Yes, I am aware of that, Minister. in the situation we are in. But, yes, it would help. However, the question will be how long we have them for. Once they come into prison and actually see the Q2 Mr Gyimah: I guess the question I was driving at reality of where they are going to be working, a lot of is, if you were able to get to the situation where you had staff are not getting past the probation point, which the 1:6, could you improve safety? You are saying that, is 12 months, because the training does not get them yes, that could help improve safety. ready for working in a prison. It is a challenging In terms of the other point that you made about environment, especially now. remuneration, of course I agree that remuneration is important in this context. Do you see that what the Ministry of Justice is doing about additional allowances— Mr Gyimah: I have met a number of our new recruits there are obviously ongoing negotiations with the POA at Newbold Revel. I think they are going into it with on pay and so on—could also help with recruitment their eyes wide open and a lot of them are proud to be and retention? working in a uniformed service with the opportunity to turn lives around. In terms of retention, I think it is Joe Simpson: Yes. If we get the right deal, yes, of down to everyone in the Prison Service to make sure course that will always help. I hope we do. that new recruits settle in well—the governor, prison officers on the wing—so that they can actually contribute Q3 Yasmin Qureshi (Bolton South East) (Lab): Thank productively. you very much for coming to the session. Good morning. Can I ask you about what measures are not in the Bill? I want to explore that with you. In the nine months since Q7 Yasmin Qureshi: Ms O’Brien, you have said that this Bill was promised, we have seen major riots in to have proper rehabilitation we need to return frontline prisons, an increase in violence and a continued fall in staffing to 2010 levels. staff numbers. Do you think this Bill in any way addresses Rachel O’Brien: We have not done that. I welcome those issues? the measures that have been taken, but we have not Joe Simpson: In the long term, it will; in the short done that and I do not think for one minute that we do term, no, because we are not seeing any difference. To not have an existing staff problem. Even with what we get the 2,500 prison officers in post, you are going to have, it is going to take a long time for those people to have to recruit 8,000. As quickly as the Prison Service is come through. I have also met fantastic new officers bringing them in, they are leaving. It is not just new who want to make a difference and are struggling to do starters—you are losing experienced staff as well. They so. One thing we have to bear in mind is that the new no longer want to work for the Prison Service because way of working means stopping doing some other stuff, of the violence, because of what is happening in our and that is going to take time to flow through. prisons and because of the lack of support. I also think, though, that there is a deeper need to look at the workforce capabilities. For example, we Q4 Yasmin Qureshi: Does anybody else want to add know that mental health is a major issue within prisons, any comments? and most officers do not feel prepared to give that kind Rachel O’Brien: For a long time, there has been a of support; I am not talking about detailed intervention discussion about steady state being needed before you but just being aware of the key issues that they are going can look at rehabilitation seriously. My view is that you to face, day in and day out. The race is between really have to do both. I think the Bill does not say that much, thinking about what that workforce looks like at a time but what it does say is potentially profound. I agree that when most people turn on the telly and see things that it is not just about recruiting people and remuneration. may not encourage them to join the service. I have met It is about saying, “What kind of people do we need now some fantastic people; the key is to keep them, to in this new world?”The duty implies significant differences, develop them and allow them to progress. and I think there is a race going on between trying to get to that point of steady state and looking at the longer-term picture. I agree with much of what is in the Q8 Michael Tomlinson (Mid Dorset and North Poole) Bill. (Con): I do not think I have anything to declare, but for the avoidance of doubt I am a former practising barrister— Q5 Yasmin Qureshi: Mr Lomas? non-practising at the moment. Joe Simpson, what are Martin Lomas: The Bill addresses a number of your views on the further professionalisation of the operational matters—certainly relating to telephones Prison Service in general, and then, specifically, what and drugs—that we think are very important, but its are your views on the new graduate scheme, the Unlocked main emphasis is on the purpose of imprisonment and scheme, that I think is starting this September? scrutiny, so obviously that will be a medium to long-term Joe Simpson: I joined the Prison Service in 1987 and I improvement. We welcome that. Some of the issues you have seen a lot of different things happen within the raised are about practical management and operational prison system, such as social work in prisons. We have matters,which can be dealt with under current arrangements seen the fast-track scheme before; it has taken prison and structures. officers right up to governor level—in fact, right up to 7 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 8 second in command of the Prison Service. They are all positions across the estate, where they will be able to well and good, but to make prisons safe we have to give work at band 4 level in such jobs as self-harm prevention prison officers more training than they are being given— or mentoring, earning up to £30,000 a year. How could mental health training, more suicide awareness, and that help retain senior staff and professionalise the more intervention with prisoners. Most of all, we need workforce? prison officers on the landing for what we call “dynamic Joe Simpson: I used to do that as a prison officer; I security”—that is, they can see us and we can see them. did not need promotion for that. It was part of my role We can keep an eye on them and keep them safe. When and what I was paid for, but the service has long they can see us, they feel safe. depended on prison officers and prison staff volunteering So we welcome the professionalisation of the prison to do that extra work with no pay and no pay rise. Some officer and we are ready to talk to whoever wants to talk 70% of prison staff have not had a decent pay rise in to us about professionalisation of our members and all five years. That is when you get problems in the Prison prison staff. Yes, the graduate scheme will take people Service. They feel forgotten and as though they do not from the shop floor into higher management, if they count. With the 2,000, why not train the rest of them in want to go there; sometimes, though, in my experience, that and make the Prison Service a truly professional some of our managers forget where they have come service? from and what it is like to work on the shop floor. But we welcome anything that will professionalise our prison Q12 Liz Saville Roberts: I think I am correct in saying staff in making prisons safe. that the level of turnover among prison officers is something like 12%. Q9 Michael Tomlinson: Thank you. I recently had the Joe Simpson: Yes. privilege of visiting HMP Wandsworth. They explained the extension of the training that was going on there. Liz Saville Roberts: Could you tell us something Presumably, again that is something you would welcome. about the impact of that degree of change? The underlying I am assuming that you would welcome the extended impact is that their salary is for ever starting at the training period for new recruits as well, given what you lower level. Also, there is now regional variation in have said. salaries. What is the impact of that—I have visited Joe Simpson: We would like to see a much longer HMP Berwyn and I will be going to HMP Liverpool training programme for new entrant prison officers, next week—on recruiting outside of south-east England? because what can you teach a prison officer in 10 weeks? Joe Simpson: In areas with high unemployment, you What about all the other things we do? A prison officer will get people wanting to be prison officers because it is in reality is an untrained drug counsellor and marriage paid work and they will want to be in work. The high guidance counsellor. We are everything rolled into one, turnover is not just down to salary; it is also about when with no training. people come in and see the reality of prison life. It is all The only thing that you have got is experience, and right talking about when you go to the school; I attended you gain that experience through working in the system Newbold Revel and went straight to HMP Strangeways, and in life. When you are recruiting prison staff who are and that was a big eye-opener for me. 18 years old, it makes it more difficult for the more In fact, when the door closed behind me for the first experienced staff to guide them in the way it is. When time, the hairs on the back of my neck stood up. I you finish your training, you are supposed to get a nearly put my keys in and left—I didn’t. The high levels two-week induction into the prison to get you used to of turnover are for the simple reason that prison officers the way it works, but that never happens. no longer feel safe in our prisons. Why would you want to come to work and earn £21,000 to be spat at, assaulted, have excrement and urine thrown over you, and be Q10 Michael Tomlinson: That brings me to my final physically and verbally abused? No other profession question; you have neatly brought me round to would put up with that. rehabilitation. You mentioned marriage guidance counselling and so on. What further role do you think there could be for prison officers not only in relation to Q13 Liz Saville Roberts: Is the training perhaps not rehabilitation in general, but in relation to such things preparing new recruits? Would it be possible to adapt as education? the training to prepare new recruits better for the reality Joe Simpson: On education, the POA is involved with of prison work? Toe By Toe, which is where we get other prisoners to Joe Simpson: I think you could get a training programme teach prisoners to read and write. We are heavily involved that will get them ready for prison life and for working in that. I think we must be the only profession that in prisons, but they also have to go into prisons and wants to put itself out of a job, because we want work there. When I first started, I went into Durham rehabilitation, but with the levels of overcrowding we prison for three weeks. I came back, did the rest of my have at the moment, you are not going to achieve it. It training and then went into Strangeways. When I was at will take a long while to start the rehabilitation that the Strangeways, I had what I called a “buddy officer”, and Government want for the simple reason that we have to I worked with him for 12 months. If I had a problem make prisons a safe place to work and live in. working there, I went to him to ask a question and he answered it. He was with me all the time. That no longer happens: because of the pressure on getting prison Q11 Mr Gyimah: Mr Simpson, I would like you to officers into prisons and getting a regime going comment on professionalisation. We are consulting with in prisons, that is no longer there. I think that would the trade unions on the creation of 2,000 new senior help. 9 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 10

Q14 Liz Saville Roberts: May I ask one general them—are independent and separate. When we were question to everyone on the panel who might be able to formulating our expectations, we saw resettlement, as respond? The Bill is proposing the purpose of prisons. we term it, as fundamental, one of four interconnected What would you feel about including health, substance features of a healthy prison: safety,respect, activity—work, abuse and addictions while people are in prisons as a in other words—and resettlement. So yes. possible fundamental purpose? Rachel O’Brien: I agree. Out there, there is a need to Rachel O’Brien: Two of the purposes—if you are define some of that. What we do not need is a long list talking about progression—imply that you have to address of a hundred items. When we talk about wellbeing, it is the fundamentals, including mental health and drug not far off, and there is lots of evidence to show that use. In terms of holding governors to account, it speaks you can measure that. So it should flow through to the to a flaw in the prison reform agenda more widely, leadership models. For example, what are new group which is that this is only a part of people’s journey—for directors for? That is going to imply a whole new some people, a very short part of their journey. partnership approach with this core purpose at its heart. If you are in prison for a matter of weeks, there is It comes back to staff, as well. Too often it is people very little that even the best governor and staff can do, like me that get to do the nice stuff. I do not get spat at; even with some of the training support. We know that I do not have the uniform; I have keys but I do not have deaths peak the week after custody, so the key that is to have that authority. Staff are being pushed into a role missing is the integration question. How do we hold in which they are doing only the authority side, and lots governors to account for something they ultimately do of other agencies are doing what I call “the nice bits”. It not own? What role within that is there for local authority may not be brilliantly funded. I would argue that, when substance misuse organisations, NHS providers and the we look at the core workforce, that is the core job. Yes, CLCs? There is a need to look across the journey in the they still need to have that authority, but all the dynamic Bill and the wider reform agenda. security tells us that it is about relationships they have; Martin Lomas: There is a balance to be struck. Who it is spotting that flame in someone that can be enhanced. could object to an objective of supporting and promoting If you do not have enough people or time, it is hard to mental health and wellbeing? The issue is, how do you do that. So I would slightly push out people like me and define them? What does “wellbeing” mean, for example? really focus on the core workforce. There needs to be a certain clarity about that. Another argument is, where do you draw the line? One of the Q16 Matt Warman: Related to that, am I right in advantages of the purposes as they are currently stated thinking that greater autonomy for governors should is that there is clarity about them. They are punchy, allow some of that to happen locally, as is best, rather specific and particular. We could perhaps stand having than having a one-size-fits-all model? another couple, but there is a point at which they stop Rachel O’Brien: Absolutely. The centralisation issue being purposes and start being standards. It is really a is a critical one. There is this profound sense of change question of balance. but, at the same time, it is bureaucratic: people are Nigel Newcomen: I certainly endorse that. On, for feeling quite disempowered. We need to be thinking example, the fourth purpose— about how you drive those relationships locally. An “maintain an environment that is safe and secure”— example would be the use of ROTL—release on temporary I cannot imagine an environment that is safe and does licence. That is a decision best made locally, where not have adequate mental health provision, an adequate governors know their people and their employers, and approach to healthcare and, indeed, a decent environment. they can make those decisions. Unless I have misunderstood what is intended in the list Although in policy we have changed our minds, in of four purposes, I think most of the suggestions you practice, as far as I know, not a single London prison is just made would be encompassed within them. I am using ROTL at the moment because of the pressures we with Martin in assuming that if we have an endless list, are talking about. If we are serious about that purpose, you lose some of the prescription, direction and sentiment it has to be a stick-of-rock approach right the way that is intended. through. It is not just the institutions that change, but also people like us on the outside that need to respond to that. Q15 Matt Warman (Boston and Skegness) (Con): This question is probably as much for Martin Lomas or Rachel O’Brien as it is for the rest of the panel. The Bill Q17 Matt Warman: ROTL is routine at somewhere enshrines the idea of rehabilitation and reform for the like North Sea Camp—that demonstrates the variation first time. In my constituency there is a category D across the estate currently. prison, North Sea Camp, and I have seen how difficult Rachel O’Brien: Absolutely. that can be. Do you think that that is a symbolically important gesture, but also that it will make a practical Q18 Richard Burgon (Leeds East) (Lab): I want to difference across the prison estate? Is it something that return to the subject of staffing. The Minister mentioned you welcome as a whole? the 6:1 ratio in terms of staff caseloads; I want to raise a Martin Lomas: That it is clearly articulated that the different ratio. We have already heard about the 7,000 purpose of an institution is to help rehabilitate and reduction in prison officers since 2010. We have also reform the individuals that are sent there? I think that is heard about the aim to have a 2,500 increase. On pretty fundamental and empowering, and brings clarity. Second Reading, there was some discussion in the Chamber Certainly, as an inspectorate, we are committed in the of the need for prison staff to prisoner ratios. In their Bill to take account of the purposes of imprisonment, experience,do panel members think this could be helpful—a although our criteria—the expectations, as we refer to ratio of prison officers to inmates? 11 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 12

Martin Lomas: It might, but I am not sure. It is quite I think the Bill will assist. I think it brings attention a crude measure, and what matters is the outcome and to the issues, and brings focus. It brings an approach to whether there is a quality to the supervision—that the management of prisons that should put accountability prisoners have confidence in the staff around them, that on governors to try to ensure that the provision in their the staff around them are effective and trained, as has establishment—at Chelmsford, for example—is sufficient already been referred to, and that those prison officers, to manage the sorts of very needy and vulnerable people in a sense, are confident in what they are doing. I think who come through the gates of prisons. But it will also it might be useful, but equally prisons are endlessly need to be supported by adequate resource, and adequate complex, have differing requirements, face differing risks, investment both from the prison staff perspective and and have different geography, which will all inform the the healthcare perspective. numbers of people you will need. The case you referred to, as I say, demonstrated a lot of systemic failures within and without the prison system, Q19 Richard Burgon: Would you think—to add a and if you are going to address them we will have to second question, if that is okay—that presumably there have a holistic approach, which also will involve other could be different ratios for different categories of prison, Departments and other provision, other than simply as a minimum ratio? Presumably, whatever the variables, the Prisons and Courts Bill. there must be, in each category of prison, a minimum below which it would be dangerous to go, which would Q21 Nick Thomas-Symonds: If you as ombudsman be contrary to the possibility of fulfilling the purpose of make recommendations, how confident are you that the prisons as set out in clause 1. Secretary of State will act on them? Martin Lomas: Possibly, but within, for example, a Nigel Newcomen: I published a report today on self- category, there are different types of institution, different inflicted deaths among women and I said in the introduction emphases in terms of supervision and risk, and competing that I was disheartened that I was saying again many of requirements. The issue is to ensure that the outcome is the things I had said previously. I have been in post six right—that there is quality to the supervision, and years, and I say very little that is new; I tend to repeat sufficiency in the numbers, and a way of working with things. That does not necessarily mean that there is people that is respectful and supportive and engages the any ill will or any lack of desire to implement the prisoner. recommendationsImake.Virtuallyalltherecommendations Wehave seen lots of places where prisons are insufficiently I make are accepted, almost without exception. I have supervised—there are not enough people around. There given action plans, and my colleagues from the prisons is a variety of reasons for that. One of the consequences inspectorate will go and see whether progress has been of that, ironically, is that prisoners have a chronic made. collapse in confidence. They are afraid because of it, Progress is often made to a degree. I am sure that if but I am not persuaded that just a crude measure is the we go back to Chelmsford, to look at one establishment way forward. you just mentioned, much will have been done in the Nigel Newcomen: May I endorse that? I investigate aftermath of the case of Mr Saunders and the aftermath deaths in custody—self-inflicted deaths, for example—and of other cases there, too. But sustained and consistent they are a pressing problem in the system. One of the improvement is something that the Prison Service has features that we often find is that it is the quality of that struggled to achieve. One of the aspirations the Bill interaction between a staff member, and showing that the must have is that by ensuring greater accountability and staff member is trained and has enough time for that some devolution of responsibility to governors, sustained interaction, that is the issue, rather than the numeric ratio development and improvement can be achieved. To go of staff to prisoners on that particular wing. If there are back to your question, I personally am quite disheartened more staff and no empathetic interaction, there is no that I have been saying the same thing for so long. likelihood of the vulnerabilities being picked up. Q22 The Minister for Courts and Justice (Sir Oliver Q20 Nick Thomas-Symonds (Torfaen) (Lab): To refer Heald): I want to ask you about mobile phones and to my relevant entry in the Register of Members’Financial drugs. Obviously, prison has never been a pleasant Interests, for the purposes of the Committee I should place, and I visited many prisons when I was practising say that I am a non-practising barrister and door tenant as a barrister, but recently I visited a prison and talked at Civitas Law in Cardiff. to one of the trusted prisoners who said that the impact On the issue of deaths in custody, you will be aware of of psychoactive substances has been marked, particularly the inquest findings in January on the death of Dean on younger men prisoners, with there being a lot more Saunders in Chelmsford prison, in which a number of violence than there used to be. Mobile phones are also criticisms were made of mental health care, and the enabling prisoners to commit crimes at one remove that prison system generally. Are you satisfied that the Bill they did not use to be able to do. Will you each say a will address those failings? word about drugs and mobile phones—what their impact Nigel Newcomen: It is difficult to be satisfied that a has been and whether the measures in the Bill are a Bill that I am still coming to terms with has got a help? sufficiently comprehensive reach to cover all the deficiencies Martin Lomas: The linkage is very clear. The tsunami exposed in that particular case. It was a very sad case of new psychoactive substances in the last three or four where systemic failure outside as well as within the years has had an enormously destabilising impact on prison system was exposed—mental health deficiencies. prisons. The chief inspector referred to that in his The provision for individuals at risk was certainly not as annual report, and I for one have never seen anything good as it could and should have been, and I was quite quite like it. Interestingly, some prisons cope better than robust in our investigation report. others, and there are some lessons to be learned there. 13 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 14

The linkage between drugs and the use of mobile Q24 Sir Oliver Heald: I do not know whether you phones and technology is clear. It facilitates criminality— would agree, Mr Simpson, but I think a lot of prison there is no doubt about it. I was talking to a colleague officers find it very rewarding if they are able to help a of mine who has inspected this regularly and one of the prisoner to come round and live a better life after he tricks is to meet a new prisoner arriving in the institution leaves prison, and to help him get some skills while he is who does not have a phone card and so is unable to in there. I have certainly always found that when talking communicate, and entrap them in a sense by lending to prison officers. Do you agree that the overall idea of them a phone, in which the numbers are stored. That having proper purposes for prison, trying to increase facilitates the intimidation of families and leverage on the number of officers and tackling this scourge of them. drugs and mobile phones is the overall package that is The answer to that is proper prevention mechanisms needed? to stop mobile phones coming in and to interrupt those Joe Simpson: It is, but drugs are not new in prisons. that arrive, and the Bill is supportive of that; but also, in tandem, effective means of ensuring that prisoners have Q25 Sir Oliver Heald: No, it is these psychoactive access to legitimate phones, either in cell—we see that in substances, which are allegedly legal. some more modern institutions, which is incredibly Joe Simpson: Yes. The Government have also said it helpful—or through phone cards and effective access is illegal to bring them into prison or throw them over to, for example, the canteen. We routinely report on new the wall, yet it still happens. When you are talking about arrivals to institutions who do not get access to the supply and demand, say for argument’s sake that you canteen for 10 days, which increases their vulnerability can buy a bag of NPS on the street for £1. When it both to self-harm—it is a high-risk time—and to others. comes into prison, it is worth anywhere between £60 and It is a twin-track response, and the Bill helps. £80. It is big business, and it does not have a great effect Rachel O’Brien: I agree with all of that on phones. on the person who is supplying it from the outside, You see that really small things in prisons, like not because they are never, ever going to get into trouble, having your phone card and getting the small stuff because nothing ever goes back to them. Mobile phone right, can have a huge impact. On NPS, to go back to are big currency in prisons. As a union, we have been the centralisation and the local, we took a long time to asking for mobile phone blockers to be put into prison respond—inspections were raising that from 2012 onwards for years. That would stop the criminality inside and —and it is an absolute game changer. We have not been outside of prison. adaptive and responsive, and I think that is partly Then we have drones. When they come over, it is because we wait for the central machine to respond. about what they are carrying. We have had to approach That resulted in a quite punitive initial response; it was the employer and say, “When there is a package dropped like we had forgotten everything we know about healthcare off into the grounds of a prison, you have got a prison and substance misuse, with NPS seen somehow as officer immediately being told to go over and pick it up. different, which is ironic, because it is legal outside. It is It could contain anything, and there is no proper control very strange. So you have had a really punitive response over that.” generally, and I think that is beginning to change now. Yes, more time out of cell, and a prison officer Thirdly, you need to look at supply and demand. Yes, watching them and interacting with them, would help. stopping it coming in in the first place is absolutely When I was a prison officer at Holme House, we used to critical, but if you have no activity and no purpose—there have prisoners out on association, and they played pool is a lot of evidence to suggest it is partly about boredom and went on the phone. When you had a bank holiday and time out of your head, if not your cell—you are weekend, such as Easter, by Sunday dinner time they going to seek it out. I am not sure I would not seek it were bored, because they were doing the same thing out, if I was stuck in a cell day after day. We have to every weekend and every evening. It is about changing look at the demand side, as well as supply. that, with education in the evening, gym programmes and programmes that prison officers can lead on, because before we entered the job, we had a prior life. We have Q23 Sir Oliver Heald: If you take the aims in the Bill teachers who have joined the Prison Service. They have of active reform and rehabilitation, and trying to prepare a wealth of experience, but no one is using them, people for the world outside, are you saying that if you because we are going back to what we fear is a turnkey achieved that sort of purposeful regime, you would have situation. a more peaceful regime? Rachel O’Brien: Absolutely. Q26 Sir Oliver Heald: Of course, a lot of these prisoners could benefit from that experience, could they Nigel Newcomen: You would also have a safer regime. not? They are not very well educated, and they could Access to legitimate phones increases family contact get some skills and make more of their lives. and the ability to mitigate your pressures inside. If you have more activity, you are less likely to be bored and Joe Simpson: Yes. less likely to need the bird-killer that is NPS. I endorse Martin Lomas: I agree that NPS is a specific challenge, what colleagues have said: it is absolutely, fundamentally and it has been a game changer. We have seen prisons right for supply reduction to be at the heart of the Bill, that do better than others—this is a bit speculative, and but demand reduction—the lessening of the need—has there needs to be more research into this—and that to be implicit, and I take it to be implicit in the new seems to be down to effective multi-disciplinary working, purposes of prisons that have been specified. If it is not, particularly with local law enforcement and the like. we will be chasing a punitive response without the However, your point is valid: there cannot be reform, likelihood of success, because we will not have dealt work, education and rehabilitation without safe institutions, with demand. but there is then a feedback loop. If prisoners understand, 15 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 16 believe and realise—as enough of them do; there is a Nigel Newcomen: If I may say so, I think it is a counsel critical mass—that they might have to be in prison, but of defeat. The prison system has always faced many at least there they have a chance, or that it is worth challenges. I described NPS as a game changer in one of investing their effort, or that there is a constructive my reports, and it probably has been, but it is not that opportunity for them, that in itself will begin to lift the there is no work going on in either supply reduction or bar and create a sense of positivity and civility within demand reduction. There are even some very good the institution. efforts being made at harmonisation by prisoners themselves. There is always scope for improvement, and Q27 Matt Warman: You briefly mentioned mobile to assume that there is no answer to the problem is, as I phone blockers; the Bill allows for more rapid blocking say, a counsel of defeat. of individual mobile phones that are associated with prisoners. Presumably, you would welcome the fact that Q30 Yasmin Qureshi: I was not saying that there is you would not have a blanket ban on everything, or use not an answer to the problem. I was saying that, yes, more widespread blocking, because prison officers have some good things are happening—I am not saying mobile phones, which are useful for keeping in contact nothing good is happening—but to achieve a level of with families and all that while in the prison. Of course, productivity, if I may use that expression, you will need people who live nearby prisons do not appreciate their back-up resources. That is what I am talking about, in systems being blocked, either. This helps with that, I essence. That needs to be addressed fully. would hope. Martin Lomas: There needs to be proper supervision Martin Lomas: Whatever technology works. Actually, of prisoners to give confidence to staff and prisoners. in prisons, nobody is allowed a mobile phone; there That might involve a resource solution, but equally, as may be a community consequence. colleagues have said, there are issues around leadership, Q28 Matt Warman: Not on the block, but in the accountability, learning the lessons that have just been broader area it is still a pain to have anything blocked, is pointed out to you, and sustaining improvement, rather it not? than this being the rollercoaster that we often see. A variety of resource, cultural, management and leadership issues need to be put right. Martin Lomas: I can imagine so. Rachel O’Brien: You mentioned prisoners and the Rachel O’Brien: If you look at open prisons, or role of prisons. That is a huge untapped resource. It is somewhere like Britannia House in Norfolk, the prisoners very easy to talk about things like co-design and working who are working outside during the day have access to with prisoner empowerment, but when you do it, you mobile phones. That is really important for jobs. As see the transformative change, not just among the prisoners ever, it is about looking at the context. but in the staff, and if staff are doing it, rather than Matt Warman: So the more targeted the technology— people like me, that is how you get a completely different that is what the Bill more quickly allows for—the better, kind of response. Prisoners can be your best allies. They ultimately? do not want to live in unsafe environments where it becomes the norm to be off your head. One of the Q29 Yasmin Qureshi: Whether we are talking about things that would not be in the Bill but is absolutely mobile phones, psychoactive drugs, mental health or about the culture is seeing prisoners and their families education, the truth is that you do not have sufficient as key assets to support outcomes. trained people in the Prison Service, or in the round, to deal with these problems. Unless and until those properly The Chair: Chris Philp, on this point. I want to qualified and trained people are there, none of these exhaust this area before we move on to the next problems will go away. It does not matter how much questions. legislation we have about phones or drugs or whatever; unless there are people there to deal with it, nothing is Q31 Chris Philp (Croydon South) (Con): Mr Lomas, really going to shift, is it? you said a moment ago that you thought that there were some failures of leadership in this area. Will you expand Rachel O’Brien: That is a problematic position, and a bit on what you mean by that? in a way I think that is where we have been stuck for years. We cannot do this stuff—we all agree with this Martin Lomas: I was making a broad point about rehabilitative outcome—until we have that. I agree, and there not being a single solution to the problem, and I would love to see more staff investment, but a lot of it about how there needs to be analysis of what is needed is also about culture and leadership. We have talked in particular institutions. The Bill requires us, as an about rehabilitation, but we have a prison system that is inspectorate, for the first time to take account of leadership, still, in lots of ways, very command-and-control, and of and we will be commenting on it. We sort of do already, the old military model. In terms of culture and hope, but this will be a more transparent arrangement. Our prison officers and prisoners are like us: they have intent is to link our commentary on leadership very ambition, purpose and activity. That is what is missing. directly to the outcomes that we see in the prison. We Yes, we need more staff, and we need to use them and are not management consultants as such, but we will the external agencies more wisely, but the key is rethinking look for there to be evidence of leadership—at every the culture and how prisons are run. That is what makes level, because it is not just about the governor. There the difference. We know it makes a difference, because needs to be leadership among staff and at the Ministry we have some fantastic prisons and wings and so on of Justice. A variety of influences will create a situation that operate very differently. in a particular institution. 17 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 18

Q32 Chris Philp: In your experience of inspecting Rachel O’Brien: I am slightly nervous of the new prisons, how frequently are there comprehensive searches HMPPS defining this thing. We know a lot about both of prisoners and their cells, with the purpose of wellbeing: for example, we can measure people’s ability identifying things like mobile phones and drugs? to make good decisions and their self-confidence—all Martin Lomas: It is not something we specifically sorts of things that are prerequisites for the resilience look at, although they are going to begin looking at it, they will need going forward. We are working with a but every prison will have a security protocol that will high-security prison at the moment to develop a specify the amount of searching that takes place. That is community-wide strategy. The outcome is going to be just the routine element. There will be search protocols great. It is about thinking about, in a very closed around specific risk areas like visits, reception and the system, how you have a better relationship with the like, and there will be targeted searching in response to outside world, family and so on. Actually, it is about the intelligence that comes in through information reports. process of engagement with those prisoners, when they There will be a variety of responses and different levels are talking strategies and tactics.They would not necessarily of searching, some more intrusive than others. Beyond agree to do desktop publishing, but they will do it that, there will be the application of technology, dogs because they are producing a newsletter to communicate. and all sorts of available options. It is that kind of approach, and you can measure people’s progress—partly because they will tell you and partly because you see it. It is that kind of approach Q33 Chris Philp: In your experience of inspecting that we need to replicate. Prisons need to be able to do prisons, do you think that search, whether of individual things themselves rather than outsource them, because prisoners or of their cell accommodation, is adequately that is how staff can get those really valuable relationships. frequent, bearing in mind the amount of contraband that seems to be in circulation? Q35 Liz Saville Roberts: Nigel Newcomen, you Martin Lomas: I do not think that I can give a mentioned the dichotomy between supply reduction broad-brush answer to that. There are 120-odd institutions and demand reduction. There are aspects of this Bill thatperformdifferently,andtheidentificationof contraband that deal with supply reduction per se. To what degree might be a sign of the success of searching, so it is a do you and other members of the panel feel that the difficult one to answer. We look at the security of the demand reduction aspect is sufficiently considered within institution, the risks that it faces and questions of the Bill? proportionality. Prisons have to be constructive places, Nigel Newcomen: As I said, I impute from the purposes so searching needs to be justified, reasonable, effective onward that some of the balances that we have been and for a purpose. A variety of factors need to be struggling to put across to you are required are implicit considered. in the Bill’s structure. Demand reduction is a necessary partner of supply reduction. If you have only one, you are going to have only part of the solution. It is essential Chris Philp: Mr Simpson, what is your view of the to have supply reduction, both for phones and for search regime? drugs, but you equally have to have work to mitigate the Joe Simpson: At the moment, it is hit and miss across demand and the need for those illicit goods. Without the whole system, and that is down to staffing pressures that balance, I think we are on a hiding to nothing. and the regime. The Prison Service ultimately does There is nothing in the Bill that I can see that precludes whatever it has been told to do by the Secretary of State that balance. in power at the time. We have gone from “security, security, security” to “regime, regime, regime”. Only at Q36 Liz Saville Roberts: Would you be prepared to the weekend one of our prisons had to shut down the suggest additions to the Bill that might make it less whole prison in order to put on visits on a Saturday implicit and more explicit? afternoon. Nothing else happened—there was no searching and the prisoners were not out of their cells. They were Nigel Newcomen: I am not sure I can think of any. It in their cells because there were not enough staff on just seems to me that, unless we are misinterpreting it, duty to get them out. the supply reduction issues are necessarily going to be balanced if you want a purposeful, rehabilitative prison. It depends on what the searching protocol is for the It is implicit that you have to do both. You cannot prison as well. Obviously, we have got different simply attempt to reduce supply if demand is insatiable. categories—A, B, C and D. I would say that the searching strategy in the category A and B systems is more robust Martin Lomas: I agree with that, but I would also because of the types of prisoner being held. In cat C make the point that there has to be a balance. One goes and cat D, I would say it is not as much as we would like with the other. I make the observation that it is not to keep people safe—especially in the cat C estate. perfect. How much is enough? We often report quite positively on some of the demand-side work that we see taking place within institutions, notwithstanding some Q34 Nick Thomas-Symonds: Rachel, a moment or of the other issues around it. In contrast, when we two ago, you were taking about what the prisoners inspect we survey prisoners and one of the questions we themselves have to offer in this. I know that the RSA ask is, “How easy is it to get drugs in this prison?” and has spoken about things such as rehabilitation culture—I although I cannot remember the exact statistic, the think “rehabilitation capital” is the phrase that is used increase in positive responses in recent years has been by the prisons. Can I pick up on that and, in a general striking. Wecomment on that routinely in our reports—that sense, ask you whether you think the Bill incorporates quite a lot of prisoners are telling us it is easy to get that sort of culture and those sorts of measures in the drugs in. Some of that will be over the wall, some will way you would like to see? be an interpretation of the question around, for example, 19 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 20 the diversion of prescribed medication, which is also an Nigel, I want to follow up on your point about the issue. So it is a complex problem and there has to be a statutory purposes listed in proposed new section A1. balance. Questions of quantity will always be difficult There are four purposes set out and you said that an to determine absolutely, but a balance is what is needed. endless list would be unhelpful for professionals and for the inspectorate. Can you say a bit more about why you Liz Saville Roberts: Mr Simpson, what do you think? think that the current drafting hits the nail on the head Joe Simpson: On the demand side, the Prison Service and strikes the right balance? has been very successful. When I joined, the drug of Nigel Newcomen: I did not quite say that the current choice was cannabis; then, when they started mandatory drafting hits the nail on the head. I said that an endless drug testing, it went from cannabis to heroin and cocaine, list would, I think, be unhelpful; I think Martin made for the simple reason that they stay in the body a lot less the same point. If you are going to have a set of than cannabis. But we just punish prisoners; if they get overarching purposes, they need to be relatively discrete, a positive MDT, they are punished and that is the end something managers can focus on and, in Rachel’s of it. We are not doing anything to say to them, “Why words, could run through a stick of rock. If it is an are you taking it?” Why don’t we turn around and start endless list, that is a very big piece of rock. This needs educating them about the drug issue, rather than just to be a means of gaining clarity for the organisation punishing them? As long as we punish them, nothing is and the institution. going to change, because they still want that drug; they I said in passing, I think, that the word decency, for will still want it inside. example, was missing. It may be that there are bits of As long as people are coming into prison and bringing drafting that may be attended to as the Bill goes through. it in—the supply side of it—they do go hand in hand. I think a relatively discrete statement of purpose and set We have to stop the supply but we also have to start to of aims is useful. All experience of business management reduce the demand as well, because if we reduce the and organisational institutional change is predicated on demand, the supply will stop coming in because people having a relatively limited set of outcomes that you are will no longer want it. seeking to achieve. I think these are pretty good and How do we do that? When I was at Holme House we discrete statements. They could probably be improved, had a successful drug treatment wing there. We but I do not think I would like to see the list get that turned it on its head: it was run by the prisoners. They much longer. looked after everything; they made sure everything was clean and took over the duties of the prison officer. Q38 Suella Fernandes: My second point I would like The prison officer was still there; we were still there to raise with all members of the panel relates to health supervising it and it worked. Then all of sudden, because and mental health provision in the Bill and also in the we ran out of money, it went. We reduced the demand White Paper. In those, there is considerable detail on and then, once the money stopped, the demand went how governors can work together with the local clinical back up, because there was nothing there to get prisoners commissioning group or other health providers to assess to take charge of their lives in prison. That is what is the health needs of prisoners, co-commission services missing. and assess quality of performance, instilling a bit more Rachel O’Brien: It is an interesting question, in terms responsibility and flexibility in the system to safeguard of responsibility.I would raise a concern about that being health and mental health concerns. I would like the just on the governor, not going any wider. It is interesting panel’s views on the mental health and health provisions. to ask about the responsibility to reduce demand and Joe Simpson: When you are bound to outside agencies, how you might show that. The other parts of the Bill especially in prisons, they are not there 24/7. The only that are important concern education, employment and people who are there 24/7 are prison officers and prison health commissioning, because ultimately if we do not staff. One thing that we are going on from mental health have more people working, more people getting the is also social care in prisons. We have a lot of older treatment they need, the supply will respond to demand. prisoners who need more social care. Between the hours For me, a key question is whether that commissioning of 7 o’clock at night until 7 o’clock the next morning, going to be more local, more sensitive and more productive. they do not have access to that, and we do not have Many prisoners will tell you that they are either in their access to that as prison staff. We have no training cell most of the time or they are doing another level 1 whatever in order to assist prisoners who have those catering when they have done four as they have moved needs. around the system. The intention, not so much as Mental health and health wellbeing should start on reflected in the Bill, but in the education strategy and so reception at the prison, when the prison officer brings on, is to actually look at more progression for people. the prisoner into prison, goes through the reception Again, it comes back to the fact that a prisoner will process and then passes them on to our colleagues for tell you exactly how they want to progress, but what if the mental health check. From that should come a plan that is not available? I really worry that while what is in of care, but that is not there, for the simple reason of the Bill looks like a decentralisation of commissioning, time—“Let’s get them through because staff need to get I am not clear that that is actually what is going to off,” or, “We need to do this; we need to do that.” It is happen. constant pressure on the regime and having the staffing available to do that. Q37 Suella Fernandes (Fareham) (Con): I refer the If you are dependent on an outside agency that has Committee to my entry in the Register of Members’ its own staffing problems, it is not going to be done. Financial Interests. I am still in receipt of fees from the That is the frustrating part from our members’ side. They Treasury Solicitor for providing legal services to the identify a problem and nothing seems to be done for two Ministry of Justice and the Parole Board. or three days because we cannot get that expertise in. 21 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 22

Why not utilise the person who is already there—the Martin Lomas: The specific technicalities of how prison officer—and train them to do those duties, so they are investigated, no, but the fact of assaults on that we can give better mental health care and increase staff, yes, it is something we would look at. We would wellbeing? look to disaggregate the data to see whether we can get any learning from them, so we would look at fights and Q39 Holly Lynch (Halifax) (Lab): May I return to the assaults—prisoner-on-prisoner assaults and prisoner on issue of prison officer safety? I have tabled some new staff. There is no doubt that violence is increasing clauses that I hope will be helpful in that regard. On across the three, but it is notable that violence against Second Reading, we touched on the issue of a prison staff is increasing; it has increased quite markedly in officer being assaulted in prison by a prisoner. Is that recent times. At an anecdotal level, we watch videos to referred to the police,followed up by the Crown Prosecution try to get some sense of the—this is an unfortunate Service and taken to court, or is it dealt with internally word—quality of the violence, and yes, some of it can within the prison? What is your experience of the decision be quite disinhibited, concerted and reckless. There was making around that process, and what would be the a case recently in which a member of staff in a midlands preference of the Prison Officers Association for dealing institution was very severely assaulted and hospitalised. with those types of incidents? They went through considerable trauma; the case has Joe Simpson: Our view is that somebody who assaults been reported in the media. our members should be punished. As for the question Yes, we report on violence as a feature of relationships of who does that, we are not really bothered. Our between staff and prisoners, but the questions about experience, and my members’ experience, of the police policing priorities in a certain area or the decisions of and CPS is actually getting a policeman in to do the the CPS in terms of public interest and what have you investigation. More often than not, what comes back are matters that they would need to account for. But from the CPS is that it is not in the public interest, yes, we believe that staff should be supported and that because that person is serving a sentence and in prison prisons should be safer, and we believe the Bill is a anyway. That demoralises our members. They feel as if positive measure in supporting that endeavour. they go to work and they are just punchbags. There was a big campaign by the trade union to try to change Q41 Holly Lynch: Can I press you on that point? Do people’s thinking on that, because we work behind a you think this is something that you should be looking wall—people do not look in and we do not look out. We at in that case? It sounds as if you are collecting the would like our members to be protected by the law and statistical data about frequency,but not doing the follow-up to be taken seriously when they are assaulted at work. about how violence is investigated to see whether there Some incidents are serious physical assaults, but you is evidence about how deterrents should be in place, for also have to look at the mental aspects, especially in example. relation to spitting and biting. Let us say that a prison Martin Lomas: We look at outcomes. The process of officer is bitten. We do not know the prisoner’s history. investigation and whether the investigation was competent, We do not know whether they have any blood-borne whether the police should be more engaged and certainly disease or anything like that. The officer then has to whether the CPS should have charged—we would not spend six months on antiviral treatment and everything look at that. like that, and along with that goes the mental anguish, not just for the member of staff, but for their family, Q42 Mr Gyimah: I would like to ask a question and because they cannot interact properly with their family get the panel’s views about accountability in the new for six months. That leads to its own problems: high prison system and how that works.Starting with Mr Lomas, rates of divorce, cases of alcoholism and people just not what difference do you think the Bill will make to the wanting to come to work. That develops into mental effectiveness of the prisons inspectorate? Could you health problems. While they are in the service, they are also comment particularly on how you see the notification looked after, but once they are dismissed by the service, trigger being used? all that assistance stops, because the employer turns Martin Lomas: We think this is an important step round and says, “Well, we’re no longer responsible for forward. We think the Bill is helpful and useful. We have that care.” Sometimes we are putting really poorly and already talked about what it says to those who run ill prison officers back into society with no assistance institutions, with regard to their purpose and what they whatever, because of something that has happened in are meant to be doing. As far as the inspectorate is the course of their work. concerned, we believe it strengthens our institutional One of the most disgusting things ever is potting. It is framework. It recognises us formally as an entity and especially the female members of staff who are targeted. clarifies our powers. At one level, those powers have not A prisoner or prisoners will fill a bucket or whatever changed, but the Bill clarifies them, which is important with excrement and urine, wait for the officer and then in terms of asserting our independence and reflecting tip it over them. We are seeing an increase in that, because the public’s understanding of what we are about. We prisoners seem to think that it is more acceptable than believe that the reference to OPCAT—the optional hitting a member of staff or hitting a female member of protocol to the convention against torture and other staff. They still see that as a bit of a taboo subject, but cruel, inhuman or degrading treatment or punishment—is that is starting to break down. They are not just targeting absolutely critical in emphasising the independence of male staff; they are now targeting female staff as well, the inspectorate and consequentially its authority and especially with potting, which is absolutely disgusting. ability to speak to issues and to all stakeholders, including the Government and others. Q40 Holly Lynch: Mr Lomas, when you do inspections We believe the specifics around the requirement to of prisons, is how assaults on prison officers are investigated respond on recommendations—reflecting current practice, something that you would look at? but raising the importance of the process, formalising it, 23 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 24 and making it more accountable—is a very big step everything. You have got to look at the safety—are forward in terms of our impact. Added to that, the there enough staff, are staff being looked after, are notification arrangement and the significant concerns assaults against staff being investigated properly? Then that are referred to again reflect practice. We would not you have to make the recommendations to the governor walk away from a disastrous prison and not do something. to get it right. We do act, and in fairness to the National Offender Management Service as it is now—Her Majesty’s Prison Q44 Richard Burgon: When you mention staff, Joe, is and Probation Service—it does respond in those there a level of staffing beneath which you believe it is circumstances. This is about making that process more dangerous to go? transparent and accountable and putting names to the Joe Simpson: There is, yes. You have to have enough responsibilities. It is most definitely a step forward. staff to do what we call the basics—to ensure that Rachel O’Brien: I agree with all of that. Werecommended prisoners are safe and getting their meals, access to that stronger role for the inspectorate. There is a question medication, access to education and access to fresh air about what happens in between inspections; that is and exercise. That is the basic minimum we can give, sometimes a bit strange. There are top-level things that and everything above it is what we term the fluffy parts drive change for the three or four years in between. That of prison. At the moment we are operating at that level. is a question that we did not answer. We looked at the We believe that if the chief inspector has that legislative possible role of the independent monitoring boards, for power things will change, because the governor becomes example, to look at the more institutional day-by-day accountable and so does the Secretary of State. changes in the shorter term, but also new issues that might come up. The danger is that sometimes we say, Q45 Mr Gyimah: The role of the Secretary of State in “Those are the three priorities”and meanwhile something the Bill is to be responsible for the whole system and changes over here, in the local drugs market or whatever accountable to Parliament. Just to make it clear, are you it is, so there is a question about what happens in arguing that somehow the Secretary of State should not between. be in this loop at all, and that it should all be about the governor? In which case, how is the Secretary of State My overall accountability freedom issue would be responsible for the system? that I worry about the balance. There are a lot of new accountabilities, still from the top-down league tables. Joe Simpson: What I am saying is that if the chief Are those governors and new group directors going to inspector goes in and has the 28-day order,the notification have sufficient freedoms to make local decisions? That to change something comes to the Secretary of State—it is the key question. That cannot be defined in primary does not go to the person who can make that change. legislation; it is much more about the narrative coming The Secretary of State gets it, and then you have a out from Government and so on. three-month intervention. They then come back down to the governor to say, “This is what is wrong. What are Joe Simpson: The POA welcomes the changes, but do you going to do about it?” They give the plan, it comes not think they go far enough, both for the chief inspector back up to the Secretary of State, and then the Secretary and for the Prisons and Probation Ombudsman. We of State announces it to Parliament. Why do we not just would like to see the same legislative powers given to give it to the governor and, for want of a better word, them as the Health and Safety Executive. If someone is copy the Secretary of State in so that they know what is going to inspect prisons,then inspect prisons and everything happening? Then if things are not improving, the Secretary that goes on. If there are recommendations, someone of State intervenes once the chief inspector turns around should turn round and say to the governor “You are not and says they need to do that. doing something right.” If we are giving governors autonomy, it is not the Secretary of State who is running the prison—it is the governor. He is the employer and Q46 Mr Gyimah: There is a line management structure the person who is in charge of that prison, so they that goes from the Secretary of State through HMPPS should get the 28-day notice. What is the point in and the governor. If a prison is failing—for want of a putting that all the way back up for the Secretary of better word—it makes sense to have the person who is State, so that she can say, “Yes, we have an action plan”? accountable for the system, and the line managers of We would rather see something coming from the chief the prison, be aware of it and take action with the inspector of prisons go to the governor to improve governor. things, and if they do not improve them, the legislative Joe Simpson: My answer to that is, why has not powers akin to the Health and Safety Executive given to anyone done anything about HMP Featherstone? the chief inspector and the PPO. If we are going to have independence—the independent scrutiny of prisons and Q47 Richard Burgon: The prisons and probation the independence over deaths in prisons—they should ombudsman touched on this earlier, and I just want to have that legislative power to turn round and make give everyone on the panel the opportunity to respond. things change, rather than wishing for it. The Howard League, the Prison Reform Trust and the Prison Officers Association have all highlighted the need for the purpose of prisons to commit to decent Q43 Richard Burgon: I have two questions. First, and fair conditions. The wording comes from Lord following on from what Joe has just said, should the Woolf, who set it out in 1991. Would the panel members inspector review the resourcing and availability of staffing prefer the Bill to clarify that with reference to “decent” in prison, and should this Bill legislate to enable that? and “fair”, as set out by Lord Woolf in 1991? Joe Simpson: Yes, because we have got a chief inspector Nigel Newcomen: Having made that point previously, of prisons and you cannot just go and do some parts of I have to repeat that it merits consideration at least. I a prison and not do it all. You have got to look at stick with my previous balancing point: we need to 25 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 26 minimise the verbosity of the statements and limit the and their health and rehabilitation programmes. Will words, although maintaining an environment that is safe the Bill help to address these issues, particularly in and secure will not necessarily ensure an outcome that commissioning health and education professionals to is a “decent environment”, let alone a “fair environment” support offenders with these needs? —again, Lord Woolf’s phrase. I hope that as the Bill Martin Lomas: The Bill sets out the purposes of goes through Parliament that will at least be explored. imprisonment, which are meant to take account of Martin Lomas: I agree with that. In the inspectorate, specific needs and rehabilitative agendas. If a needs one of our key judgments is “return of respect”. It is analysis of a particular population group confirms that essentially saying the same thing and we see it as significant view—and I believe it—then that is a priority that the in defining a healthy prison. governor will need to emphasise. Rachel O’Brien: I agree. For a long time, “decent, safe If the Bill works, and that is to be seen, it gives and secure” has been the vision, if you go into most opportunities for governors to make decisions locally prisons. Having that vision should be absolutely based on their understanding of what is going on fundamental for institutions. How the new stuff is around them and the connectivities they can create with interpreted and kept simple and straightforward is what local providers and services. What applies to the specific really interests me, as we talked about before. case you have identified also applies to a range of other Joe Simpson: We welcomed it. I was at Strangeways things to do with, for example, education or mental when it was done and we welcomed everything that was health intervention, partnerships with health authorities, said. Yet again, it is another report that is gathering safeguarding initiatives and all sorts of opportunities in dust. We have seen this with different reports since I that regard. joined in 1987. My colleague has already had a go at the Rachel O’Brien: Yes, I think the implication of that Corston report; it is 10 years old and nothing has key change is profound, but the prison system does not happened. There has been the Barrett report and the communicate well, generally, I would say, from top to Woolf inquiry to end over-crowding—nothing has bottom. It is a huge and complex system. We had Nils happened with any of that. If we are going to have a Öberg from Sweden over recently. He said the most report, let us do what it recommends. important thing they had changed was how they communicate across the system. That goes right down The Chair: We are coming to the end of the session. to that level of forms and communication on the wings, Two Members are indicating a wish to speak. We will how you do education, and so on. In my experience the take their questions and, if any Members wish to declare best way to change that is not top down. Again, often any interests, they can do so before we wrap up. the prisoners will say, “The way we are going to try to engage people in this is through a different format”—very Q48 Mr Gyimah: On deaths in custody, I would like visual, very simplistic. They will be best placed, often, to hear Nigel Newcomen’s thoughts on how putting the alongside officers, to know how to do that, rather than PPO on a statutory footing is beneficial and what that being mediated from above. difference it could make to your investigations. I am doing some work at the moment on something Nigel Newcomen: I am very clear that this is a step-change called the New Futures Network, which will look at improvement in the situation for the prisons and probation how you drive innovation through the system. A key ombudsman and I hope my successor benefits from it. part of what we want to look at is the way we use It is quite astounding that a body tasked with investigating animation, visuals and so on, right across the piece. some of the most sensitive and secretive contexts in That requires technology questions to be answered, but looking at deaths in custody and complaints in custody absolutely it is about innovation and fairness, and sensitivity is basically dependent on the goodwill of those whom it in thinking about the audience. I do not think that is a is investigating for access to places, people and documents. kind of legislative issue in that way. The Bill rectifies this. This is something that not just I but parliamentarians of many hues have been calling The Chair: A final brief question, because I want to for for many years. give time for declarations, and a brief response, please. There have been two previous attempts. You will note that there has been very little objection in any of the Q50 Yasmin Qureshi: I have two little questions. materials I have seen from NGOs. I think it will enhance the actual and perceived independence of the office, but more particularly it will improve the practical and The Chair: Just one. investigative capacity and, I hope, contribute to the outcome of greater safety and fairness in custody. Yasmin Qureshi: Mr Lomas, in response to a question about the educational aspect of things you said, “Look Q49 Nick Smith (Blaenau Gwent) (Lab): I want to at the intention of the Bill and the purpose of prisons.” touch on the point about the education and health Bearing in mind we have been hearing about issues of needs of offenders. I will refer to the written evidence self-harm and about suicide rates increasing, what about submitted by the Royal College of Speech and Language enshrining prisoners’ mental and physical health in the Therapists today that there is a high prevalence of statute book, in clause 1, giving it parity with the four speech, language and communication needs in the criminal other things? justice system. It says that Martin Lomas: I have not really anything more to “over 60% of young offenders have speech, language and add to what has been said already. Yes, possibly: it is an communication needs”— issue and a priority. Whether that specific issue of detail and that this affects offenders’ ability to engage with should be one of the stated purposes of imprisonment “verbally mediated physical and mental health assessments effectively is a judgment call. It could be. As an inspectorate we including suicide risk screening” will inspect it whether it is a stated purpose or not. 27 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 28

There will be an obligation to meet that need if you are Nick Smith: I am pretty sure it is not declarable, but I genuinely meeting the purpose of being rehabilitative used to work for the Royal College of Speech and and reforming. Mental health, for example, is fundamental. Language Therapists. It is a priority. It is in a sense a subset of the stated purposes already. As to whether or not it should be Nick Thomas-Symonds: To add to the point made by elevated into being a stated purpose itself and whether the Lord Commissioner of Her Majesty’s Treasury, the that will impact all the issues that Nigel referred to hon. Member for Hexham, I am still owed thousands of earlier—of course we would like it to be stated in those pounds in fees, some of which I think may be from terms, but what about other things of importance? Her insurers. Majesty’s inspectorate of prisons has its own criteria. We operate to independent criteria and will look at health outcomes, including mental health. Sir Oliver Heald: I am a barrister, not currently practising, and I am the legal aid Minister, so I apologise, boys. The Chair: Are there any hon. Members who want to declare an interest before the end of the sitting? Robert Jenrick (Newark) (Con): May I also declare an interest? I am a solicitor, not currently practising, The Lord Commissioner of Her Majesty’s Treasury and a prison visitor at HMP Lowdham Grange in my (Guy Opperman): I declare an interest as a non-practising constituency. former barrister. I am still owed certain fees by the state and insurers even after seven long years, and I wrote a book called “Doing Time”, which unaccountably has Craig Tracey (North Warwickshire) (Con): I chair not sold out, on prison reform—so I declare its existence. the all-party group on insurance and financial services and was an insurance broker for 25 years. Richard Burgon: I am a former practising solicitor—I am non-practising now. I used to be an employee of The Chair: I am afraid that brings us to the end of the Thompsons solicitors who have an interest in matters time allotted for the Committee. I thank the witnesses discussed this afternoon. on behalf of the Committee for their evidence. Ordered, That further consideration be now adjourned. Yasmin Qureshi: I was also a practising barrister. I —(Guy Opperman.) stopped practising in 2010 but I have recently become a door tenant and I can now practise and may choose to 11 am practise. Adjourned till this day at Two o’clock. PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES

Public Bill Committee

PRISONS AND COURTS BILL

Second Sitting Tuesday 28 March 2017

(Afternoon)

CONTENTS Examination of witnesses. Adjourned till Wednesday 29 March at twenty-five past Nine o’clock. Written evidence reported to the House.

PBC (Bill 145) 2016 - 2017 No proofs can be supplied. Corrections that Members suggest for the final version of the report should be clearly marked in a copy of the report—not telephoned—and must be received in the Editor’s Room, House of Commons,

not later than

Saturday 1 April 2017

© Parliamentary Copyright House of Commons 2017 This publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 29 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 30

The Committee consisted of the following Members:

Chairs: †MR GRAHAM BRADY,GRAHAM STRINGER

Arkless, Richard (Dumfries and Galloway) (SNP) † Qureshi, Yasmin (Bolton South East) (Lab) † Burgon, Richard (Leeds East) (Lab) † Saville Roberts, Liz (Dwyfor Meirionnydd) (PC) † Fernandes, Suella (Fareham) (Con) † Smith, Nick (Blaenau Gwent) (Lab) Gyimah, Mr Sam (Parliamentary Under-Secretary of Swayne, Sir Desmond (New Forest West) (Con) State for Justice) † Thomas-Symonds, Nick (Torfaen) (Lab) † Heald, Sir Oliver (Minister for Courts and Justice) † Tomlinson, Michael (Mid Dorset and North Poole) (Con) † Jenrick, Robert (Newark) (Con) † Tracey, Craig (North Warwickshire) (Con) † Lynch, Holly (Halifax) (Lab) † Warman, Matt (Boston and Skegness) (Con) McGinn, Conor (St Helens North) (Lab) † Opperman, Guy (Lord Commissioner of Her Katy Stout, Committee Clerk Majesty’s Treasury) † Philp, Chris (Croydon South) (Con) † attended the Committee

Witnesses

Jenny Beck, Co-Chair, Legal Aid Practitioners Group

Professor Richard Susskind OBE

Richard Miller, Head of Justice, The Law Society

Polly Neate, Chief Executive Officer, Women’s Aid

Penelope Gibbs, Director, Transform Justice

James Dalton, Director of General Insurance Policy, Association of British Insurers

Brett Dixon, Vice President, Association of Personal Injury Lawyers

Rob Townend, UK General Insurance Claims Director, Aviva 31 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 32

the traditional civil justice system. I have long been an Public Bill Committee advocate of thinking of different ways of resolving disputes. Tuesday 28 March 2017 It seems to me that one argument that is often put is that we are going to allow people who can afford lawyers and legal advice access to the traditional court (Afternoon) system, and those who use an online process will receive a second-class service, but our group—and, I believe, [MR GRAHAM BRADY in the Chair] the Government—anticipates a system that is more accessible, more proportionate, quicker, easier to use and does not require people to take a day off work or Prisons and Courts Bill pore through thousands of pages of rules, which seems to me to be a first-class service rather than a second-class Examination of Witnesses service. It may be that, from a purist’s point of view, one can see advantages in the traditional system—I am a Jenny Beck, Professor Richard Susskind, Richard Miller, great believer in the traditions of the law—but for Polly Neate and Penelope Gibbs gave evidence. small, low-value claims, I think what is proposed here will be a great improvement rather than some pale 2 pm substitute for the traditional system. The Chair: We will now hear oral evidence from the The implications for lawyers are very interesting. In Legal Aid Practitioners Group, Professor Richard so far as one of the great mischiefs sorted out here is Susskind, the Law Society, Women’s Aid and that of litigants in person—that is to say people who Transform Justice. We have until about a quarter past 3 represent themselves—then today lawyers are not involved for this session. Would the witnesses please introduce in the process in any event. So for both litigants in themselves for the record? person and for the great mass of people to whom we Richard Miller: My name is Richard Miller. I am often refer as having unmet legal need—those who head of justice at the Law Society. cannot afford or find too forbidding entry into the Penelope Gibbs: I am Penelope Gibbs, director of the system in the first place—there is no impact on the legal charity Transform Justice. profession at all, because the legal profession is not involved today. Polly Neate: I am Polly Neate, chief executive of Women’s Aid. As for the cases—they will probably be slightly higher value cases—that lawyers currently undertake, it is wrong Jenny Beck: I am Jenny Beck, co-chair of the Legal to suggest that lawyers will be excluded from the process. Aid Practitioners Group. There is a misunderstanding and ongoing debate about Professor Susskind: I am Richard Susskind. I am IT this. It has never been anyone’s intention that lawyers adviser to the Lord Chief Justice and I chaired the Civil should not be allowed to participate; the intention is Justice Council advisory group on online dispute that this should be a system that people can use without resolution. the assistance of lawyers. My research is in medicine, law, tax, audit and architecture, and I think there is no Q51 The Minister for Courts and Justice (Sir Oliver denying that right across the professions we are seeing Heald): It is a joy to serve under your chairmanship technology being used in ways that will reduce the again, Mr Brady. I thought I would start with some number of some traditional jobs. On the other hand, questions to Professor Susskind about the online new jobs will arise. procedure for civil and family courts and tribunals, As I often say, the law is no more there to provide a which is dealt with in clauses 37 to 45. Then, after living for lawyers than ill health is there to provide a colleagues have put their questions, I will perhaps deal living for doctors. It is not the purpose of the law to with cross-examination in family matters—clause 47— keep lawyers in a living. Lawyers, like all other industries, and criminal proceedings, which are dealt with in have to face the challenge of modernising and clauses 23 to 30 and 35 to 36. industrialising, and this is one of the consequences of Professor Susskind, I believe you have been the offering far greater access to justice through technology. technology adviser to the Lord Chief Justice for many years and you are an advocate for the law adapting to Q52 Sir Oliver Heald: Do any of the other witnesses modern technology. These proposals involve the use of want to comment on the online court for civil cases, digital processes, simpler rules and an online procedure family courts and tribunals and whether it improves rule committee to set them up. I wonder what your access to justice—the point that Professor Susskind just views are about whether the quality of this work will be made? as good as it is now—that it will not be not a second- Richard Miller: I think it has been readily accepted class system—and what you think are the implications among many people who have discussed this issue that for the legal professions. the system will work most effectively if there is good Professor Susskind: The motivation behind this is legal advice at appropriate points within the process. It interesting. If one thinks of low-value claims—say civil may well be that the role of lawyers in this revised claims—the current process is too costly, too time- system is very different, but people who are looking to consuming, largely too combative and largely unintelligible enter into any sort of dispute resolution system will for the non-lawyer. Lord Dyson, the former Master of want to know whether they have a good case, what the Rolls, put it well when he said that any system that evidence they need, whether any defence filed is valid has a 2,000-page user manual has a problem, and that is and how to respond to it. There will be key stages 33 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 34 within any case where good-quality legal advice will be with Penelope from Transform Justice. In your recent essential if the system is to work effectively, but that is report you looked at an evaluation of the use of technology not to say there will not be a different role for lawyers in the criminal courts back in 2010. The report said: within the system if it rolls out as is currently envisaged. “The evaluation of the pilot was published in 2010, and concluded that virtual courts as piloted were more expensive, may Q53 Sir Oliver Heald: Lord Justice Briggs said that it lead to more guilty pleas and longer sentences, and impeded the might be a role where a particular piece of legal advice communication between lawyer and client.” would be given and then fixed recoverable costs would As we embrace new technology, how can we seek to deal be involved, as a way of ensuring it could be funded. Do with those worries? you have any views on that? Penelope Gibbs: With huge difficulty. I would say that Professor Susskind: That is entirely feasible. I take the virtual hearings as done now are slightly different the point entirely that there will be places where it from the ones piloted in 2010 in terms of the cost would be beneficial to have the participation of lawyers. basis,but we still have a huge problem about the relationship It might well be that we can, in an online process, between the lawyer and the client. Every piece of involve lawyers in a more modular, occasional way, research that exists suggests that that communication is rather than an all-or-nothing way. If I am absolutely impeded. honest, we are to a large extent on new ground here. We The other huge problem that came up in that research, can look at what has happened in Canada and what is which was under-reported, was that actually it reduced happening in Singapore and Holland. We are feeling the number of people who used a lawyer. In that research, our way. I think only 52% or something of the defendants used a The overwhelming evidence is that online dispute lawyer, despite the fact that all had access to legal aid. resolution provides a cheaper, quicker, less forbidding So there was something about the circumstances of service, but no one in the world has yet delivered an doing it virtually that meant that they did not use a integrated service of the sort that the Law Society is lawyer, and I would say that the criminal system, in sensibly anticipating, where lawyers can be involved in a some ways like the civil system, is pretty unsuited to structured, systematic way in the new process. I would anybody not having a lawyer. It is very complicated and welcome that, but again, we cannot forget the swathes complex, the procedure is difficult and the law is difficult, of cases just now where people are self-represented or so there are huge concerns about having people virtually, do not go to law at all, and lawyers are not involved. nearly half of them without a lawyer, with huge decisions With online dispute resolution, there is the possibility being made about remand and sentence, and even the of lawyers becoming more involved in some of those proposition of trial in the Bill by conference call or cases that they do not reach at all now. virtually where you can see people.

Q54 Sir Oliver Heald: Perhaps I can ask one more Q56 Nick Thomas-Symonds: This is a follow-up, first question, before opening this up. Would you like to say for Richard and then for Professor Susskind. Should a word about the benefits of virtual hearings and dispute youth defendants be excluded from the Bill’s provisions resolution within this process? on virtual courts? Professor Susskind: It is important to drawa fundamental Richard Miller: There would be strong argument for distinction—I am doing it in my terms—between virtual that, yes. We see a clear difference between initial hearings hearings and online process. With virtual hearings, there in criminal cases where, for example, bail is being decided is a hearing: that is to say, there are people communicating and subsequent administrative hearings. For subsequent with one another at the same time, but they are not all administrative hearings—for example, where the client physically in one place; there is a video connection and has been remanded in custody and is already in prison— an audio connection. Technologists would call that having the video link from prison makes a lot of sense. synchronous. Everyone has to gather together, and it Our members report to us that those sort of virtual may not be in one physical space, but there is a hearing hearings work perfectly okay. and they are all attending it virtually. Online process is The real concern is around the initial hearings, where quite different. It is asynchronous: that means a party a whole range of interactions lead to decisions on, for can submit a piece of evidence and a judge can respond, example, whether bail should be granted. The lawyer but they do not all need to be online at the same time. I has to talk to their client and to the prosecution, and am not sure if the Bill or people around the table are they might have to talk to the defendant’s family. There completely comfortable with that distinction between may be ongoing discussions while the case is being virtual hearings and online process. They are very, very heard, with the magistrates coming up with ideas for different beasts. bail conditions that the lawyer needs to take instructions The virtual hearing, in a sense, is a natural evolution on. All of those interactions are very difficult to have from the traditional hearing. If people are vulnerable, if when you are holding a virtual hearing and the lawyer they are many miles away, or if it does not seem and the client are not in the same place. That is based on proportionate for them all to attend in person, why not feedback from our members who are involved in the attend by video and audio? That is the idea of a virtual existing pilot projects: they find those interactions very hearing. It is an extension of the current system. An difficult. There are real risks, and particularly when the online process is often entirely different. client is vulnerable it is very difficult indeed to build up that necessary relationship of trust between the defendant Q55 Nick Thomas-Symonds (Torfaen) (Lab): I want and the lawyer to ensure that the right outcome is to talk about virtual and online courts—I am with reached. Professor Susskind in recognising that they are very It is worth remembering that if in the hearing there different animals—in the criminal context. I will start is a situation where bail might have been granted 35 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 36 but because the necessary instructions cannot be taken attract a rehabilitation period, but they do not come up or necessary discussions cannot take place the client is in Disclosure and Barring Service checks. That is one of remanded in custody, that has a significant impact not the issues. only on the client but on the public purse. That is If we move on to recordable offences that do attract a particularly noteworthy, given that the Bill has as its criminal record, it is absolutely crucial that people are first part—the prisons part—a clear aim to reduce the given full information. A criminal record is not just a use of prison where appropriate and to make prison barrier to employment: it is a barrier to education, more rehabilitative. If we end up sending more people travel and housing. Also, something might be minor to prison who should not have been there in the first and recordable, and you think, “Oh well, that is okay,” place, that really is running counter to what we are but if you have two minor offences, they come up on a trying to do with the Bill. DBS check. So if you apply for lots of jobs, they will come up. It is a complex area, and it is crucial that the Professor Susskind: I want to answer the question in online conviction system does do that. a slightly different way. Incidentally, I think it is very It is also important that the system gives people an dangerous to make assumptions about the future based idea of what a viable defence is. There is an idea that on a report about technology that was written in 2010. people know whether they are guilty or not. It is true We are seven years on from 2010 and I presume the that they might have done the deed, but if they have a technology was from at least a few months, if not a legally viable defence, they have a good possibility of couple of years, before then. The transformation in being acquitted. This is a complex legal area, and it is video calls since then has been absolutely astounding. crucial that the online criminal conviction court should Think of the way in which we all use FaceTime and go through what a viable legal defence is, and refer Skype. We are now entering an era of telepresence—I people to legal agencies that could help with that. joke not. Recently, I offered someone a cup of tea when I was in a telepresence conversation with them by video. Q58 Sir Oliver Heald: Penelope, you mentioned the These systems are never going to be any worse: they are 2010 pilot, which was between a police station and the getting better and better. Strategically—and this is where magistrates court and which did reveal some interesting we have to have a collective vision—our role is not to lessons, such as how to schedule cases—that needed to think, “How was that technology X years ago when we be done better—the elements of a case that are best looked at it?” but rather, “How will it be in two or three dealt with by videolink, and the importance of technical years’ time?” It is only going one direction. quality and reliability. I am sure you would agree that, Is it not interesting when you think of youth, because since then, videolinks have been used successfully in the is that not such a common way for young people Crown court, magistrates court hearings and in many communicate now? Relationships are established other ways, and that the lessons have been learned. Now through Facetime and other similar types of videolinking. videolinks are better scheduled, they are used in a more The assumptions we make as “grown-ups”—as one targeted way, and the technology has improved. might say—about how we establish trust and communicate There are a lot of benefits to a videolink: for vulnerable comfortably with others cannot necessarily be carried witnesses it is often used as a special measure, it stops forward to people who have grown up in the internet people having to travel long distances, it stops the era, for whom the conduct of a meeting and interaction wasting of police time, and the professionals find it via video may be more comfortable and comforting and increasingly helpful to be able speak to their clients at give rise to a greater experience of trust than it would distance. Then there is the security side of it, which for our generation. Wehave to think of the next generation means you do not have a lot of people having to use too. prison transport. Do you accept that things have moved Frankly, the research is not in the justice system. It is on since 2010? like the research we do at Oxford Internet Institute— Penelope Gibbs: They have moved on in a tiny way. I considering how young people are using and adapting went to observe a court the other day and the videolink to technology. All the signs are that these technologies worked but the camera angle on the defendant was are becoming more and more powerful and people are towards the top of his head and he was quite distant more comfortable using them. from the camera. People had real difficulties understanding what he said. That was just a month ago. Q57 Nick Thomas-Symonds: I will just move to the I would like to talk more about that case— online criminal convictions—this is clauses 35 and 36 of the Bill. This is a general question to the panel. Do you Q59 Sir Oliver Heald: Before you go on, on that think there are sufficient safeguards in the Bill for point, in the Rolf Harris trial that recently concluded, defendants who use the automatic online conviction the video evidence was given from Australia. That meant process? For example, how could you make an offender the victims did not have to travel thousands of miles. aware of the consequences to their employment status Surely that is a benefit? of having a criminal conviction? What are the safeguards Penelope Gibbs: Can I distinguish between the use of to enable them to fully understand the consequences of videolink for expert witnesses and other witnesses and that guilty plea? defendants? There are different issues with witnesses, who will often benefit from a videolink, and defendants. Penelope Gibbs: That is a challenge. The Bar Council has suggested that only non-recordable offences should Q60 Sir Oliver Heald: Rolf Harris watched it from go on to the online conviction system, and I agree with prison. that. To an extent, that would resolve some of the Penelope Gibbs: It was his choice to do so, but in the criminal record issues, because non-recordable offences 2010 research, the evidence was that those who were on are not added to the police national computer. They can videolink got longer sentences. 37 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 38

On the police station videolink, it is worth going do not want people to think we are cutting and pasting backwards and saying, “Why are so many defendants the old rules online. The idea is that the system will be being detained by the police on quite minor charges?” governed by a very simple set of explicit rules, a lot of When I twice observed videolinks the other day, those which will be embedded within the system, so it will be people had been detained by the police, they are produced intuitive and easy to use. There will always be the hard in the videolink room and most of them were released to reach, those who do not use technology comfortably, immediately after that videolink appearance. One of for example, and the Government have in mind some the police stations that it was linked to was 15 minutes’ assistive technology services. I think we will need services walk from the magistrates court and the cost of the for people who otherwise would find the process difficult, journey—in the 2010 report; I do not know if it is the but for the lion’s share of people, who use Amazon daily same now—was only £35. For a defendant to be or perhaps renew their tax online, the system should not participating in their own process, it is worth £35 to get be complex in the sense of its having a vast body of them into the court, because all the evidence says it is a unintelligible rules. less good process. Also, crucially in the 2010 report, people on videolink got longer sentences. Q64 Nick Thomas-Symonds: I have just one brief follow-up question for Professor Susskind—I am grateful Q61 Sir Oliver Heald: Do you not accept you are for your patience, Mr Brady. How do you think the going back to the very early history of this and that whole online courts idea affects the principle of open since a whole range of videolinks have been set up in justice? prisons and in other places right across the country, as Professor Susskind: Again, we have to have a very well as in police stations? The whole thing has moved clear distinction between virtual courts and online courts. on in leaps and bounds over the last seven years. Penelope Gibbs: I do not think the basics of what was Nick Thomas-Symonds: I am asking about online looked at in the 2010 report have actually changed. Of courts. the lawyers I am in contact with, I have not met one lawyer now who thinks they can have the same relationship Professor Susskind: Okay. Online, my view is that we and the same communication with somebody who is on can make a system that is far more transparent. What videolink as if they are in the court with them. we have in mind when we talk about open justice is that members of the public—anyone—can scrutinise the Q62 Sir Oliver Heald: It has been made clear that process, understand the results and view justice as it is there will be safeguards for the online procedure. Although being administered. When I speak to the judges who are I accept they have to be done well, it is a procedure that involved in thinking through what the online process should be tried, given how simple it is for everybody will be like, they are entirely happy. For example, in concerned. Are you against even trying it? tribunals, an ongoing dialogue between the parties and the judges can be available online and scrutinised. The Penelope Gibbs: I am not opposed to online criminal decisions will be made available online. conviction if we are talking about non-recordable offences and if sufficient, very rich information is put on the net. I want to challenge the assumption that is often made I have many more concerns about online indications of that you need physically to congregate in a courtroom plea. for a service to be transparent. That is only really available to the public who live nearby. What we have in Q63 Nick Thomas-Symonds: Jenny, one of the critical mind is an internet-based service that could be subject things in the virtual court environment is that people to scrutiny and visibility by anyone who has internet and defendants understand what is going on within that access. It would be a different kind of transparency, but environment despite being on videolink. This is why I it is transparency none the less, giving far wider access raised a concern earlier about young defendants. How to the process. do you feel the cuts to legal aid and the proliferation of litigants in person will affect the way people are able to Q65 Michael Tomlinson (Mid Dorset and North Poole) understand what is going on when there is no lawyer (Con): I will pick up on a couple of points that have present either? been raised. Professor Susskind, you talked about Jenny Beck: It is a massive risk. The critical point is technology improving. Just to give you an idea, I can that those who are the most marginalised are the most remember using this technology myself in court as a affected. People who have difficulty understanding, people practising barrister—I am now a non-practising barrister— who have learning needs and people who have language both before 2010 and after. Since then, technology has difficulties are the most likely to be those facing the been improving on a daily basis. I was particularly most difficulty. I can see a split in access to justice as a pleased to hear that the west of the country seems to be consequence. In the absence of really targeted lawyer doing well in using technology. intervention at very strategic points, including the My specific question is directed towards Richard introduction of early advice across the board for people, Miller, and Penelope Gibbs as well. Richard, you were which would be a huge step in the right direction, from talking about concerns about defendants giving evidence a qualified lawyer via legal aid, you can get into a virtually. Do you accept the benefits of, for example, situation where people will be pushed to the margins vulnerable witnesses giving evidence virtually? For those and miscarriages of justice will result. who would be nervous or anxious about attending Professor Susskind: I want to highlight something court, all those anxieties can be put to rest and they can that is important in civil, family and tribunals, which is give evidence from a safe distance. that the introduction of the online process is to be Richard Miller: We do not have any major problem accompanied—this is crucial—by a highly simplified with that, subject to the judge’s overall control to ensure set of rules. That does not fully meet Jenny’s point, but I that justice is being done in the individual case. On the 39 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 40 concern about bail hearings in particular, it is not so Penelope Gibbs: They have to talk to their lawyer, but much the defendant giving evidence as the whole series I urge the Committee to go incognito into a court with a of interactions that have to happen during the hearing video link and watch what goes on, and then look at a and whether it is practical to accommodate all that court where you have the normal interaction with the within a virtual hearing. lawyer and the client; you will see that it is different. Every lawyer, at the moment, says that it is far more Q66 Michael Tomlinson: If it were possible to overcome difficult. Obviously, you talk to them beforehand, you that, for example by having proper briefings with lawyers talk to them afterwards—you go into a separate room in advance and debriefings after the hearings, that would or you clear the court or whatever—but there are various allay some of your concerns. Would that be fair? barriers with this. Richard Miller: Yes, it probably would. We would As I say, we are talking about people who do not obviously need to see the detail, but the main concern is understand the criminal justice system and the law to ensure that all those issues properly are taken into already. So I would say it is not ideal to be virtual, even account. if that person uses FaceTime the whole time with their friends. It is a different situation. We are talking about people’s liberty here, or whether they get a criminal Q67 Matt Warman (Boston and Skegness) (Con): I record for life or whatever. These are huge decisions and used to write about technology and in 2010 I covered people meet person to person on purpose for things that the launch of FaceTime. I wonder whether the panel are far more minor. collectively agree that commercial products such as that have fundamentally changed the way that almost the Q70 Matt Warman: Is not the other side of this, entire public engage with this kind of video communication? though, that for a lot of people the very process of Sitting here trying to put my old journalistic hat on, we travelling long distances to court, in many cases—I are talking about technology based on a report from think of my own constituents—is what makes the system 2010, but it seems fundamentally a different world. I intimidating and unapproachable? It is part of the suspect that Richard Susskind might agree, but I wonder problem and to some extent, particularly for the vulnerable whether Penelope Gibbs or Richard Miller could try to witness we talked about before, this can diminish those convince me that the technology of 2010 is even relevant issues. I suppose what I am driving at is that you are in 2017? making it sound like this is all bad, whereas actually you Richard Miller: I want to pose a challenge in response are even conceding yourself that some of it is good. to that: how far has the technology actually available in Perhaps we should be a bit more nuanced. the courts moved on from 2010 technology? The real Penelope Gibbs: Can I distinguish the views and issue is whether the courts actually have this up-to-date evidence about witnesses versus defendants? They are technology which, as you say, is leaps and bounds totally different parties with different dynamics going ahead of what was going on in 2010. on. Obviously, the defendant has much more to face if they are found guilty. Yes, it is difficult for witnesses: I Q68 Matt Warman: So it is not so much the principle am not opposed to witnesses appearing virtually, because as the technology? You were talking earlier, Penelope they are doing a different thing and it is a different role. Gibbs, about the angle of the camera and how well Even so, we have very, very little evidence in the way of people could be understood. Obviously, we would all research. want people to be understood and adequately On the 2010 report, it would have been great if the photographed, but that is a very trivial thing in comparison Ministry of Justice had updated that subsequent to to the principle of using digital technology, is it not? 2010 and so on. With witnesses, what we do not know, because we have not done the research, is what impact Penelope Gibbs: I use Skype, FaceTime, everything, this has on juries and on the process of the court case. I but still I think you will find in business, however much absolutely agree that it is probably, in most cases, a increase there is in the use of such things, that people better experience for witnesses, but I am also concerned will still get on planes and go halfway across the world that we need urgently to do some research to see whether to have a meeting with somebody. There is a consensus it has a negative impact on juries. With regard to that seeing a person in reality, as we are in this room, pre-trial cross-examination of witnesses, where it is not makes a difference, in terms of the relationship, the live during the trial and the jury does not hear the body language and so on. So I would ask, is it truly witness live, again, this might be a good thing for the necessary? witness, but we really need to know whether it is going Here, I repeat that we are talking about very vulnerable to have such a negative effect on juries that cases will people, who while they may be able to do FaceTime, collapse. certainly do not understand criminal law or the criminal justice system. They may be unrepresented, so while Q71 Matt Warman: Richard Susskind, as the other there may be extra barriers—they may have mental side of this argument, if you like, how would you health problems, learning difficulties, et cetera—all these characterise the evidence for this working better? mean that even when they are in the court they struggle Professor Susskind: When people say there is no to understand what is going on and how to participate. evidence, I often say there is no evidence from the If you put them at one remove, where they cannot talk future: we have not actually introduced the kinds of to their lawyer— system that many of us are anticipating. I suppose as policy makers, as politicians, what you are trying to do Q69 Matt Warman: Just to challenge you on that: is make our country a better place and embrace technology they have to talk to their lawyer in a different way. This where it is appropriate; I am not suggesting for a second is different, is it not? that one introduces technology for the sake of it. All the 41 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 42 signs, across so many corners of society, are that we can outcomes to justice in terms of this—and that this is not defeat problems of distance, overcome problems of a headlong rush into technology in which some participants excessive cost and make public services more accessible will actually suffer or there will be unjust results because and more affordable by using a whole set of technologies. of it. This cannot be polarised; it has to be something I was not for a second suggesting that because you that we discuss as we go along. use FaceTime to chat, that means you should use Professor Susskind: I accept that it cannot be polarised. FaceTime. I was simply making the point, and there is You obviously invite people along who are likely to take other research—this is not anecdotal; it is good empirical a position, and my position is a position of change. I stuff—to suggest people would prefer to see their have been involved with this for 35 years, suggesting psychotherapists; people would prefer to see their doctors. that technology should be used more in the court system. People actually like some of the distance that the technology I cannot say for a second that anyone has ever been puts in place. A lot of assumptions are made that rushing in; it has been a very slow, arduous and sometimes somehow the technology is putting people at one remove. painful process. In fact, people feel more relaxed. I travel the world, have spoken in more than 40 countries I think there is sufficient evidence elsewhere to suggest and visited courts. We are, in this country, falling behind that this is a proportionate way of resolving a great other courts, so we cannot be accused of rushing in. I many of the disputes and problems that arise in a highly fully agree, however, that to jump ahead in a foolhardy physical courts system—a system, incidentally, that is way would be silly. I am simply pointing out, and will inaccessible for many millions of people who are disabled say again, that in the context of civil law the current or who can attend only with great difficulty. It seems to system is inaccessible, unaffordable and unintelligible—full me intuitive in the 21st century—I agree that we need to stop. It seems to me worth at least introducing some of undertake research as we go along—that in a measured these new procedures to offer access to people who and controlled way, we introduce modern technologies would otherwise never have had it. I do not find that as we are doing right across society. I cannot provide contentious; in fact, on civil, I do not think I have been evidence from the future, but I can say that in so many hearing great opposition to it. other areas this seems to be a sensible direction of travel. Q74 Liz Saville Roberts: Forgive me, but what would Jenny Beck: Could I make a very small observation the checks be as we change from one very well established from the coalface? I am also a practising lawyer. I use a and familiar system to a new system? What will be the lot of technology because I am a legal aid lawyer and, checks from day to day that they are operating properly? as a consequence of the advice deserts that have popped Professor Susskind: Are we talking about the civil up all over the place because of cuts in funding, we system or the criminal system? Because if we are talking often have to see people via FaceTime or take instructions about the civil system, I have to come back at you. You over the telephone. It is absolutely a fact that the most say that it is a very well established system, but my view vulnerable people find it less easy to access their justice is that it is a system that suffers from very serious via those mechanisms. I am not saying there is not a difficulties. place for this, but it is a fact, in my experience, that that is the case. The last research was shown to suggest that 1 million people every year have justiciable entitlements and do Q72 Matt Warman: But these are the greatest challenges not, or cannot, pursue their rights in the civil justice for digital inclusion full stop, are they not? This is not a system. We have vast numbers of litigants in person unique problem for justice. who really struggle to understand the system. If our Jenny Beck indicated assent. system was great just now, I would be very hesitant about saying we should replace it with technology. Q73 Liz Saville Roberts (Dwyfor Meirionnydd) (PC): If this is taking a polar position, I am happy to take What is very interesting about this discussion is that we one—we have a civil justice system just now that is seem to have become very polarised in favour and inaccessible for the overwhelming majority of citizens. I against. It strikes me that perhaps we need to take a step want to say to you that it is surely worth introducing, back and look at the other considerations that need to for some low-value claims, a new way of offering access be brought in to make this effective and not a risk in to judges and then monitoring it very carefully—maybe terms of justice outcomes. that is the point you want a response on. I think it is If I may, I will make this slight comparison. I used to vital that we do ongoing research. The point is well be responsible for teaching through video non-traditional made that we need to understand the impact as we go A-level subjects—through the medium of Welsh, as it along and we need be willing to change direction. happens—to widen their accessibility, to 15 secondary As for the evolution of technology in the private schools in Wales. Of course, we constantly had the sector and the public sector, we are not architects. You check of the results and seeing how the students who cannot design the finished building and say, “Here is were being taught by video performed in comparison what it is going to look like.” It is a bit of a journey. If with the conventional teaching method. There is great you are hesitant about starting the journey because we potential in technology, as is being discussed, but I do not have the checks and balances in place—we need think there are issues in relation to the vulnerable and to have the checks in the place. I think you will find that there are age—generational—issues as well, without most leaders, both in the public and private sector, have beginning to touch on the nature of technology in some a sense of direction and say, “Let’s start this together, of our rural areas. monitor carefully and ensure we are delivering the What worries me, and what I would like your opinion benefits.” It seems to me that the option of saying, on, is how we bring this in and have the checks and “Let’s not change at all because we cannot be certain balances to assess the research—whether there are different how it is going to unpack,” is not an attractive one. 43 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 44

The discussion we should be having is how we ensure, something to her that is extremely traumatic but to with all these new technologies, that we are monitoring anyone listening it would not necessarily appear to be their impact, and that there is an appropriate hand on abusive, on the face of it. That is why we say that the the tiller when it seems it is taking us in different practice just has to be banned, because as an onlooker directions. you cannot necessarily tell the meaning of what is being said between those two people, particularly—this often Q75 Liz Saville Roberts: Could you recommend what happens—after years of abuse and coercive control of form that should take? all kinds, and psychological control in particular. Professor Susskind: I am bound to say this, because in part I am an academic by background, but I think we Q77 Sir Oliver Heald: We have been very grateful to need to move beyond anecdote. I can tell you what I work with Women’s Aid on this issue and for the help heard in the court room that I visited—it was nothing that you have been giving in trying to help with the like what was heard over here—but actually, what each training of those in the family justice system. Do you of us says as individuals is less important than engaging think the provisions in the Bill will help, and do you serious researchers to undertake attitudinal surveys and have any more that you feel needs to be done in terms of surveys of people who have been through the process. guidance and the judiciary? That is the kind of work that we have seen someone like Polly Neate: Absolutely, the provisions in the Bill will Hazel Genn at UCL doing over the decades— help. As you know, we very warmly welcome the move understanding why people go to the law, how they feel that has been made; I think it will make a big difference. when they have been through the process and whether We work on this issue with quite a number of women they have confidence in the system. who have been through this experience and their reaction I have been strongly advocating, even for the civil to the news that this is coming in the Bill has been quite system that I have recommended we introduce, that we amazing; there has been a very big kind of welcoming should not rush in. We should think big, but start small. from women themselves. That is really important. We should start small, monitor, evaluate, undertake The only bit where I think we really need to take care serious academic empirical research, report back, invest is the level of judicial discretion in the other cases. So, where things seem promising and be prepared to accept we know that where an alleged perpetrator has already if developments do not work out. We do not have the been convicted or charged, or where there is an injunction evidence yet so we have got to kick-start it somewhere. in place,automatically they will not be able to cross-examine This, for me, is a call for an incremental—the technology the witness—the victim. However, there are other cases would say an agile—modular step-by-step approach. If that will rely on judicial discretion and I guess my I was getting the sense that the Government were advocating concern with that is, as I said, the understanding of a big bang—one single system, architect in advance—I judges. Their understanding of domestic abuse is what would be very critical of that, but that is not the they will have to draw on in order to use that discretion. approach being taken. Very often their understanding is simply extremely inadequate, to be completely frank—particularly their Q76 Sir Oliver Heald: I was hoping we might move understanding of coercive control, which is the key on to clause 47—the cross-examination in family justice. issue here. I was hoping to ask Polly from Women’s Aid, who is sat Either the ban on cross-examination has to apply very patiently, one or two questions about this. Polly, whenever domestic abuse is alleged, which would be our could you give us a sense of the harm caused by victims preference, or it is really vital that training for judges is being cross-examined in person by alleged abusers in absolutely ensured, and also that there is much better the family courts? access to special measures in protection as well, so that Polly Neate: It is hard to overstate how harmful it is, the whole family court estate and system can be much actually; it is genuinely traumatising. In particular, it safer for survivors of domestic abuse. makes it very difficult for the family courts to play the role they should play, which is to put the child’s best Q78 Sir Oliver Heald: Jenny, I know that the Legal interests first, when usually the mother of the child is Aid Practitioners Group has been very involved with not able to advocate adequately because she is being this issue, as well. questioned by somebody who has put her through Jenny Beck: Yes, we have. abuse—sometimes, years of abuse. The other thing that is really important to understand Q79 Sir Oliver Heald: I do not know whether you about this—this is what is worrying about judges’ would like to say something about all of those issues. understanding, if I may say so—is that domestic abuse Jenny Beck: Yes, please. I echo all the points that is not all about incidents of physical violence; it is all Polly has made. I am also a family practitioner, so I go about control, and coercive control. The family courts to court a lot and specialise in domestic abuse work. are being used, if you like, as an arena for perpetrators Last week, I had a client who did not give evidence in to continue to exert the control over their partner or the case concerning her children, because she was terrified former partner, and in particular they are using child of being cross-examined. I know that the applicant in contact proceedings as a way of continuing to exert that that case deliberately was unrepresented in order to be control. able to cross-examine her. That is a hands-on example So it is not only that the person might be overtly of exactly what is happening, which is that perpetrators abusive towards the survivor in the court, although that are using the court process to effect further abuse on happens unfortunately. It is also that there are like their victims. We all know that; it is commonplace. It is trigger words and almost code words that a perpetrator not a special trick; it is very well known, so this is a can use when talking to the victim, which will mean hugely welcome move in the right direction. 45 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 46

Equally, I would like to see a widening of the last members of the family, which very often includes the provision for the other cases to make sure that the children. I want to back up that point, which was very representation covers the victim cross-examining in those well made. cases as well, because that is not quite as clear as it is in I can think of no reason other than cost for the idea the first two clauses. The reciprocity is quite clear in the that someone has to have his day in court. I think that first two clauses, but in the other cases there is a concern notion needs to be done away with altogether. There is because, although legal aid is still available for victims no circumstance where that could possibly be a good of domestic abuse, there are still people who are not idea. able to get it, because they have not got the right gateway evidence or because they are excluded on the Q83 Nick Thomas-Symonds: Jenny, I see you nodding. basis of means or unable to make a contribution. It Do you share that view? would be a perverse situation if you found that the Jenny Beck: Yes. I would also add that it is in the perpetrator were able to be represented and the victim interests of justice being done, of equality of arms and were not. of ensuring that the system is fair. Any area where justice is not done because one person is unable to Q80 Sir Oliver Heald: As you probably know, on represent their case properly—it does not really matter the evidence requirements, we have made partial which discipline it is—lacks fundamental natural justice. announcements and we are reviewing it with the aim of If we can do something to avoid that by putting measures making a fuller announcement fairly soon. in place to ensure that the evidence given is proper and Polly Neate: Which is also extremely welcome. robust, why would that not happen?

Q81 Sir Oliver Heald: Richard Miller, do you want to Q84 Nick Thomas-Symonds: The point presumably is come in? that the court should never become an instrument for the extension of coercive behaviour. Richard Miller: Wealso very much support the proposals. One of the issues that has been of concern, but I think Jenny Beck: Exactly, although there are a couple of is understood, is that there is a lot of comparison with ways in which that happens; it is not just in the cross- provisions in the criminal courts. However, in the criminal examination of expert witnesses. Perpetrators also prolong courts, the victim is a witness in the case who comes in cases and bring additional unnecessary litigation within and gives evidence and leaves, whereas in the family family cases, but this is certainly a welcome move in the courts they are a party and there is interaction throughout right direction. the entire process. It means this is a different situation Penelope Gibbs: I think this is an excellent initiative; it with more scope for harm to be caused to victims of just brings a question mark for me. If the person is to domestic violence within the family courts. We would have aid cross-examining throughout a family case, why want to continue to have dialogue to ensure that as should they not be legally aided in the first place? It much protection as possible is given in those circumstances. seems to me that the Government will probably spend We have identified a couple of specific points that we as much paying the lawyer for their interventions in want to think about a little further. For example, the helping cross-examine as they would if they legally first provision talks about instances where someone has aided the person. been convicted or charged. We wonder whether that Q85 Nick Thomas-Symonds: Richard, can I come to ought to cover instances where they have been cautioned you on the issue of funding? Clearly, there will be a for the offence as well. That is something that might be court-appointed advocate who needs to be funded, but added in. one curiosity is that the funding of the court-appointed The other issue that has struck us is that this protection advocate is left to regulation; it is not in the Bill. Do you will apply not just to the victim but also potentially to think that it would be helpful if it were in the Bill, given other witnesses, such as a child of the family who has how crucial funding is? witnessed some of the alleged abuse. In that situation, Richard Miller: Potentially. This issue is very much in the child could be called on behalf of either party and the criminal sphere at the moment, because there is a therefore the issue might not be strictly cross- examination. proposal substantially to reduce the payments for advocates That may also need to be looked at to ensure that who carry out this role in the criminal courts. One adequate protection is there for all the vulnerable witnesses concern is basically that the market will speak—if the we are trying to protect. rates are set at too low a level, you might find that lawyers are just not willing and able to undertake these Q82 Nick Thomas-Symonds: Clause 47 is very welcome. cases. It is vital that whatever rates are agreed for this These protections have existed in the criminal courts for work are sufficient to enable advocates of suitable quality some time and to have them now in the family courts is to conduct it. At the moment, we think that it is an issue absolutely right. Starting with Polly, what is your view of potential concern that we will not be in that position on extending that principle to the civil courts more in the criminal courts if the proposals go through as generally, even beyond simply the family court? currently suggested. Polly Neate: This is why in the other cases where there was judicial discretion, I said we should discuss Q86 Richard Burgon (Leeds East) (Lab): I have a any alleged perpetrator of domestic abuse, where question for the representative of Women’s Aid, then there is an allegation. I cannot see the benefit in any two questions on employment tribunals. Polly, are you situation of any perpetrator of abuse being able to use in a position to comment on the effect of the nature of any court directly to question or cross-examine the the MOJ estate on the elongation of abuse or coercive victim or the children in the situation. Coercive control behaviour? It seems to me that there may be an issue does not only exist between a couple, it is something with the layout of family court buildings and other that is deliberately exerted by one person on the other things. Regardless of the welcome change set out in 47 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 48 clause 47, which you also welcomed, is there anything Penelope Gibbs: I sat as a magistrate myself, so I am that you would like to add about issues such as waiting very much in favour of the use of lay judges in our rooms and so on? justice system. It gives a different perspective from that Polly Neate: Absolutely. That is the kind of thing of people who are part of the paid judiciary, of great that I was referring to when I talked about the need to quality though they are. I also have concerns about look at special measures as a backdrop to this. The judgments made by people sitting alone. If you have court reform process now provides an important two or three people discussing something, they can hear opportunity to improve the family courts’ ability to something, notice something, or bring a perspective provide special measures. We believe that that should be that is very relevant to the decisions made, which is why a priority.Separate waiting areas are an obvious example. we have benches of three magistrates. So I have huge In the surveys that we have done of women who have concerns, and I also see it, I am afraid, as part of an been through the family courts and who are survivors of ongoing diminution of lay justice, in that it is reducing domestic violence, abuse within the court estate is incredibly or, potentially reducing, lay representation on tribunals common. Again, because of the coercive controlling while, at the same time, the number of lay magistrates nature of domestic abuse, sometimes it is not visible. has fallen by a third in the past eight years. I will give you an example. I spoke to a woman who Richard Miller: From the point of view of the Law was in the same waiting room as her ex-partner throughout Society, when the proposal was originally consulted on, the whole time the case was going on, and any time she it was certainly read as suggesting there should be a moved anywhere in the building, he would leap up and default position of a single person deciding these cases, hold the door open for her as she walked through. To rather than the panel of three, and the Law Society was her, that was incredibly intimidating. He was constantly extremely concerned about that. It was particularly in there whenever she went anywhere in the building. the context of mental health tribunals and social security Anybody watching would not necessarily have seen that tribunals that we got very strong evidence from our as abusive behaviour, but in fact, given the history of members as to the benefits of the additional participants the relationship, it was extremely intimidating behaviour. in the panel. It is something that has significant benefits If there had been separate waiting areas, it could not across the board. Having it as a discretion for the senior have happened—so, absolutely, it is very important. president of tribunals is a much improved position from the idea of a default that there should be only a single Q87 Richard Burgon: On employment tribunals, I person, but it is worth further thought as to whether it is would be interested to hear what Richard Miller from extending the use of a single person panel further than the Law Society has to say. Our position on employment is appropriate. tribunal fees is well known. We would abolish the fees that were brought in in 2013 because we believe, among Q89 Nick Thomas-Symonds: Penelope, you mentioned other things, that they have a really negative affect on that you sat as a lay magistrate. There is a provision in access to justice, with a 70% reduction in cases being the Bill that abolishes local justice areas, which means a brought. Richard, are you in a position to give your magistrate will not be allocated now to a particular view on the effect of the introduction of employment area. Can you comment on the morale of lay magistrates tribunal fees on access to justice in the employment at the moment and how you think it will be affected by courts? the abolition of local justice areas? Richard Miller: The Law Society is well aware of the Penelope Gibbs: The actual effect of this provision in research showing the 70% reduction, and what is more terms of whether benches will be abolished is not quite significant about the figure is that there has been no clear. I would say if it becomes a situation where local change in the proportion of successful cases. That means benches of magistrates are abolished, that is a big that legitimate cases have been deterred in the same problem. Already, there have been many amalgamations. proportion as frivolous ones. We think that the evidence Magistrates like to be part not only of their community makes it crystal clear that a lot of people who previously geographically, but to be part of a community of would have had access to tribunals to get justice in magistrates. Therefore, even if we create a single justice employment disputes are now not getting it. area, I would say it is very important that benches remain, from the point of view of the morale of magistrates Q88 Richard Burgon: That is very useful. My final but also being able to communicate and have links to question is to Richard Miller,and to Penelope in particular, local agencies and people. Without benches, who is the if she has any thoughts on this. Clause 52 of the Bill local community supposed to go to when they want to talks about the composition of tribunals. As a former interact with magistracy? tribunal lawyer, I very much did not welcome—and Labour Members do not welcome—the reduction in the use of tribunals and the increase in instances of The Chair: There are no further questions. I thank all judges sitting alone. We do not make that point out of the witnesses for their evidence and we will move on to any partisan pro-employee or anti-employer position—we the next panel. are, of course, not anti-employer. It is very useful to have an employer representative and an employee Examination of Witnesses representative there to provide real-world experience to James Dalton, Brett Dixon and Rob Townend gave evidence. assist the judge. Clause 52 commits the senior president, or the president, of tribunals to extend even further the 3.8 pm type of cases in which employment judges would be sitting alone, further undermining the tripartite nature The Chair: I welcome the next panel of witnesses. We of the tribunal. Do you think that the Committee will now hear oral evidence from the Association of should amend that? British Insurers, the Association of Personal Injury 49 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 50

Lawyers and Aviva. We have until 4.30 pm for the Q94 Sir Oliver Heald: Say that Mr Dixon says in a session. Please will the witnesses introduce themselves moment, “No, these are all genuine claims, and anyway for the record? they haven’t gone up; they’ve gone down.” That is Brett Dixon: Hello, I am Brett Dixon. I am the something I have heard said. What would you say about vice-president of the Association of Personal Injury that? Lawyers. We are a not-for-profit organisation that looks James Dalton: I am sure Mr Dixon will say that. He is out for the interests of injured people. being selective with the numbers he is using. There is Rob Townend: Hi, I am Rob Townend. I am the UK absolutely no doubt that the number of whiplash claims claims director for Aviva. has decreased. That is true—it is what the Compensation Recovery Unit statistics will tell you—but at the same James Dalton: I am James Dalton, the director of time that the number of whiplash claims has gone general insurance policy for the Association of British down, the number of back injury claims has gone up Insurers. significantly.Claimant lawyers re-labelling what is essentially the same injury as a back injury rather than a whiplash Q90 Sir Oliver Heald: Let us start with you, Mr Townend. injury does not mean that the claim has gone away. In recent years, since 2005, we have seen a fall in the number of road accidents, we have seen safer vehicles Q95 Sir Oliver Heald: The circumstances are the and we have seen a more than 50% increase in whiplash- same, are they not? A shunt up the back, and then it is related claims. Can you put this in perspective and tell described as a back injury rather than a whiplash injury. us what you think the problem is and whether you think James Dalton: Correct. our tariff system is going any way to solving it? Rob Townend: The first part, yes, we have seen a Q96 Sir Oliver Heald: Well, Mr Dixon, are you going reduction in road traffic accidents and an increase in to tell us what I predicted, or do you disagree? injury claims. From our perspective, it is the easy access to cash that has created the problem. In terms of your Brett Dixon: No, I was going to start by correcting tariff, I think that will go part way with the other parts something Mr Dalton said. It is not the claimant’s of the solution to deal with the problem around whiplash lawyer who enters the details for the Compensation in the UK. It is interesting if you look at places such as Recovery Unit; it is the defendant’s representative. If Germany, where injury claims have fallen in line with a they are being entered as back injuries, it is the defendant’s reduction in road traffic accidents. representative doing so. I am aware of that as a practitioner. The Government CRU statistics seem to me to be crucial to understanding this. If you look back— Q91 Sir Oliver Heald: On what you think the problem is, you said “easy access to cash”. Would you like to Q97 Sir Oliver Heald: Can you explain what it is, in explain the whole thing a bit more fully? case anybody here does not know? It is the DWP, Rob Townend: The insurance industry has been part isn’t it? of this in settling claims too quickly. Some of that has Brett Dixon: It is. If you have an injury claim, the been an attempt to avoid ongoing costs. A whiplash defendant’s representative informs the DWP—the claim can get anything from £1,500 to £4,000. It is quite Compensation Recovery Unit—that a claim is being difficult to diagnose whiplash, so the propensity for made. Then there is a mechanism for the Government claims has increased over the last 10 to 15 years. to recover costs such as NHS costs or benefits paid because someone has been unable to work. It is important Q92 Sir Oliver Heald: What do you put it down to? that the money from the person who has negligently What is actually going on? caused harm finds its way back into the Government Rob Townend: I think it is claims farming, nuisance system, rather than the Government and the taxpayer calls and people drawn to easy money. I think it is footing the bill, but what is important about those everything from “cash to crash” gangs to opportunists. statistics is the simple fact that they effectively record Claims management companies are driving up claims the number of claims that go through the whole court and incentivising people to make claims. system as well as claims settled before the court system. If you look back six years, you can see that the Government figures show a 41% decrease in this type of Q93 Sir Oliver Heald: What about you, Mr Dalton? whiplash claim. If you look at it in terms of neck and Do you agree? Do you think the tariff system will help? back—there are different recording mechanisms; they James Dalton: I think the way Mr Townend has are all available and there to be seen—there is an articulated the problem is exactly right. The behaviours 11% decrease over a similar period. The ABI’s own that he described are symptomatic of a system that has statistics also show that since 2013, which is roughly too much money in it and incentivises lawyers to farm after the last major set of reforms, the cost of dealing claims and to push claims into the system for insurers to with these types of claim is down 12%. They are saving pay, which drives up the cost of car insurance for approximately £500 million per year. There is not an everyone. issue in terms of cost. In terms of the Government proposals in the legislation, I would urge the Committee not to be taken in by the the tariff system is an important mechanism to provide hyperbole prevalent in the sector and think how we as a clarity to claimants about the amount of damages that society we would want to deal with someone who has they will receive. That is an important clear signal to been genuinely injured as a consequence of somebody claimants in terms of ensuring that they get some else’s negligence. There should be consequences for compensation for the injury that they have suffered. wrongs, and insurance is there and takes a premium to 51 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 52 cover people in those circumstances. If there are issues Q102 Richard Burgon: So there is no figure at moment with people pursuing claims that are not genuine, that is about how many of the 97 competitors have adopted a completely different thing for the Committee to look Aviva’s approach? We do not know whether it is a at. We should not impact on genuine people and the minority or a majority of them? fabric of our society in an effort to deal with that James Dalton: There is no figure. problem. Q103 Richard Burgon: Finally, I would like to ask Q98 Sir Oliver Heald: So, Mr Townend, you are each of the panel members, starting with Brett, why, in exaggerating the figures and these are genuine claims. your opinion, the Government do not seek to better Rob Townend: There is point around it being a choice regulate claims management companies, which unlike for society—that is the one thing we agree with—whether solicitors are free to cold call potential customers? people want to pay for these claims in their premiums; Brett Dixon: In my opinion, the Bill is a missed whether they want the ongoing nuisance calls; whether opportunity to deal with the real drivers of these types they want the fraudulent and opportunistic claims. We of claims, and that is claims management companies. I seem to think of this as victimless crime where people can see the argument that, in some respects, if you do are not injured, but we have to defend our customers not regulate claims management companies—which we from spurious claims through the courts. We have would firmly support—and you do not ban pre-medical had serious injuries and fatalities related to “cash for offers and cold calling, you are creating a circumstance crash”. where someone who does not have a genuine claim In terms of the volume point, our volumes have been might see this as a one-way bet. By that I mean that you flat for the last three or four years. We still see significant might be encouraged by a claims management company variations between different areas of the country in to make a claim. I am told that insurers make pre-med terms of injury as a proportion of total claims. Somewhere offers without any medical evidence and you can, in like Exeter has 20% of road traffic accidents with an effect, make it up and not be able to be called to injury. If I go to Manchester, it is nearly two and a half account, because you can stop before there is medical times that. Why do they have weaker necks in Manchester evidence. If you take rogue claims management companies than in Exeter? The road traffic accidents are no different, out of the equation and ban this insurance-led practice so that tells you the extent of the problem. of making pre-med offers then I think you deal with most of the problems in the sector that we are hoping to Q99 Sir Oliver Heald: If there are some savings here, deal with through the Bill and maintain the position of is it right that Aviva has said that they will pass them on the genuine claimant who wants access to justice. to the customer? Rob Townend: Absolutely. We will guarantee to pass Q104 Craig Tracey (North Warwickshire) (Con): I on 100% of the savings through the premiums. shall start with you, Mr Dalton. Obviously,the Government are keen to get a definition of whiplash in the Bill, and I think it will be key to this being successful that we get Q100 Richard Burgon: Can I just start by clarifying that definition right. Does the current framework definition with the Aviva representative that Aviva has chosen to hit all the right spots, or should we be looking at pass that saving on? That is not compulsory; it is your something else? organisation’s choice to do that. James Dalton: This is a critical point. Clause 61 Rob Townend: It is our commitment as an organisation. defines whiplash: we have some significant concerns, Most of you are aware of how the market works; it is a which go to my earlier comment that the definition highly competitive motor market. There are a lot of does not adequately include cover for back injuries: it underwriters and business providers. Whether claims includes neck and upper torso but does not include costs increase or reduce, they typically flow through to back. We think that is a really important part of the our premiums. jigsaw that needs to be included within this legislative framework, so that you capture the right type of claims. Q101 Richard Burgon: Tothe best of your knowledge— The risk if you do not do that is that whiplash injuries obviously, you will know all about your competitors—is will become back injuries and they are not covered by Aviva in a minority in taking this position to pass on the this legislation. saving? Rob Townend: I have the same answer, really. We do Rob Townend: I know others have. I do not know not want to see a loophole where back is excluded and whether James knows more. you end up with two systems, one for neck and upper James Dalton: There are firms that, like Aviva, have torso and one for back. It adds complexity and reduces committed to pass on the savings. As Rob said, the the number of claims that are caught by the legislation market is highly competitive. There are 97 businesses in by about 60%. the UK that write car insurance. If one firm fails to pass Brett Dixon: Clause 61, particularly clause 61(1), on the savings—that may happen—the premiums charged does contain provisions for further regulations. I think by that firm will be higher, so consumers will switch. it is important to understand what is intended in the There is a report out from the Competition and Markets regulations and how that would interact with it. I sound Authority this morning that indicates that over 80% of one note of caution as a practitioner: it would be within consumers use a price comparison website each year to the realms of a medic or a medical expert to define what shop around for insurance. It is a highly competitive whiplash is. If you were to ask a medic, or you were to market, and the dynamics of that competition will ask a lawyer to give a go at what a medic would say, they ensure that savings are passed on to consumers. would say it is soft tissue injury to the upper torso and 53 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 54 neck that has been caused by hyperextension or important need to reform the system and we look hyperflexion. The mechanism is as important: some forward to seeing the Government’s consultation on thought needs to be given to involving a medic in the that in due course. Inevitably that has already led to way that regulations are drafted. That is the most increased car insurance premiums and an increase in important point. the insurance premium tax. This makes it even more important to progress these reforms in order that premiums Q105 Craig Tracey: What about the MedCo definition? will not go up as much as they would were you not to Brett Dixon: The MedCo definition is something of a proceed with these changes. work in progress in many respects. There is a definition It comes back to the society question: do you want to there that has been imported into the civil procedure live in a society where you have a claims culture and rules and this draws in part from it. Just because it exists compensation system that drives the sort of behaviours in the civil procedure rules and is used for MedCo does that Rob Townend was describing earlier. I think the not mean that this is either a good starting point or the answer that most consumers give to us is that they are way to go. This is an opportunity to define it properly sick and tired of the cold calling and the text messages. by using and involving medics. This is the system that drives them.

Q106 Craig Tracey: What are the consequences to Q108 Nick Thomas-Symonds: I have two points, insurers if you get the definition wrong, in terms of Mr Brady, and the first is to Brett Dixon. The small additional cost? Has there been any analysis of how claims track limit of £1,000 has been there since 1999. If much more that will cost insurers? you increased it by the same rate as the consumer prices Rob Townend: You will see displacement of claims index, you would end up with just under £1,500. If you from purely neck injuries to back injuries. The analysis increased it by the same rate as the retail prices index, we have done suggests that 60% of the claims that are you would end up with just under £1,600. Do you think currently wrapped under small soft tissue injuries will there is any justification for going to £2,000 in most drop out. Without the displacement impact, where people cases and £5,000 in whiplash cases? will claim, I think it gives a loophole for fraudsters and Brett Dixon: I do not think there is any justification I do not think it will help to reduce nuisance calls. for it, to be perfectly frank with you. The use of a small claims track system is to identify those claims that Craig Tracey: Any other thoughts? somebody can deal with on their own, rather than it being about a monetary value. If you introduce changes James Dalton: No. I think the revised regulatory to the small claims track at the same time as altering the impact assessment from the Ministry will be extremely court system to provide hearings at a distance—video important for understanding the extent to which this evidence—you are going to make it incredibly difficult definition will deliver the Government’santicipated savings. for a litigant in person to deal with and understand all Because I do not think it will, for the reasons I have those issues on their own. already explained. So if we do stick with this definition, the regulatory impact assessment should show that. Remember, the defendant who has paid an insurance premium has a right to call on those insurers to provide them with legal representation. I always think of it as Q107 Craig Tracey: That brings me to the cost. We being the person in the dentist’s chair on their own—that have already said that Aviva has said that it will pass on is what you would be as a litigant in person against the cost, as have other insurers. It was based on a well-represented opponents. I think that there is no £40 figure, wilfully, at the time, but I think that figure justification, either monetarily as you have put it, or on was based on the complete removal of soft tissue injuries. the basis of the purpose of a small claims track. Has there been a re-evaluation of likely cost? What is the impact on other things such as insurance premium Q109 Nick Thomas-Symonds: Perhaps Mr Dalton tax rises and discount rate changes, which we will could answer another question. You are talking about obviously see? You can pass on a saving but that does a claims culture and all the rest of it. When we are not necessarily mean a lower cost. talking about fraudulent claims, if there is sufficient Rob Townend: Let me deal with the exclusion of evidence to plead fraud—and I appreciate there has to back, which has the biggest impact in terms of how the be a bar to plead fraud—the defendant lawyers, whoever definition is written. Having a tariff instead of removing they are, will plead the fraud and it is either proved damages in its totality has a smaller impact. I think our before the court or it is not. I can remember my own analysis—we can share it properly with the Committee— involvement with these cases. You will have a number of was £4 or £5. So the bigger impact is in the reduction of cases where fraud has been definitively proven. Beyond back. The second part of the question was— that, any statistics are just based on suspicion, aren’t they? Craig Tracey: It was around other impacts such as IPT rises. James Dalton: No, not really, because the ABI Rob Townend: The environment around motor pricing produces statistics which indicate the number of detected at the moment is really dynamic. IPT has been going up fraudulent motor claims each year. In 2015, the last and the discount rate has significant impact on premiums year for which statistics are available, there was £800 million for larger injuries. Adding these together, the opportunity of detected insurance fraud and there were around to offset premium increases with a reduction in the cost 70,000 cases. However, I think the really important of whiplash claims would be beneficial to consumers. thing to think about in this context is whether the James Dalton: We have been very public about our reforms are designed to address fraud. I think that they view that the decision to reduce the discount rate to the will help to address the fraud issues that you have extent that it has been reduced is absurd. There is a very articulated, but again it comes back to the societal 55 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 56 question: do you want the text messaging, the spam point where we think the claim is linked to a gang and is calls and that type of environment, with the money in spurious. We do not pay one in 10 of our whiplash the system that drives those sorts of behaviours? claims at Aviva.

Q110 Nick Thomas-Symonds: In how many of the Q113 Suella Fernandes: Does Mr Dixon wish to 70,000 cases where you say fraud was detected were the comment? frauds actually proven before the courts? Brett Dixon: Yes, I would—thank you. James Dalton: I do not have those statistics. Each In some respects, the debate has moved on from insurer will decide whether they take further action; fraud and low-velocity impact. That is because of the maybe Rob can explain how Aviva approaches it. Each provisions that were enacted in relation to fundamental insurer will make a decision as to how they deal with the dishonesty, which are in the civil procedure rules at case in question. rule 44.16 and in section 57 of the Criminal Justice and Courts Act 2015. Q111 Nick Thomas-Symonds: But you just made a If a defendant thinks that there is fundamental dishonesty statement about 70,000 cases of detected fraud and you involved in a claim, they have two opportunities to cannot even tell me how many of those are actually challenge it. They can challenge it at the conclusion of a proven before the courts? case, when the case is unsuccessful, and then seek their James Dalton: No. costs. They can also challenge a case if it is successful but there is a question mark over what has been claimed, Q112 Suella Fernandes (Fareham) (Con): I have defended and that can lead to a claimant losing all of their parties in low-velocity impact claims, and the guidance damages and to a cost order as well. There are sufficient is generally set out when an allegation of fraud is drivers in the system and levers that can be pulled to going to form part of a defence; it is set out in the Court discourage any type of claim like that. of Appeal guidance for Casey v. Cartwright. What It is important, though, to understand this in context. do you think is the problem with that guidance and First, the most important thing is to consider proven how will these proposals assist? It imposes a burden fraud. I see in practice, from different members of our on the defendant to notify that fraud will be part of organisation, many allegations of fraud or fundamental the defence and, importantly, in many cases it will dishonesty that are not made out when tested by the allow them to adduce medical evidence on the issue of court. You only need to look at a recent Court of causation. Appeal decision by Lord Justice Briggs in Qader & Ors James Dalton: There are a number of tools at insurers’ v. Esure Services Limited to see that there is a developing disposal to address the type of cases that we have just gaming of the system by insurers to prevent people been discussing. Whether insurers choose to use them is from being able to challenge those cases properly. That obviously a decision for them and, as I said, Rob might case was about trying to prevent a claimant from having be able to explain what Aviva’s position is. access to the same tools to fight the allegations as a defendant has to bring them. However, the Government have recognised that fraud is a big problem in insurance. They established an There was an implicit recognition from the Court of insurance fraud taskforce, which has reported and made Appeal in that judgment that it is important that a a number of recommendations for reform. The Government person who is accused of something like that has the have delivered. For example, there is now a fundamental ability and resources to answer it. It is a serious issue for dishonesty action that insurers can plead in court, so somebody accused of it and it is about what is proven that those claims that are so flagrantly fraudulent are fraud, rather than vague statistics of about 70,000 cases, kicked out of the system. We need those tools and we where we are not quite sure whether it is fraud, detected are using them to get rid of fraud from the system. fraud or suspicion of fraud and what standard that is at. It is for the judiciary to decide if that is an issue and, Rob Townend: It is a good question; I will answer if it is found to be an issue, that person should be dealt two questions together. We started defending claims with. Equally, if you are going to have access to justice at Aviva a couple of years ago. We stood back and and equal rights on a level playing field, they need the said, “Look, we’re not going to back away quickly. We ability to challenge it in appropriate circumstances. are going to trust the courts to support us,” and we took a defence excellence strategy on behalf of our customers. If they are saying, “There wasn’t anybody Q114 Chris Philp (Croydon South) (Con): Welcome injured. I might have been liable, but the speed of the to our panellists this afternoon. About three years ago, accident didn’t cause injury,” we have been defending my wife and I were involved in a relatively minor road our customers through the courts for the last couple of traffic accident. For the year that followed that, I was years. I think we have put 1,700 through the courts; we phoned up on my mobile almost every week by people have a success rate of something like 70%. More recently, talking about the accident and trying to make me we have had great success with fundamental dishonesty submit a claim for a neck injury. No matter how many and the judges are generally starting to support us. I times I told them that neither I nor my family had think we have had 174 cases where we have had fundamental suffered any injury, they persisted in trying to incite me dishonesty. to commit fraud. Mr Townend, why were they doing If we go to the other gentleman’s comment about that? fraud, we do not pay one in 10 of our whiplash claims. Rob Townend: I spoke a bit about it earlier: it is Some of that disappears when we challenge it. I invest encouraging you to make a claim so they can access the millions of pounds in investigation analytics capability cash. The referral fee ban that was put in LASPO technology and we will challenge plaintiffs at the first obviously is not working. There are marketing fees 57 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 58 available for people to attract you to make a claim. I Injury Lawyers has been campaigning for some time, agree with Mr Dixon and his earlier comment about you remove the possibility of what I call the one-way regulation of claims management companies. Insurers bet and you are focusing then on the real problem, and lawyers are heavily regulated; I would still like to rather than on the genuinely injured person. see more regulation of the legal fraternity by the Solicitors Regulation Authority. The regulation around CMCs Q118 Chris Philp: Your mention of the one-way bet has been pushed back, I understand, to 2019. The brings me to my next area of questioning. Take the referral fee ban has not worked. There is too much example I experienced: had the recipient of that cold money still in the system and they will keep pestering. call been someone who was more open to temptation We know that. We have got a lot of examples where than I am and gone along with what the claims management vulnerable customers are being contacted repetitively, company was suggesting, how would the claims like you were, until they make a claim. management company have ended up making money out of an essentially bogus claim? They must be able to Q115 Chris Philp: Am I right in saying that panel make money out of it, otherwise it would not be worth members are unanimous in their view that cold calls by them soliciting the public. CMCs should be banned? Brett Dixon: It is the one-way bet analogy. If you Brett Dixon: Yes. then compound the problem by allowing an insured James Dalton: Yes. defendant to make an offer to somebody without seeing Rob Townend: Yes. medical evidence, where are the checks and balances in the system? Bear in mind that a claims management Q116 Chris Philp: The panel is unanimous on that company may be dealing with that, rather than a lawyer point. or a solicitor at that point. If you remove those two You mentioned referral fees, Mr Townend. As you levers, those two drivers—the cold calling and the effect say, they were banned a few years ago. My understanding of a claims management company encouraging somebody is that some organisations, including insurance companies, to make it, and an insurance company then making seek to circumvent the referral fee ban by entering into pre-med offers without evidence of the actual injury—then what they euphemistically term “alternative business you can deal with a lot of the problems that are inherent structures”, where they essentially have some kind of in the sector. equity stake in a claims management company and, effectively, get paid via their equity stake or similar Q119 Chris Philp: Am I right in saying that under arrangement, rather than an explicit referral fee. Is it qualified one-waycosts shifting, were an insurance company the opinion of the panel that this practice, designed to to take the choice to defend a claim, even if it were circumvent the will of Parliament, is going on? successful in defending that claim—if the claim was James Dalton: The referral fee ban is widely regarded found to be without foundation—the insurance company as being relatively ineffective. The mechanism you have would none the less bear both sides’ costs? Would it articulated is one of the ways people have chosen to get not further be the case that those costs would be around that ban, including insurance companies and substantially—probably by a factor of two or three—in law firms, I would emphasise. That problem is addressed excess of the value of the claim, and that is why for the substantially by the reforms in this legislation, because past five, 10 or 15 years, insurance companies have what they do is take that money out of the system and, simply coughed up without challenging the case? Perhaps therefore, take out the incentive to try and circumvent a Mr Townend might comment on that. referral fee ban. Rob Townend: Yes; I am one of the insurers who has been defending despite the costs. Q117 Chris Philp: Mr Dixon, do you want to add at all to that before I move on? Brett Dixon: I will with an anecdote, more than Q120 Chris Philp: When you defend a claim and win, anything else. I shared a similar experience to you where do you lose money? I had vehicle damage. I was not in the vehicle. It was in a Rob Townend: It depends if we then go for a costs supermarket car park and an older gentleman was kind order. We will try to if we think we will be successful in enough to leave his details. I was pestered by my insurance that. What is really interesting is that, in the model I company. I was even asked, “Are you sure you weren’t in operate, the only person I am paying as a result of an the vehicle?” Take that on board. injury claim is the party who has been injured and their If you have damage to your vehicle—your car that is lawyer. How the CMC gets remunerated for that insured—the first organisation that has access to knowledge introduction, I do not really know. The only person I that you have had an accident is the insurance company. am paying cash to is the plaintiff and their lawyer. They take referral fees for work—I am aware of that practice—and they also make a profit from referring Q121 Chris Philp: Presumably one of those two makes such cases on. You only need to look at some of the an onward payment to the claims management company? reports that they make as part of the stock market Rob Townend: I do not know how it works. requirements in relation to that. Generally, if you take claims management companies out of the equation, you will remove one of the Q122 Chris Philp: Mr Dixon, you practise in the area. drivers. If you look at banning the practice of insurance How does the money get to the CMC—by magic? companies and claims management companies referring Brett Dixon: I do not take any work from CMCs; I work on, you go some way towards doing that as well. If take the work from personal referrals. What I would like you ban cold calls, for which the Association of Personal to do is to pick up on some of your questions. 59 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 60

Q123 Chris Philp: Before you do, you also represent I would like to come on to the pre-med offer the trade body representing personal injury lawyers, so point, which is important. In clauses 64 and 65, legislation you can answer in general terms. How does the money contemplates essentially banning pre-med offers where get from the claimant’s lawyers or the claimant to the there has been a whiplash claim—a whiplash claim is CMC? defined as in clause 61. Would it not make sense, in Brett Dixon: We do not recommend that any of our relation to the banning of pre-med offers, to suggest members interact with CMCs. that any personal injury claim in relation to a road traffic accident should involve a face-to-face medical Q124 Chris Philp: I did not ask what you recommend, examination, rather than just the whiplash claims, as which I am sure is very virtuous; I asked what actually currently drafted? Would that not be a much stronger happens in practice. way of ending the pre-med offer practice? Brett Dixon: I would not know what happens in Rob Townend: From our perspective, absolutely. We practice because I don’t do it and our members are told would like to see a pre-med offer ban. In Aviva, we do not to do it either. not make any offers without a medical—again a decision we made— Q125 Chris Philp: They clearly do, otherwise CMCs would not exist. Q127 Chris Philp: Are those face-to-face medicals? Brett Dixon: We have a large membership but it is not Rob Townend: Yes. all people who practise in the area. There may be areas where they are not APIL members where that practice goes on. To go back to your earlier point about the Q128 Chris Philp: You are unusual in doing that, are qualified one-way cost shifting and the effect of it, you not? qualified one-way cost shifting was brought in to replace Rob Townend: Yes, we are pretty unusual doing that. the after-the-event insurance policy, which was something We looked at the overall system and said, “We do insurance companies were making money out of. not want to feed it”. We wanted to make sure we Now, if a claim is not successful, then there are have medical evidence around the settlements we exceptions to the qualified one-way cost shifting rule. make, and that we then follow through and defend Take the example of the one-way bet, where someone those if we think the injury is not in line with either the has not actually had an accident. There would be two accident— different provisions in the civil procedure rules whereby a defendant could get their costs paid. There would be Q129 Chris Philp: So the suggestion I just made is in fundamental dishonesty, and there would also be the line with your current practice, and it would effectively fact that the claim would be struck out for being no force the rest of the insurance industry to adopt the cause of action, or an abuse of process. If there was no very commendable practice you are already adopting actual accident, then it is not a viable claim. It would be voluntarily? an abuse of process. Rob Townend: Yes, I think: do not pay a claim without If the claim was successful, there is a provision in medical evidence, whether that is a motor accident or a section 57 of the Act for them to recover in circumstances liability claim in the commercial courts. where there is a taint of fraud in relation to a fundamental, or large, part of the claim. If a defendant challenges a claim where there is evidence of fundamental dishonesty, Q130 Chris Philp: Mr Dixon, are you happy with or it is based on a one-way bet, there is a mechanism for that? them to be paid. It is a mechanism that is being used Brett Dixon: Very short and very simple: yes, ban it in and, like any provision that you introduce into the civil all personal injury claims. Pre-med offers should not procedure rules, the mechanism takes time for the courts happen. to interpret and to bed in. However, there have been quite a lot of cases—at county court level, High Court Chris Philp: Goodness me, there we are! A further level and some in the Court of Appeal—that are starting usual outbreak of unanimity. to shape how that works. The fundamental point is that, in those circumstances, there is a mechanism for a Rob Townend: There is one point to go back to. Do defendant to be paid for the costs they have incurred. not end with a system with your current definition of whiplash that excludes back because, unless you do The final point you made was about the cost being that, you will have no pre-med offers— two or three times the likely damages. If it is for a whiplash claim that is in the fast track, then that is fixed cost, so you will not get two or three times the damages. Q131 Chris Philp: There are two operative provisions The only circumstances in which you would are if you in the Bill. One is in relation to the fixed tariff, and one have made a part 36 offer to the defendant and then is in relation to pre-med offers, and one might treat gone on to do better than it. In other words, you offered them slightly differently. to settle at an early stage and that offer was ignored. In relation to the definition of whiplash in clause 61, That is there to promote settlement between the parties my colleagues have asked about this already but, having and save court time. read your submission to the Committee, Mr Dalton, I think I am right in saying that you are concerned that Q126 Chris Philp: The phrase I have heard several of the definition in clause 61(1) is too narrowly drawn. In you use is this idea of a one-way bet. Given that it is a particular, it excludes the back, and you are worried one-way bet, it is no surprise that the floodgates have that there will be a sudden miraculous upsurge in people opened in the past few years. with bad lower backs. 61 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 62

James Dalton: Absolutely correct. I repeat the point At the moment, while the consultation is happening, I made earlier: getting the definition right is absolutely there is a world of uncertainty around what will happen critical to ensuring the success of this legislation, in in the future. I think it is in everybody’s interest to get terms of delivering the outcome that the Government clarity around a longer-term rate that can be as formulaic have articulated that they want to achieve. At the as possible and looks after the long-term interests of moment, I am concerned that by excluding back you those who are seriously injured while looking at the will see a surge in back claims that are not covered by longer-term investment returns that lump-sum payments this legislation. can achieve. We just plead that the consultation is got on with quickly. We would love to see the piece of Q132 Chris Philp: To be clear, we have heard a figure legislation that it could be put into. of £1 billion a year of savings mooted in the past. If we Brett Dixon: It is important to understand that you adopt the definition as drafted, in your opinion what are dealing with issues at two ends of a different spectrum. proportion of those estimated savings will in fact be You are talking about a whiplash claim, and in the same realised? breath, in terms of the discount rate, you are talking James Dalton: I think you said earlier that Aviva’s about the catastrophically injured person. The important figures suggest that 60% of the claims are probably point in relation to that is that, first, the insurers have going to be excluded, so take away 60% of £1 billion. known for some time that this change was coming. It was long overdue. For a number of years they have made provisions in their own accounts for this, so to Q133 Chris Philp: The final question I would like to suggest that this has come like a bolt out of the blue is ask is about a matter I understand might be introduced disingenuous. into the Bill at a later date, which is to do with the discount rate used when paying claims for long-term Secondly, the changes are to ensure that a seriously injuries. It has recently been amended by the Lord injured person has sufficient moneys available to Chancellor from, I think, 2.5% down to minus 0.75%. I make provision for their future needs because of would like to close by giving each of the panellists an somebody’s negligent act. A lot of it is about care. If opportunity to comment on that move and the impact it you are not making sure the person who did the may have on the wider public. damage is paying via their insurance policy, it will be the NHS and the taxpayer who ultimately have to foot James Dalton: The decision to reduce the discount the bill to look after that seriously injured person. What rate by 325 basis points has imposed substantial costs you will not change by changing the mechanism for the on the insurance industry. By “substantial”, I mean to discount rate is the fact that that person is seriously the tune of about £6 billion. That is about 60% of the injured and needs that care. It is right for society that annual claims cost of motor claims. That cost simply the person who did the damage should foot the bill, not cannot be absorbed; it must be passed on to consumers. the taxpayer. Premiums will inevitably rise as a result. Insurers knew this was coming. I hear a lot of talk A number of firms have indicated in the public domain about how you cannot buy Government gilts. Because that that is the case. The Government need to put out of the mechanism chosen in the Damages Act 1996, the consultation they said they would produce so people the person who is investing their money does so on can address the principles underpinning how a rate is the basis that they are taking a no-risk investment. set. At the moment, it is linked to Government bonds. That is why that is there. There are no other no-risk No one goes and buys Government bonds. It makes investments available. If you want a judge to calculate assumptions that 100% of a claimant’s damages are damages, he has to have a methodology and a starting invested in one asset class. No rational investor would point. do that. So the fundamental underpinnings of how the discount rate are set are fundamentally wrong, and we James Dalton: No one is arguing about whether need to address that. these claimants need the support that an insurance company is going to provide. No one is saying that these people should get less money. What we are saying is that Q134 Chris Philp: In the absence of any change, what the formula for setting the rate, which is now 20 years is your assessment of the percentage impact on the old, needs to be updated to take into account the fact average car insurance premium in this country? that it is linked to Government bonds and assumes 100% compensation. These things do not just happen in James Dalton: It will go up significantly. I think the practice. impact on young drivers is going to be particularly bad, because those are the customers who are most likely to Q135 Sir Oliver Heald: I do not know if Mr Dixon have catastrophic injuries. It is estimated that their and Mr Dalton would agree that the Lord Chancellor premiums could increase by £1,000. has had to exercise her duty in a quasi-judicial way Rob Townend: I will not say a lot that differs from under the existing mechanism as it stands. It is right for what Mr Dalton has said. We have got to sort out the this to be a consultation about the future, but that was methodology for setting out the discount rate, because I the law. Do you agree? think nobody would say that it fits the current world, Brett Dixon: I agree entirely. The Lord Chancellor either from an investment return point of view or from made the decision that she was legally required to make. the point of view of looking after those who are seriously She was exercising a quasi-judicial function when we injured. made the reforms, introduced the Supreme Court and The fact that there are so many variations of the made other changes. That role was retained by the Lord potential solution that the Lord Chancellor could have Chancellor, even though setting damages is properly a chosen tells you that the mechanism does not work. judicial function. 63 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 64

James Dalton: I do not agree. The Government The Chair: If there are no further questions, may I undertook consultation exercises in 2012 and 2013 thank the witnesses for their evidence and invite the specifically asking questions around whether the regulatory Government Whip to propose the adjournment? framework for setting the discount rate was right. Indeed, there is going to be a consultation now asking similar Ordered, That further consideration be now adjourned. questions. To me, that suggests that the Government do —(Guy Opperman.) not think that the framework is right. In that context, it also suggests that the decision that the Lord Chancellor 3.58 pm has decided to take, based on legal advice, is questionable. I do not think that the way that she has taken that Adjourned till Wednesday 29 March at twenty-five decision is right. past Nine o’clock. 65 Public Bill Committee 28 MARCH 2017 Prisons and Courts Bill 66

Written evidence reported to the House PCB 03 The Law Society PCB 01 Association of Personal Injury Lawyers (APIL) PCB 04 Prison Officers Association (POA) PCB 02 Arthur Michael Robinson, Director and Solicitor, Emmersons Solicitors Limited PCB 05 Royal College of Psychiatrists

PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES

Public Bill Committee

PRISONS AND COURTS BILL

Third Sitting Wednesday 29 March 2017

(Morning)

CONTENTS

CLAUSE 1 agreed to. CLAUSE 2 under consideration when the Committee adjourned till this day at Two o’clock.

PBC (Bill 145) 2016 - 2017 No proofs can be supplied. Corrections that Members suggest for the final version of the report should be clearly marked in a copy of the report—not telephoned—and must be received in the Editor’s Room, House of Commons,

not later than

Sunday 2 April 2017

© Parliamentary Copyright House of Commons 2017 This publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 67 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 68

The Committee consisted of the following Members:

Chairs: †MR GRAHAM BRADY,GRAHAM STRINGER

† Arkless, Richard (Dumfries and Galloway) (SNP) † Qureshi, Yasmin (Bolton South East) (Lab) † Burgon, Richard (Leeds East) (Lab) † Saville Roberts, Liz (Dwyfor Meirionnydd) (PC) † Fernandes, Suella (Fareham) (Con) † Smith, Nick (Blaenau Gwent) (Lab) † Gyimah, Mr Sam (Parliamentary Under-Secretary † Swayne, Sir Desmond (New Forest West) (Con) of State for Justice) Thomas-Symonds, Nick (Torfaen) (Lab) † Heald, Sir Oliver (Minister for Courts and Justice) † Tomlinson, Michael (Mid Dorset and North Poole) (Con) † Jenrick, Robert (Newark) (Con) † Tracey, Craig (North Warwickshire) (Con) † Lynch, Holly (Halifax) (Lab) † Warman, Matt (Boston and Skegness) (Con) † McGinn, Conor (St Helens North) (Lab) † Opperman, Guy (Lord Commissioner of Her Katy Stout, Clementine Brown, Committee Clerks Majesty’s Treasury) † Philp, Chris (Croydon South) (Con) † attended the Committee 69 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 70

Rather than simply aiming to deliver the purposes of Public Bill Committee prisons, we want to adopt prison procedures and practices designed to deliver the purpose of prisons. Therefore, Wednesday 29 March 2017 we want to add the words “decent” and “fair” to the clause. We think the prison environment should be decent and fair. That was one of the central conclusions (Morning) of Lord Woolf’s inquiry into the disturbances at Strangeways and other prisons in 1990, which remains the central foundation for everything that a prison [MR GRAHAM BRADY in the Chair] might achieve. The link between safety and decency is also recognised by the UN’s Nelson Mandela rules, Prisons and Courts Bill which require that, in addition to safety, prisons must maintain the dignity of every person in custody. To 9.25 am ensure the Bill is compatible with the United Kingdom’s obligations, that duty should not be assumed or implicit; rather, it should be made explicit in our legislation. Clause 1 A lack of confidence in the complaints system among prisoners stubbornly persists. Less than 30% of prisoners PRISONS: PURPOSE, AND ROLE OF SECRETARY OF STATE reported to inspectors that they felt their complaints were dealt with fairly. That view was upheld by the Yasmin Qureshi (Bolton South East) (Lab): I beg to prison and probation ombudsman, which has seen the move amendment 9, in clause 1, page 1, line 10, leave proportion of upheld complaints rise from 26% to 40% out “aim” and insert “adopt procedures and practices in only five years. designed”. Establishing the minimum standards of safety, decency This amendment strengthens “aims to” in Clause 1. and fairness in prisons should also be a matter for Her Majesty’s inspectorate of prisons. The Prison Reform The Chair: With this it will be convenient to discuss Trust has argued that, on the purpose of prisons, we the following: should also enshrine in statute the existing case law about what life in prison should be like, as set out in Amendment 10, in clause 1, page 1, line 14, after Raymond v. Honey in 1982, which states that prisoners “safe” insert “, decent, fair”. retain all civil rights not taken away expressly by Parliament This amendment requires the purposes of prisons to include decency or by necessary implication of the fact of imprisonment, and fairness. such as voting and freedom of movement. An annual Amendment 11, in clause 1, page 1, line 14, at end reporting duty will be linked to the statutory duty of insert prisons. “for prisoners and prison staff”. Amendment 11 would insert the words This amendment requires the purposes of prisons to include prison staff. “for prisoners and prison staff”. Prison officers work in some of the most challenging Yasmin Qureshi: It is a pleasure to serve under your conditions, and the Bill needs to focus on protecting chairmanship, Mr Brady. May I inform the Committee them. We must ensure that their safety and working that we will be seeking a Division on amendment 10? conditions are taken into consideration. In 2016 there were 25,049 assault incidents, which was up by 5,995 or When we heard that this Bill was being introduced, 31%. That included 6,430 assaults on staff, which was everyone got very excited about it because it was advertised up by 1,833 or 40%. No measures in the Bill impact on as a once-in-a-generation chance to reform prisons. the likelihood of violence. An official statistics bulletin However, when we actually went through the Bill, we recognises the role of staffing cuts in the rising violence: found that it has left out many things that it should be dealing with. Although we welcome certain parts of the “The rise in assaults since 2012 has coincided with major changes to the regime, operating arrangements and culture in Bill, it does not deal with many of the things that are at public sector prisons. For example, restructuring of the prison the crux of the problem with our prison system. estate including staff reductions, which have reduced overall I think everybody is aware of the fact that there has running costs, and an increasing awareness of gang culture and been disorder at Lewes, Bedford, Moorland, Birmingham illicit psychoactive drugs in prisons.” and Swaleside prisons. Yesterday, we heard from the On 15 November last year, members of the Prison experts that violence against staff and inmates and Officers Association took national protest action over suicides are at record levels. Hard-pressed prison officers the failure of the National Offender Management Service need more numbers and resources to deal with prisoner to address concerns about health and safety before a violence and to make prisons safe. The Bill does not court injunction required them to return to work. The deal with the issues of overcrowding, understaffing and POA said: the proper rehabilitation of offenders. “The continued surge in violence and unprecedented levels of The probation service is not working, and again the suicide and acts of self harm, coupled with the recent murder and Bill does not address its issues. People should leave escapes demonstrate that the service is in meltdown.” prison ready to lead productive and law-abiding lives, Staff morale is low and the statistics show that the but that can be achieved only if prisons are safe, decent number of prison officers continues to fall, and the and fair places in which those being punished can also leaving rate is increasing, in particular after one or two begin to rebuild their lives. It is with that in mind that years’ service, despite the recruitment efforts. Unless we we tabled these amendments. recognise that prison staff—their rights and working 71 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 72 conditions—must be considered within the scope of the management regime works with the purpose and prison legislation, there is little prospect of prisons achieving rules by ensuring that a clear line of sight exists between their statutory purpose. the purpose and the standards. Fourthly, we are enhancing the transparency and The Parliamentary Under-Secretary of State for Justice scrutiny of our regime. We already publish data on a (Mr Sam Gyimah): Mr Brady, may I say how delighted I wide number of different topics, for example, safety and am to serve under your chairmanship on this historic custody statistics but we will go further because we day for our country? It is 65 years since the last major want the public to understand that progress is being prisons Bill. made in our prisons, so we will publish data setting out how prisons are performing. Data on some of the new I am grateful to the Opposition for the points that performance measures will be available from October, they have made on the important issues of the debate, in as data start to be made public on a quarterly basis, and which we are considering the statutory purpose of prison. the performance agreements will be published from the From the outset, we should remember that prisons are summer. We will also publish performance tables to there to deliver the sentences of the courts. As the show how individual prisons are performing against key Criminal Justice Act 2003 makes clear, one of the safety and reform standards. The table will present the purposes of sentencing is to punish offenders, and of data in a format that the user can rank by standard. It course this is important; but equally important is what will be populated as data become available. we do with offenders when they are in prison. Finally, we will discuss later our approach to The clause will make it clear in statute for the first strengthening the independent scrutiny of our prison time that the purpose of prisons should not only be to system through the prisons and probation ombudsman house prisoners, but include reforming prisoners and and Her Majesty’s inspector of prisons. All of that will preparing them for a return to their community. Given contribute to assessing how the statutory purpose is the significance of that, I understand hon. Members’ being met. interest. However, before I respond to the amendments individually, it might be helpful if I touch on four As we consider the proposed additions to the purpose opening points to show how the statutory purpose fits from the hon. Member for Bolton South East, it is within the broader prison landscape, as this will come important to consider whether they are rightly aims, or up with some of the subsequent amendments that we better suited to a different part of the new operational will be debating. framework. I shall consider each in turn. Amendment 9 would replace “aim”with “adopt procedures and practices First, we are enshrining the purpose of prisons in designed”. Although I understand that the hon. Lady’s statute, to provide a clear common purpose that everyone purpose is to strengthen the clause, I am not sure I agree working in the prison system, whether prison officers, that it would do so. The Government consider that it is governors, the independent inspectorates or the Secretary implicit in the drafted duty of “must aim to” that of State, can unite behind. Secondly, we have prison prisons must “adopt procedures and practices designed” rules set out in secondary legislation, and therefore to achieve those aims. As I have set out, the statutory approved by Parliament. The rules are there to ensure purpose is designed to provide a common purpose that the good regulation and management of prisons, and to all parts of the justice system can unite behind. In my make provision for the classification, treatment, view, “aim” is a broader and more inclusive way of employment, discipline and control of prisoners. They ensuring that all the different parts of the system can are also there to ensure that prisons are run fairly and to identify their role in meeting the purpose. provide a clear legal basis for any interferences with prisoner rights. I emphasise the importance of prison Amendment 10 proposes the inclusion of “decent rules in ensuring that some of the more detailed and fair” in the purpose. I want to stress that of course arrangements of running our prisons are captured in the Government strongly believe that all prisoners should legislation. be treated fairly and with decency. It is absolutely right that decency and fairness are, and continue to be, Thirdly,our reforms will sharpen accountability through essential elements of running prisons. That is why there the system. We are clarifying the distinction between is already a range of legal obligations to ensure that the Secretary of State’s role in managing the prison prisons are run in a way that is decent. system as a whole and the operational running of individual prisons, which is for governors and their First, it is a general principle of public law that the staff, as part of a new, operationally focused Executive public authority must act fairly with those whom it agency, Her Majesty’s Prison and Probation Service. As deals with. Many of the obligations we signed up to hon. Members will be aware, the Secretary of State under the European convention on human rights, and made a written ministerial statement on the introduction which were incorporated into domestic law in the Human of the Bill which set out the standards for which governors Rights Act 1998, are relevant to decency in prisons. For will be held to account. Of course, they include security, example, article 3 of the convention means that prisoners such as the number of escapes or absconds from closed must be detained in conditions that are compatible with prisons, but they also include progress made on getting respect for their human dignity. offenders off drugs, progress in health and in maintaining Prisons must, of course, comply with the Equality or developing family relationships. Act 2010 and ensure that they do not discriminate To hold governors to account for these new standards, against a person with a protected characteristic, such as they must be free to manage. We are freeing them up to race or disability. That is also an important part of deliver change and devolving key operational policies to ensuring fairness and decency. Many of the minimum them, a subject I look forward to discussing further in requirements that contribute to ensuring that prisons amendments on minimum standards.The new performance are run in a decent way are also set out expressly in 73 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 74

[Mr Sam Gyimah] Amendment proposed: 10, in clause 1, page 1, line 14, after “safe” insert “, decent, fair”.—(Yasmin Qureshi.) secondary legislation, in the Prison Act 1952 and principally This amendment requires the purposes of prisons to include decency in the Prison Rules 1999, which are secondary legislation and fairness. approved by Parliament in the usual way. Question put, That the amendment be made. The provisions are detailed and extensive and cover a The Committee divided: Ayes 7, Noes 9. wide range of requirements. For example, they include rules on checking cells and cell conditions; the provision Division No. 1] of wholesome, nutritious food; hygiene; beds and bedding; AYES and clothing adequate for warmth and health. In order to ensure that prisons are meeting those minimum Arkless, Richard Qureshi, Yasmin Burgon, Richard standards, all prisons have an independent monitoring Saville Roberts, Liz board that examines all aspects of prison life in order to Lynch, Holly ensure that prisoners are treated with fairness and decency. McGinn, Conor Smith, Nick I argue that it is better to focus on ensuring that the aspects of a decent regime are included in the prison NOES rules, rather than in the Bill. Prisons are already bound Gyimah, Mr Sam Swayne, rh Sir Desmond by legislation that requires them to act with decency Heald, rh Sir Oliver Tomlinson, Michael and fairness. Jenrick, Robert Tracey, Craig Turning to fairness, there are a number of safeguards Opperman, Guy in place in the day-to-day running of prisons to ensure Philp, Chris Warman, Matt that the regime is fair. There is, of course, the general public law duty on prisons to act fairly and there are Question accordingly negatived. statutory requirements in place too. For instance, should a prisoner be charged with an offence against discipline, Conor McGinn (St Helens North) (Lab): I beg to prison rule 54 provides that the prisoner move amendment 1, in clause 1, page 1, line 14, at end “shall be informed of the charge as soon as possible and…be insert— given a full opportunity of hearing what is alleged against him “(da) maintain an environment where it is safe for prisoners to and of presenting his own case”. practise their faith.” Prison rule 45, on removal from association, requires This amendment guarantees the rights of prisoners to practise their extended periods to be authorised by someone who is faith in prison. external to the prison who can scrutinise the reasons for the segregation. Where a prisoner has exhausted the internal complaints procedure, he may direct a complaint The Chair: With this it will be convenient to discuss to the prisons and probation ombudsman. The Bill puts amendment 2, in clause 1, page 2, line 7, at end insert— the PPO on a statutory footing to ensure his permanence “(da) ensure family and other supportive relationships are and give him statutory powers. I look forward to discussing maintained and developed.” the role of external scrutiny in prisons in more detail later. This amendment requires the Secretary of State to provide a prison chaplain in every establishment. It is, of course, vital that we treat prisoners with decency and fairness if we are to expect them to turn their lives around. I completely agree about the importance Conor McGinn: It is a pleasure to serve under your of ensuring that we do. However, I believe that it is not chairmanship, Mr Brady. This is the first Bill Committee necessary to include such a provision in the purpose, I have participated in from the Back Benches, having sat because a requirement for a fair and decent regime through five or six on the Front Bench as an Opposition already exists elsewhere in legislation. Whip, but I will resist the temptation to speak at length despite that. I should declare an interest of sorts as Although amendment 11 raises a very important someone who was previously a prison chaplain and the question, I am happy to confirm that we are confident UK director of the Irish Catholic Bishops Conference that the clause already covers prisoners and prison staff commission for prisoners overseas. During two years in without an explicit reference to both. There is a risk that that role, I visited dozens of prisons across England and including such a reference may inadvertently omit others Wales—as far north as Frankland, as far south as the working within or with prisons, such as charities, inspectors Isle of Wight, as far east as Wayland and as far west as and civil servants, who also need to take account of the Parc. I am glad to say that I served in that role at the purpose while performing their duties. I therefore beg pleasure of His Eminence rather than Her Majesty, and the hon. Lady to withdraw her amendment. that I was free to leave of my own volition at the end of the day.

The Chair: The shadow Minister has already indicated 9.45 am that she wishes to press amendment 10 to a Division; it would be helpful if she indicated whether or not she I tabled amendment 1 primarily to allow the Committee wishes to withdraw amendment 9. to talk about the work of the prison chaplaincy, the vital role that it and faith play in our prison system and how we might enhance and support the work of chaplaincies and identify areas where it could be improved. Yasmin Qureshi: I intend to press amendment 10 to a The fundamental starting point for my amendment, Division, but I beg to ask leave to withdraw amendment 9. which is about freedom to practise one’s religion, is that Amendment, by leave, withdrawn. the UK subscribes to the UN resolution of 1981 that 75 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 76 refers to the right to profess and practise religious faith not being let out of their cells. Prison chaplaincy can privately and publicly. That wording seems particularly often be disconnected from prison infrastructure, centrally appropriate given the experience of prisoners in both and in individual establishments. It is worth looking at those spheres. better integration across the estate as a whole, and Prison chaplaincy is already on a statutory footing. between chaplain co-ordinators and the senior management The Prison Act 1952 states: team in individual prisons. “Every prison shall have…a chaplain”. We are all acutely aware, in particular at this time, of the dangers of radicalisation and extremism in prison. I I welcome the fact that the Government do not seek to learned more about other religions and denominations alter that premise, but they might look at updating the during my work in prisons than throughout the rest of wording slightly. At present, a chaplain or assistant my life. It led me to much greater ecumenism in my own must be a clergyman of the Church of England. As of faith. I remember receiving my ashes on Ash Wednesday the end of 2016, 338 full-time chaplaincy staff were from a female Anglican chaplain at Downview women’s employed by the National Offender Management Service. prison—I am glad my daily-communicant grandmother As my experience shows, a chaplain does not have to be is not alive to hear that, and I hope that the cardinal is a member of the clergy or a minister of faith, although not listening. I also learned to understand other faiths it would be interesting to know what the breakdown is that I had not known, Islam in particular. I am not sure in that regard. It is estimated that between 700 and 800 that I would have had the confidence to greet my volunteer chaplains work in the prison system, providing Muslim constituents with “Salaam alaikum”, or to talk a range of chaplaincy services. Together, those chaplains to them about the great peaceful philosophy of their play a vital role in the daily functioning of our prison faith, without learning what I did from imams and system and the lives of prisoners and those who work in Muslim prison chaplains. our prisons. Like the prison population they serve, the role of The Muslim community and chaplains themselves chaplains has changed considerably in the past 20 years. know, however, that there is a problem with the The chaplaincy is now a diverse mix of faiths, cultures, misrepresenters and malevolents who pervert their great ethnicities and languages. At the end of March 2016, faith to urge young men in prison to pursue a nihilistic just under 50% of the prison population defined itself and violent path. I urge the Government to look for as Christian—a decrease of 9 percentage points since co-operation between local mosques and prisons, and 2002. Conversely, the proportion of Muslim prisoners to ensure that volunteer chaplains, in particular, are increased from 8% in 2002 to almost 15% in 2016. properly vetted and monitored, alongside the literature Meeting those changing needs requires flexibility, they distribute, and that they play a full part in an co-operation and understanding, both in individual integrated, multi-faith chaplaincy. prison establishments and at director and ministerial In closing, I pay tribute to all prison chaplains, who level in the Ministry of Justice. give such great witness each day in their work to the A prison chaplain charts a difficult course between most isolated, the most vulnerable, the most in need, being an employee of a prison, or at least there with the and yes, in some cases, the greatest of sinners. I am sure authorisation of the prison authorities, and being a that the Government have heard what I have said this confidant and support for prisoners, regardless—this is morning, and I look forward to hearing from the Minister. important—of the nature of their offence. A prison chaplain’s role is not just about faith; it is a pastoral Mr Gyimah: I thank the hon. Gentleman for raising role. As one prison officer put it, this important topic. As hon. Members are aware, there “we are there to watch prisoners, chaplains are there to listen to is already legislative provision in the Prison Act 1952 to them.” ensure that every prison has a chaplain. The hon. Member A seminal study on prison chaplaincy by Rev. Dr for St Helens North asked for some information at the Andrew Todd and Dr Lee Tipton from Cardiff University’s start of his speech on the amendment, and I will write Centre for Chaplaincy Studies stated that to him with the breakdown requested. “a core value of chaplaincy lies in the provision of a distinctive Prisons are committed to enabling prisoners to practise humanitarianpastoralcare…whichstemsfromthefaithunderstanding their religions, and all prisons have multi-faith chaplaincy of chaplains, rooted in the great spiritual traditions.” teams to facilitate and enable them in the practice of That is provided not just to prisoners but to prison staff their faith. Secondary legislation, in prison rule 15, and prisoners’ families. I have seen the value of positive provides for regular visits to prisoners by ministers of family relationships in helping prisoners turn their lives religion. If a prisoner belongs to a denomination for around. In many respects, the families of offenders, which no minister has been appointed at a particular including 200,000 children in 2016, serve a hidden sentence. prison, the governor must arrange for visits by a minister Chaplains often step into the role of family members of that denomination. for prisoners who are held in isolation or at great Instructions and guidance on religious practice in distance from their families, but they are no substitute prisons is set out in Prison Service instruction 5/2016, for regular family contact, which well-established evidence “Faith and Pastoral Care for Prisoners”, which includes suggests reduces the risk of reoffending by almost 40%. specific information on a wide range of religions and The Government must ensure that chaplains are there beliefs. The PSI was developed in consultation with to support family contact, not replace it. NOMS faith advisers and includes specific information Prisoners trust prison chaplains. Recent research found on the requirements to practise each religion. For example, that 90% trusted their chaplain in their prison establishment, the PSI requires that prisoners have the opportunity for but almost a quarter had difficulty seeing their chaplain. corporate worship for one hour per week led by the Much of that is down to timetabling issues or prisoners relevant faith chaplain. For numerically smaller faith 77 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 78

[Mr Gyimah] Hon. Members who attended the Second Reading debate will remember the hon. Member for Bridgend traditions, there is scope for prisoners to meet together (Mrs Moon) describing the work at Parc prison, also under supervision, in the absence of the faith chaplains mentioned by the hon. Member for St Helens North. if needs be. We heard of the life-changing outcomes of the work at The PSI also makes provision for informal, unsupervised HMP Parc, which is being adopted across the world. worship, religious study or meditation so that prisoners We want all of our prisons to carry out the work that is can also practise their faith in their cell, and they may done so well in that prison, but family work has been have key religious artefacts and scriptures in their possession. frustratingly elusive to date. I say frustratingly because, Prisons will also meet the religious dietary requirements of course, the issue was pointed out by Lord Woolf of prisoners, and prisoners are able to observe key when he conducted his inquiry over 25 years ago; the religious festival dates. Given that those provisions and importance of maintaining close family ties was one of existing legal protections are clearly in place, I hope that his report’s 12 recommendations. the hon. Gentleman will withdraw his amendment. Having visited HMP Wandsworth and HMP Coldingley, I am conscious of the impact that reform prisons can play generally and in relation to family work. One of Conor McGinn: I thank the Minister for his response. the first fruits of that devolution is that governors will have control over their own family service budgets. I Yasmin Qureshi: I just want to say that we support welcome the clear intent from the Ministry of Justice to the amendments. Religion is important for many people. prioritise family relationships. I also welcome the Safe provision of and access to religious faith leaders, appointment of Lord Farmer to draw up a much- whether a chaplain, an imam or whoever, are also anticipated report on the importance of family work. I important. believe that would be greatly strengthened if the Minister considered including that aspect in the Bill. Conor McGinn: I beg to ask leave to withdraw the The Minister mentioned prison rules. Rule 4 already amendment. mentions families, so I ask him to consider that there is still inconsistent application of those rules, hence the Amendment, by leave, withdrawn. variance across our prison estate. I would welcome his comments on that. Where respect for prisoners’ family Michael Tomlinson (Mid Dorset and North Poole) ties permeates a prison, that can be instrumental in (Con): I beg to move amendment 3, in clause 1, page both prisoner reform and prison safety, which many 1, line 14, at end insert— hon. Members have mentioned. I ask him to consider “(da) ensure family and other supportive relationships are including this matter in the Bill, but I stress that this is a maintained and developed.” probing amendment. This amendment includes maintenance of family relationships in the purpose of prisons. 10 am It is a great pleasure to serve under your chairmanship, Mr Brady.I am grateful to the hon. Member for Stretford Mr Gyimah: In responding to amendment 3, I stress and Urmston (Kate Green) for adding her name to the at the outset that the Government attach huge importance amendment. On Second Reading I challenged the Minister to prisoners, in the vast majority of cases, developing to consider whether issues of family ties and strong and maintaining supportive family relationships, which personal relationships should be in the Bill. That is why are critical to rehabilitation and reducing intergenerational I have tabled the amendment. crime. Families can play a significant role in supporting As the hon. Member for Stretford and Urmston said an offender. They are the most effective resettlement on Second Reading, there was a huge amount of agency once a prisoner has been released, and research cross-party consensus on the importance that family has found that prisoners who report improved family plays in prisoners’ lives. I do not know whether you relationships over the course of their sentence are less have had a chance to look at each and every word of likely to reoffend after release. Positive family relations that debate, Mr Brady, but the words “family” and have been identified as a protective factor in helping “families” appear 80 times—more than the word prisoners to turn their backs on crime. “rehabilitation”and almost as often as the word “reform”. Lord Farmer, working in partnership with Clinks, That indicates how important all parties consider the was commissioned to chair a working group to investigate role that families should play in prisoners’ lives. There is how supporting men in prison in England and Wales to a strong connection between all three: rehabilitation, engage with their families could reduce reoffending reform and maintaining family links. and assist in addressing intergenerational crime. The The hon. Member for St Helens North mentioned Government will consider his findings and respond in research showing the just under 40% rehabilitation rate. due course. The evidence that his review has gathered That is absolutely right, and it is from the Ministry of will allow governors to deliver a local offer that best Justice’s own research that was commissioned in 2008. meets the needs of their respective prisoner cohort, A very simple question was asked of a sample of just thereby helping them to improve family ties. under 5,000 prisoners: did you receive a prison visit However, the Government’s view is that maintaining from family members? Of those who indicated yes, and developing family relationships is already covered there was a 39% lower chance of their reoffending than by paragraphs (b) and (c) of what will be new section those who had not received a prison visit. That is A1 of the Prison Act 1952 when the Bill becomes law. compelling evidence of the importance of maintaining Requiring prisons to aim to reform and rehabilitate close family ties. offenders and to prepare prisoners for life outside prison 79 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 80 is intended to capture a wide range of activity that is the Government and the Prison Service to think about rehabilitative and helps to reduce reoffending. Maintaining that. It is all very well saying, “Let’s maintain family family relationships is critical to both those aims. relationships,” but we must ensure that the resources are I can also confirm that the role of the family is there so that relationships can be maintained. Retransferring already contained in secondary legislation, as my hon. prisoners, perhaps to a location near to their home, if Friend the Member for Mid Dorset and North Poole possible, should be considered urgently. I know from pointed out. Prison rule 4 already ensures that “special trying to get prisoners moved from one prison to another attention”is paid to the maintenance of family relationships, that it is an almost impossible task. It is all very well in so long as they are in the best interests of both prisoner theory, but we need something in the prison reforms to and family. Furthermore, rule 4 ensures that both take place in practice. encouragement and assistance is provided for prisoners By seeking to enshrine this provision in law, the hon. in establishing relationships with those outside prison Member for Mid Dorset and North Poole is flagging up that will best promote the interests of his family and his the importance of family relationships and ensuring own social rehabilitation. that everyone is mindful of it. That is why we support the amendment. An explicit reference to the maintenance and development of family relationships for that purpose ignores the fact Mr Gyimah: I want to make a couple of brief points. that, for some prisoners, such as violent domestic cases, I acknowledge what the shadow Minister said about that would not be appropriate and therefore should not prisoners sometimes being located a long way away be pursued. Family relationships are already covered in from their families. One of the facts about prison life is the aims, with important detail contained in prison that prisoners often have to be moved. Sometimes rules.That strikes the right balance between the overarching prisoners want to be moved of their own volition, for aim of the system and the detailed way in which the example if they get into debt in prison or they are being management of the prison should be carried out. bullied, and sometimes they do things that require them Let me be clear about the importance of family ties to be moved. At other times, for example if there is a and relationships. Lord Farmer refers to that as a major disturbance in a prison, it makes sense to disperse golden thread that runs through prison life, which is prisoners to deal with it. When that happens, we why from autumn 2017 governors will control budgets have the assisted visits scheme for those families who for family services, such as visitors’ centres, family need help. engagement workers and family learning, which includes As we embark on reorganising the prison estate, we parenting skills classes. Those reforms will help governors will be designing flexible facilities so that families can to improve the way in which prisoners can engage with visit more easily, and the prisoner’s journey throughout their families. Governors will therefore be able to respond their sentence will be organised in such a way that flexibly to the particular needs of their local prison prisoners spend as much time as possible close to where population in order to put in place the programmes and their families are. That said, that is not always possible services that will be of most benefit. They will be able to because prison life is incredibly complex. However, I deliver a local family offer that best meets the needs of take on board the points made by the shadow Minister. their prisoners, helping them to develop and maintain positive family ties and reducing the risk of reoffending. Michael Tomlinson: I have listened carefully to the My hon. Friend rightly said that we need consistent Minister and am grateful for his considered response to practice across the estate. The ideas that Lord Farmer my amendment. All I ask is that when Lord Farmer’s has generated, which we are considering, will help to report is widely disseminated, he does not close his deliver such consistency. I hope that I have provided my mind to the possibility of the amendment’s wording hon. Friend with the necessary reassurance and ask him being in the Bill. Obviously that will depend on timing. to withdraw his amendment. At present I am content not to press the amendment. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Yasmin Qureshi: We support the amendment. I assume that the hon. Member for Mid Dorset and North Poole Liz Saville Roberts (Dwyfor Meirionnydd) (PC): I tabled it because although everybody says that it is beg to move amendment 4, in clause 1, page 1, line 14, important for offenders to maintain family relationships, at end insert— in reality that is not happening. We find that many a ‘(e) provide for the wellbeing and healthcare of offenders, time the offender is locked away in a prison about 300 including treatment for drug and alcohol misuse and miles away from his or her family, and the families are assuring access to continued relevant support upon unable to visit either because of the great distances release. involved or because they cannot afford to travel several (f) liaise with the Probation and other relevant services to hundred miles or find the time to go—they may have ensure coordinated rehabilitation of offenders.’. young children or be elderly. There are all sorts of This amendment ensures that it is within the purpose of a prison to issues. Therefore, in reality families are unable to maintain ensure offenders receive the appropriate physical and mental contact with the offender, and the offender is unable to healthcare, as well as necessary rehabilitative support upon release. maintain contact with their family. The Chair: With this it will be convenient to discuss A number of constituents have come to me about amendment 12, in clause 1, page 1, line 14, at end this. A young woman has just had a second child, the insert— husband has gone to prison and he has never seen his ‘(da) maintain and promote physical and mental health of baby. She wants the father and the child to know each prisoners.’. other, but because the distance to travel is so great and it This amendment requires the purposes of prisons to include the is often so costly, in reality that is not happening. I ask wellbeing of prisoners. 81 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 82

Liz Saville Roberts: The amendment concerns the Ministry of Justice is committed to working closely wellbeing and healthcare of offenders, the relationship with my colleagues at the Department of Health, NHS with bodies such as probation and the co-ordinated England and Public Health England, to help to provide rehabilitation of offenders. Despite reforms, the evidence the right support and healthcare in prisons. is clear that the physical and mental healthcare we offer There is already a statutory underpinning to the our prisoners still needs to be addressed. The purpose health of prisoners; ensuring that prisons are safe is of prisons is undoubtedly to protect the public, rehabilitate already one of the aims contained in the statutory and keep prisoners safe and prepare them for a life purpose. Our duties under the Human Rights Act 1998, outside the institution. I welcome the inclusion of those which, as I have said already, incorporates the European concepts in this part of the Bill. However, it seems to be convention on human rights, are also relevant to prisoner an obvious omission not to recognise specifically prisoners’ wellbeing and healthcare. For instance, under article 2 healthcare needs, both mental and physical. Equally, we must take active steps to prevent suicide and self-harm although the need to prepare offenders for life outside in custody. Under article 3 prisoners must be detained of prison is stated in the Bill, there seems to be somewhat in conditions compatible with respect for their human a lack of foresight when it comes to expressing how dignity and not be subjected to distress or hardship that prison should ensure a smooth transition into our goes beyond the suffering inherent in detention; the communities by liaising with external organisations. article also requires that, given the practical demands of Let me inform the Committee of the statistics on imprisonment, prisoners’ health and wellbeing should healthcare: prisoners are 12 times more likely to suffer a be adequately secured. personality disorder and 16 times more likely to suffer There are also already many processes and protections from psychosis; 10% to 14% of prisoners suffer a major in place in prisons to protect prisoners’ health. For depressive illness; two out of three have a personality example, health needs assessments help to ensure that disorder; seven out of 10 have alcohol abuse issues; and accurate information is available on the provision of a third have a drug addiction on entry. I shall raise healthcare needed in each prison; and we are introducing hepatitis C specifically under a later amendment. new training for prison staff, including awareness training The Government’s own regulator on the standard of on supporting prisoners with mental health issues, so healthcare in prisons, the National Guideline Centre, that governors and staff better understand the mental which is funded by the National Institute for Health health issues of the prisoners they are helping to support. and Care Excellence, said last year that it had become As set out in the National Health Service Act 2006 as clear that healthcare provision in prisons was typically amended by the Health and Social Care Act 2012 and poorer than in the general community and not sufficient regulations, healthcare in English prisons is commissioned to meet prisoners’ needs. If we do not recognise that directly by NHS England. That is important because it most basic of obligations, healthcare in prisons is likely is right that healthcare in prisons should be delivered by only to slide. That in turn will mean a risk of significantly clinical experts. Governors do not have the qualifications worse outcomes, both for offenders in prison and those or the capability to make clinical decisions about patients, leaving prison. By not recognising the need for a prison so it is right that responsibility for those decisions to cater for the basic needs of its inmates, we will should lie with those professionals who can ensure that continue to fail to address key issues that contribute to patients receive the best care. criminal and disruptive behaviour inside and outside Governors are already under a legal duty, under prisons, which of course will only burden the state prison rule 20, to work in partnership with local healthcare further in the long run. providers to secure access to the same quality and range The amendment would add new paragraph (f) to of services as the general public receive from the national proposed new section A1 of the Prison Act 1952; that health service. Part of that involves making sure that relates to the need for prisons to look outwards as well governors facilitate access to the healthcare provided by as inwards, to properly reintegrate offenders back into NHS England, including giving security clearance to communities. The Bill indicates that it is entirely within the right people and providing escorts to appointments. the prison that an inmate will become proficient in skills However, as set out in the Government’s “Prison Safety and learn to deal with demands in the way that reintegration and Reform” White Paper in November 2016, we want requires. The reality is of course very different. A prison to go further. must liaise with a plethora of organisations across the public, private and third sectors to ensure that offenders 10.15 am have the best possible chances of reintegrating. New paragraph (f) would ensure that that reality was reflected Governors need to be able to work alongside NHS in the Bill. England to commission and tailor services to fit the needs of their prison. That is why we are putting in I recognise, of course, that clause 1 could become a place enhanced co-commissioning arrangements, to ensure list as long as my arm; however, I feel that the two that NHS England continues to secure universal parity relatively modest additions in the amendment would of healthcare for prisoners and that clinical decisions reflect the necessity and reality of the way modern are properly overseen by those qualified to make them, prisons function, which is not, of course, in isolation. I while ensuring that governors work in partnership with will not press the amendment to a vote now, but I hope health commissioners to commission services that fit that the Government will give it proper consideration their own prisoners’ health and mental health needs. and a full response. Co-commissioning enables governors to influence commissioning decisions where they have identified Mr Gyimah: The Government are very aware of the particular needs related to their prison, while ensuring serious challenges that mental health, drug and alcohol that NHS England retains overall responsibility for issues pose for offenders and the prison system. The universal healthcare and maintaining clinical standards. 83 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 84

My Department will always have a considerable interest Why did those people do those things? Because they in the health of offenders, and I assure the Committee were addicted and they needed to find money quickly. that this area will remain an important priority for the They needed to sell something and get their next fix, to Government. use a colloquialism. Therefore, as I think everyone Listed under “Purpose of prisons” are: knows, a lot of people who come into prison already have substance or alcohol abuse problems, and they still “(b) reform and rehabilitate offenders, have those problems when they leave prison. It is therefore (c) prepare prisoners for life outside prison, and appropriate for the Committee properly to consider this (d) maintain an environment that is safe and secure”. issue, so we very much support the amendment moved It is my view that three of the four purposes cannot be by the hon. Member for Dwyfor Meirionnydd. It is one achieved without regard to the health, wellbeing and thing to say what should happen in theory, but that is mental health of offenders; it is implied in the Bill. not happening in reality. In reality, there is not enough Rehabilitating offenders includes, for example, looking provision in the Prison Service to deal with substance at drug and alcohol misuse: anyone would want to do so and alcohol abuse,and we know that that causes reoffending to rehabilitate them. It has to happen in prison but and violence. This really important issue needs to be often also when offenders leave prison and are supervised addressed. by the probation services. More broadly, preparing prisoners for life outside Mr Gyimah: I thank the shadow Minister for her prison has to take these things into account. The Bill points; I will make a couple of brief points in response. focuses on the system as a whole—the “what”. The I agree that the level of violence—particularly violence “how” is how governors and other agencies in the related to the use of new psychoactive substances such system deliver the purposes. So I hope that hon. Members as spice and mamba—is too high. In September, we will agree that the prison purpose already requires us to rolled out a new drug test for psychoactive substances—the take offenders’ physical and mental health seriously. first and only such test in the world—so we are aware of As we heard in the evidence session yesterday, all the the issue and we are dealing with it. panellists agreed that having a long list here would We are all aware that prisons are difficult places with defeat the purpose of having a common aim in statute. some very difficult people to manage. The question is A prison that aims to be safe will ensure that offenders’ whether we need provision in the Bill to manage these physical and mental health needs are addressed, and a issues. I contend that we need effective practice. When it prison that aims at rehabilitation and preparing prisoners comes to mental health, for example, we should ask for life outside prison will ensure that offenders are whether processes work well in every prison and whether given the support they need to address their health, our prison officers are properly trained to identify how substance abuse or alcohol dependency issues. I hope people present when they have mental health problems. that hon. Members will be persuaded that the Government I spoke to one of the people who works in our prisons are committed to prisoners’ mental and physical health about these issues, and they said that when a prisoner and that they will withdraw the amendment. has a mental health problem or is considering taking their life, they enter a dark place and seek to cover their tracks and not really show what is happening internally. Yasmin Qureshi: Although everyone is aware that, These are issues that we really need to train people on theoretically, prisoners are treated for drug or alcohol the ground to deal with. misuse, in reality it is not happening. In reality, substance I suggest that the amendment be withdrawn. This is abuse is leading to more disturbances in prison and, of about effective practice on the ground. We are alive to course, causing much reoffending. We are spending these issues, and we will get to grips with them by somethinglike£16billiontacklingreoffending,sosomething empowering governors to work closely with the is not going right. Many people are coming into prison agencies that matter, rather than by adding another list because they are addicted to drugs or alcohol. I remember to the Bill. from my 20 years of prosecuting and defending in the criminal law that many of my clients and some whom I was prosecuting, often involving domestic violence, for Liz Saville Roberts: I thank the Minister for his example, were there because one partner was normally comments. I note that he referred exclusively to NHS drunk and, in an argument, would start hitting out at England. Healthcare is devolved in Wales; prisons are their partner. not. That in itself raises the question, to what degree are Young people I would see, who were often committing we consistent in our approaches, and does this issue what we would call low-level offences—although I do really need to be raised? not like to use that term—were often addicted to drugs. Others eloquently made the point that mental health So, for example, they might be walking past a car with a problems and alcohol and drug addictions are so significant door open or a window down, and if they saw a purse, among the prison population that their treatment is they would take it; or they might break a window, take a surely critical to both rehabilitation and reducing purse and run off with it because they needed the reoffending. The Bill refers to prisons aiming to money; or a mobile phone, which they could sell to get “maintain an environment that is safe and secure.” money to feed their drug addiction. In the same way, if they walked past a house with an open door and That does not seem to fully reflect the gravity of the nobody seemed to be there, they often thought it was an situation, which we need to respond to. I hope that the ideal opportunity to go in and steal. I am not making Government will consider that. However, I beg to ask excuses for anyone, but that is the reality of how things leave to withdraw the amendment. happened. Amendment, by leave, withdrawn. 85 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 86

Amendment proposed: 12, in clause 1, page 1, line 14, are far off and dependent on reoffending rates that are not at end insert— altogether within the CRC’s gift. CRC total workloads (and therefore income) are less than anticipated when contracts were ‘(da) maintain and promote physical and mental health of signed. As CRCs continue to develop and adjust their operating prisoners.’—(Yasmin Qureshi.) models accordingly, CRCs are hard-pressed and are generally This amendment requires the purposes of prisons to include the giving priority to work that is rewarded with more immediate and wellbeing of prisoners. more substantial payment.” Question put, That the amendment be made. Most concerning, the report also found: The Committee divided: Ayes 7, Noes 9. “Too many prisoners reached their release date without their Division No. 2] immediate resettlement needs having been met, or even recognised.” The problems associated with CRCs are only exacerbated AYES by the lack of co-ordination between relevant agencies. For example, housing is a crucial issue, with up to two Arkless, Richard Qureshi, Yasmin Burgon, Richard thirds of prisoners requiring support to find housing Saville Roberts, Liz Lynch, Holly once released. However, the inspectorates’ report found McGinn, Conor Smith, Nick that prisoners did not know who would help them, what that help would consist of and when they would know NOES what had been done. Many applications for housing made by those responsible were standard applications Gyimah, Mr Sam Swayne, rh Sir Desmond to local authorities. Heald, rh Sir Oliver Tomlinson, Michael Jenrick, Robert At a recent meeting of the all-party parliamentary Opperman, Guy Tracey, Craig group for ending homelessness, however, when we were Philp, Chris Warman, Matt considering prison leavers, all the witnesses agreed that local authorities regard housing former inmates as a low priority. Furthermore, the APPG found: Question accordingly negatived. “Local authorities do not record people who become homeless immediately after leaving prison and we do not know the scale of Yasmin Qureshi: I beg to move amendment 13, in prison leavers who are hidden homeless.” clause 1, page 1, line 14, at end insert— The Bill should attempt to overcome such lacuna by ‘1A Cooperation with agencies mandating closer co-operation between all relevant agencies. (1) The Secretary of State has a duty to co-operate with On mental health, it is crucial to consider the effect of other agencies and bodies whose functions are leaving prison on former inmates. A report published in relevant to the purpose outlined in section (A1). 2013 found that (2) For the purposes of subsection (1), agencies and bodies “those leaving prison are almost seven times more likely to must include— commit suicide than the rest of the population”. (a) local authorities, (b) the National Probation Service, Michael Tomlinson: The hon. Lady mentioned the (c) Community Rehabilitation Companies, and APPG for ending homelessness. Has she had a chance (d) any agency which provides to offenders the to consider the Homelessness Reduction Bill, on the following— Bill Committee for which I had the privilege to serve? It (i) housing, was a private Member’s Bill, and I believe that it has just (ii) education, completed its passage through the Lords as recently as (iii) employment, last week. (iv) health care, (v) treatment for addiction, Yasmin Qureshi: Any additional legislative reform is (vi) mentoring for offenders, or welcome, but problems still exist, which I am speaking (vii) support to families of offenders.’ to. In April 2016, the Centre for Mental Health published a report, “Mental health and criminal justice”, which This amendment requires the Secretary of State to co-operate with other agencies to fulfil the purpose of prisons. called for a new concordat between different Government agencies, so that they can join together better to help It is vital that agencies work together to provide the people leaving prison. best context in which to avoid reoffending. Many of the solutions to offending lie outside prison walls, in education and training, health and social care, accommodation 10.30 am and family support. A duty to co-operate introduced Mr Gyimah: The amendment is about a duty for the under amendment 13 would establish clearly in statute Secretary of State to co-operate with other agencies and the vital importance of agencies working together to bodies whose functions are relevant to the purpose achieve the purposes of prison, and bind them to it. outlined in the Bill. There are already well-established The newly formed community rehabilitation companies ways of working between governors and different agencies are responsible for “through the gate” provision, but a and bodies, some with their own pre-existing legislation. recent joint inspection by Her Majesty’s inspectorates For example, the multi-agency public protection of probation and of prisons into the through-the-gate arrangements provide a process through which the police, resettlement services found that the CRCs probation and prison services work together with other “are not sufficiently incentivised under their contract arrangements agencies to manage the risks posed by violent and to give priority to this work. Payment is triggered by task completion sexual offenders living in the community, in order best rather than anything more meaningful. Additional financial rewards to protect the public. Probation is one of the represented 87 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 88 bodies, along with the police, local authorities, fire and (d) access to health care, rescue authorities and health, represented on community (e) access to time in open air, safety partnerships, which were set up under the Crime (f) weekly time spent in locations other than cells, and and Disorder Act 1998. The responsible authorities (g) Equality Act 2010 requirements.” work together to protect their local communities from This amendment requires the Secretary of State to set minimum crime and help people feel safer. standards to achieve the purposes of prisons. The Bill should require minimum standards in relation Chris Philp (Croydon South) (Con): Will the Minister to the purposes of maintaining safety and decency. confirm whether the Prison Service also works closely According to Silvia Casale’s 1984 publication “Minimum with the Home Office to ensure that we act quickly to standards for prison establishments: a NACRO report”, deport foreign national offenders at the end of their the setting of those standards by the Secretary of State sentence? should establish “certain basic conditions of life to which any human being is Mr Gyimah: I assure my hon. Friend that we work entitled as of right as bare minima while taking into account that closely with the Home Office,which is ultimately responsible a prisoner has forfeited for a period the right to liberty and that for deportation. The Prison Service has to facilitate its the punishment consists in, and is defined as, that deprivation”. work in prisons. There is a lead Ministers group, including The two areas of major concern to us are overcrowding Ministers from the Home Office, the Foreign Office and and understaffing. At the end of February 2017, 77 of the Department for International Development, which the 116 prisons in England and Wales were overcrowded. meets regularly to discuss all the issues about moving Overcrowded prisons currently hold 9,676 more people foreign national offenders under various schemes. than they were designed for. People have to double up in New legislation is not needed to ensure that co-operation cells to accommodate the additional numbers, and that between governors and other agencies and bodies continues; means that almost 20,000 people—nearly one quarter governors do that on a daily basis to ensure that different of the prison population—still share cells that are designed services, from education and employment to healthcare, for fewer occupants, often eating their meals in the same are carried out. That can be seen in the relationships space as the toilet they share. The prison system as a with employers, such as Timpson and Halfords, which whole has been overcrowded every year since 1994. run academies within prison to train offenders for That is largely driven by a rising prison population, employment on release, and in formal arrangements which has nearly doubled in the past two decades. with NHS England to ensure that prisoners have access It is also concerning to note that in February the to the healthcare they need. We are introducing new Ministry of Justice stopped the publication of the monthly performance measures to hold governors to account for overcrowding figures; for many years it has published their performance in a wide range of areas, including monthly figures on individual prisons’ populations. The education and housing, and we expect governors to term “overcrowding” has already been rebranded as work closely with other agencies and bodies to do that. “crowding” by the Ministry, and now that vital indicator The hon. Member for Bolton South East mentioned has been downgraded to an annual publication. The probation and, in particular,the community rehabilitation Government’s White Paper on prison safety and reform companies. I assure her that we are going through a outlines the ambition for a “less crowded” estate, but probation system review and will publish the results contains little by way of concrete proposals to achieve shortly. That will deal with some of the challenges she that aim. Giving evidence to the Justice Committee, the outlined. Furthermore, the National Probation Service—as chief executive of the National Offender Management opposed to the community rehabilitation companies—is Service, Michael Spurr, said that overcrowding would already covered by Her Majesty’s Prison and Probation not be resolved in this or the next Parliament. Service, so the amendment would have the effect of Analysis conducted by the Prison Reform Trust shows creating a duty for the Secretary of State to co-operate a correlation between levels of overcrowding and prison with herself. We already have a formal contract with performance. In the past three years the proportion of CRCs, so it would be unnecessary to create an additional prisons rated “of concern” or “of serious concern” by duty to co-operate. I therefore urge the hon. Lady to the Prison Service has doubled—the number now stands withdraw the amendment. at 31 establishments. The number of prisons rated “exceptional”has actually plummeted from 43 in 2011-12 Yasmin Qureshi: I beg to ask leave to withdraw the to just eight in 2015-16. Overcrowding can affect the amendment. performance of prisons in a number of ways, and it can impact on whether activities, staff and other resources Amendment, by leave, withdrawn. are available to reduce the risk of reoffending. Inspections regularly find a third or more of prisoners unoccupied Yasmin Qureshi: I beg to move amendment 14, in during the working day because prisons hold more clause 1, page 2, line 7, at end insert— people than they should. Overcrowding makes it more “(2A) The Secretary of State must by regulation set minimum likely that basic human needs will be neglected, with standards required to achieve the purpose as detailed in section key parts of prisons such as showers, kitchens, healthcare (A1). centres and gyms facing higher demand than they were ( ) Minimum standards in subsection (3) set under these designed for. regulations must in particular include, but shall not be restricted Overcrowding also has a significant impact on where to, the following— prisoners are held and their ability to progress in their (a) overcrowding of prison cells, sentences. Every day, prisoners are bussed around the (b) prison staff to prisoner ratio, country to more remote locations just to make sure that (c) access to appropriate and education, every last bed space is filled. Prisoners progressing well 89 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 90

[Yasmin Qureshi] points compared with the year ending March 2016. The shortfall of band 3 to 5 officers in post to the target are suddenly told that they have to move on, regardless staffing level at 31 December 2016 was 983, an increase of their sentence plan or where their family and loved of 1 percentage point from 4.3% in September 2016. ones live. Overcrowding is not just a case of two people Over half of prison establishments had a deficit of 5% being forced to share a space and toilet facilities designed or more. for one; it also affects whether a prison has the appropriate Clearly the Government’s supposed recruitment drive activities, staff numbers and other resources necessary is failing. Statistics show that only 18 establishments for the size of its population and to reduce the risk of employ a full complement of band 3 to 5 officers. Some reoffending. 89 prisons are operating with frontline staffing below The Government need to deliver a comprehensive that set through the benchmark process, and the data strategy on prison reform to reduce overcrowding and show that only 14 establishments are operating above the pressures on the system. The amendment would their benchmark level for operational support grades, require the Secretary of State to develop one, and to with 93 operating below that. Without a sufficient number outline the progress in meeting it. If the Secretary of of officers, there is no possibility of each prisoner being State does not do that, there is little hope of prisons allocated a designated member of staff who will be meeting the statutory aims outlined in the Bill. One of responsible for their welfare while in prison. our top priorities is that we believe it is absolutely In his annual report, Her Majesty’s chief inspector of necessary to establish an appropriate ratio of prison prisons, Peter Clarke, said: officers to inmates. “Some prisons still operated temporarily restricted regimes to cope with chronic staffing shortages”. Michael Tomlinson: Has the hon. Lady had the chance to consider the evidence of Martin Lomas, who was Staff reductions mean regular use of restricted regimes, specifically asked about that yesterday? He said that a preventing prisoner access to recreational and rehabilitation ratio would be “a crude measure” and that instead it is services, such as physical exercise, education and training. the quality that matters. Has she had a chance to reflect That would lead to a number of prisoners facing depression on that evidence? and mental health issues, exacerbated by the fact that they are being locked up for, say, 23 hours a day. There Yasmin Qureshi: I sat through the sitting yesterday are no measures in the Bill to deliver better rehabilitation and heard what he said. With respect to him, I think services in prison or to address problems in the probation that is quite a simplistic approach. Of course we recognise service. The major point is that without more staff, the the fact that different categories of prisons might require statutory purposes of prisons will be unachievable. different ratios, but that does not mean we cannot aim Most alarming of all are the increasing levels of for one. Let us face it, it is common sense that if there is violence that have accompanied reductions in staff. one prison officer looking after 12 prisoners, that is not Prisons have become dangerous places to work and right. Trying to work out a ratio is, in fact, very important. dangerous for inmates. That is not acceptable. There were 37,784 reported incidents of self-harm to June Conor McGinn: I wonder whether the deputy chief 2016—up by 6,967, or 23%. We know that more and inspector of prisons would think differently about the more assaults are happening in prisons. We need to crudeness of the measure if he had to do a shift on a ensure that the rise in assaults is dealt with. Overcrowding wing, rather than a visit. is causing so many problems in the Prison Service. We will revisit that subject when we come to new clause 8. Yasmin Qureshi: That is absolutely right. The reality is that prisoner ratios can be worked out. Obviously, I accept that the relationship might be different for category 10.45 am A and category C prisons. However, if we think about Richard Arkless (Dumfries and Galloway) (SNP): how many prisoners there are, the kinds of prisoners Setting a benchmark in relation to prison cell overcrowding and the offences they are in for, it is not beyond human is an admirable objective, but will the hon. Lady be so imagination to work out realistic figures. kind as to delve into the policy aspects that would make The prison population has been stable, at around that benchmark obtainable? We would need to create 85,000. At the same time, a number of prisons have more prisons, let people out or have some kind of closed and prison officer numbers have reduced from assumption against short sentences, which we think is a around 25,000 to less than 18,000. The latest National good idea. Offender Management Service workforce statistics, published in February 2017, show that there was a reduction of 6,450 band 3 to 5 officers between 31 March Yasmin Qureshi: How many people we send to prison 2010 and 31 December 2016. The White Paper proposes is clearly an issue. Many argue that there has been recruiting 2,500 new prison officers. However, the chief sentence inflation in the last number of years. There are executive of the National Offender Management Service, two approaches. The Secretary of State could say that Michael Spurr, confirmed to the Justice Committee in she does not want to look at prison sentencing reform November that the service would need to recruit more in the sense of either reducing prison numbers or sentence than 8,000 officers over two years to achieve a 2,500 inflation. In that case, we need to build a lot of prisons increase, due to failure to retain staff. and recruit a lot of people to man them. The other NOMS statistics show that there has been a fall in option is to look again at sentences and the question of officer numbers over the past 12 months. The latest whether people who are in custody should be. As a calculation of the leaving rate among band 3 to 5 prison senior judge recently said, community service orders, officers is 9%, which is an increase of 1.5 percentage which could be stringent, could be made more widely 91 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 92 available. Presumably that would require the Sentencing overcrowding, which—to be absolutely clear—means Council to revisit sentencing issues, which of course is having more prisoners per cell than it was originally one of the political issues. designed for: two people in a cell designed for one, or It would be good if the Government thought about three in a cell designed for two, which is happening in sentence inflation. We know from the last number of 25% of the prison estate. Section 14 of the Prison Act years that more offences now have longer custodial 1952 provides that every prison will have sentences than 20-odd years ago when I started work. “sufficient accommodation…provided for all prisoners.” As a result, there are more people in prison. If we want It further states: to have a policy of incarcerating people, we must ensure “No cell shall be used for the confinement of a prisoner unless that there are enough prison spaces and enough people it is certified by an inspector”— there to look after them—and to deal with the rehabilitation an officer acting on behalf of the Secretary of State— side, because we spend £16 billion a year on reoffending. Those issues need to be looked at, and there is nothing “that its size, lighting, heating, ventilation and fittings are adequate in the Bill to address them. for health”. Rule 26 of the 1999 rules states: I apologise to colleagues for using statistics, because sometimes people can be blinded by them, but I use “No room or cell shall be used as sleeping accommodation for a prisoner unless it has been certified in the manner required by them to demonstrate a point. The fact is that there has section 14 of the Prison Act 1952… A certificate…shall specify been a large rise in assaults on prison officers and the maximum number of prisoners who may sleep or be confined inmates since 2012. There has also been a large rise in at one time in the room or cell to which it relates”. self-harm and many incidents of people committing Access to appropriate education is governed by rule suicide. It is not surprising that every few weeks it seems 32: a prison riot happens in some part of the country. I know from speaking to prison officers,the Prison Governors “Every prisoner able to profit from the education facilities Association and other people about how they feel really provided at a prison shall be encouraged to do so.” depressed when they go to work in the morning, because Rule 31 provides that a prisoner they do not know what challenge there might be; who “shall be required to do useful work for not more than 10 hours a might assault them or what might happen. That must day, and arrangements shall be made to allow prisoners to work, be addressed. where possible, outside the cells and in association with one another.” We are asking for the principles to be crystallised in statute. When that is done in statute, rather than put Access to healthcare is governed by Rule 20, which somewhere in prison policies or rules, or some manual ensures access to the same quality and range of services tucked away that says, “This is the right way of doing that the general public receive from the national health things”, people have to be aware of it. By having that in service. Rule 30 governs access to time in the open air: the Bill, the measures that need to be achieved are there “If the weather permits and subject to the need to maintain for everyone to look at. good order and discipline, a prisoner shall be given the opportunity to spend time in the open air at least once every day”. Rule 29 governs weekly time spent in locations other Mr Gyimah: The amendment would require the Secretary than cells, allowing one hour of physical activity a of State to set a series of minimum standards to achieve week. As part of the privilege systems set out in rule 8, the purposes of prisons. As I outlined, we want to put prisoners can also get additional time to associate. Like the governor at the heart of reform, ensuring that they all public authorities, prisons are legally bound to comply have the ability to make decisions, innovate and be with the requirements of the Equality Act 2010, including more responsive in meeting the needs of their prison. the public sector equality duty. There is therefore already We are moving away from a centralised bureaucracy a statutory framework for the sorts of issues that the mandating the processes by which that should be achieved. amendment covers. We are empowering governors by giving them the On the ratio of prison staff to prisoners, I agree that levers and controls they need to drive forward reform in we need the right numbers to provide a secure and safe their prisons. However, at the same time we are regime, increase staff confidence and have the resilience strengthening how we monitor and take leadership into to deal with unexpected incidents that take staff away account. That will include a more prominent role for from duty, such as hospital escorts. We are therefore Her Majesty’s inspectorate of prisons in specifically investing £100 million to increase staffing by 2,500 reporting on the effectiveness of leadership in a prison. officers. However, that is only the start of what is We are giving freedom while sharpening accountability. necessary to provide a properly rehabilitative, supportive From April, we will give governors greater authority to regime that engages with prisoners properly. We know do their own workforce planning and design their regime from many sources of evidence that the relationship to fit the needs of their prison; greater power over between staff and prisoners is fundamental in helping service provision in their prison, such as work in partnership prisoners decide to turn away from crime, and that with health commissioners to plan health services; and having the right support and challenges from a trusted greater authority to decide how to spend their budget to prison officer can help them come to that decision. deliver their strategy. Having a positive relationship with staff can also help It is important that the Bill should not inadvertently reduce the drivers of self-harm and self-inflicted deaths. take away control from those who are best placed to run We are therefore changing to a key worker model, as our prisons. However, the amendment raises important mentioned in Lord Harris’s review into self-inflicted issues. I am pleased to confirm that many of them are deaths on the youth estate. There will be a dedicated already addressed by secondary legislation. The Prison prison officer, on the landing, for each prisoner across Rules 1999 include measures to deal with crowding, or the closed estate, on the basis of one officer for six 93 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 94

[Mr Gyimah] through injecting drug use, although there are other potential causes including overseas medical care, tattooing prisoners, on average. They will spend 30 to 45 minutes and receipt of a blood transfusion in the UK prior to each week with their prisoner to deal with complaints, 1991. People are able to live without symptoms for talk about issues that affect them, encourage them to decades after infection, but untreated cases can lead to engage with wider regime activities and challenge offending severe liver problems. Liver disease is one of the five big behaviour. Probation will also be involved for higher killers in the UK, and the only one of those where risk individuals, case managing the prisoner, including mortality is rising, and hepatitis C is the third most sentence planning. That will be done by other prison common cause of it. staff, not officers. The governor will manage the levels Why are prisoners particularly at risk? Hepatitis C of staff in their own establishment, tailoring the model disproportionately affects disadvantaged and marginalised to the needs of the population and regime availability. communities, and around half of people who inject They will be empowered to vary the staffing regime as drugs are estimated to have the virus. With around a they see fit. third of the people in prison having injected drugs, rates It is deceptively simple to propose a fixed staff-to-prisoner of hepatitis C infection are particularly high among ratio. We will ensure that we have the right staffing prisoners. A 2012 study from Scotland estimated rates levels to run safe regimes, but setting out a ratio in of hepatitis C among prisoners to be almost 20%, and primary legislation would not be meaningful. That is we might expect that rate to be similar in other prisons. partly because the ratio varies from prison to prison, Offering testing and treatment for hepatitis C is therefore and also because even within a prison it will vary from a highly effective way of contributing to prisoners’ day to day. I have been in prisons where more staff were rehabilitation; indeed, by allowing them to focus on needed because they had prisoners on bed watch, and I improving their health and wellbeing it is often found have been in prisons that needed more staff on the that they are better placed to address other issues vulnerable prisoner unit at a particular time because of contributing to their offending, such as substance misuse. a problem there. To have a fixed ratio would not exactly It is also essential that this is carried out if prison fit with a prison’s practical needs, and the prison governor, governors are to meet the commitment to improve who understands the needs and is designing the regime, health outcomes. should be the one looking at that. In October 2013, the UK Government agreed to A future Secretary of State could meet the proposed implement blood-borne virus opt-out testing in prisons. ratio by, for example, filling prisons with staff acting as Testing rates for hepatitis C in prisons have improved as turnkeys and guards rather than key workers. That is a result, rising from 5.3% in 2010-11 to 11.5% in 2015-16. why I agree with what the deputy chief inspector of That figure is still too low, however, and progress needs prisons that a fixed staff-to-prisoner ratio would be “a to be made on fully implementing the opt-out testing policy. crude measure”. The most important thing, as we look The prison environment is an ideal one in which to at the system that the Bill will set out, is to look at the test and treat people who lead chaotic lives and may not outcomes from prisons. I hope that explains why we do have previously been in contact with healthcare services. not believe that it would be appropriate to include this With new oral drug treatments becoming available in measure in the purpose, and I beg the hon. Member for recent years, which have considerably shorter treatment Bolton South East to withdraw the amendment. durations and markedly fewer side effects than previous treatments, the opportunity to treat people in prison is Yasmin Qureshi: I beg to ask leave to withdraw the greater than ever before. Achieving a cure for hepatitis C amendment. can be a trigger for long-term addiction recovery and help people to take control of their lives. Offering Amendment, by leave, withdrawn. treatment for hepatitis C can therefore be an important step in helping to prepare prisoners for their release. Liz Saville Roberts: I beg to move amendment 5, in I prepared that speech with the help of the Hepatitis C clause 1, page 2, line 12, at end insert “and Trust, and I would very much like to hear the Minister’s (b) steps taken in relation to meeting health targets response. specified by the Secretary of State on— (i) blood borne viruses, and 11 am (ii) substance abuse, Yasmin Qureshi: We entirely support the amendment including the provision of testing and treatment for and agree with the points that the hon. Lady made. hepatitis C.” This amendment ensures that the Secretary of State’s annual report on prisons includes targets on blood borne viruses and substance abuse and Mr Gyimah: This is a probing amendment concerning analysis of whether they are being met. a duty on the Secretary of State to include as part of her This probing amendment seeks to create an obligation annual report to Parliament the steps taken to meet on the Secretary of State to include in the annual report targets on blood-borne viruses and substance abuse. on prison governance an analysis of progress in meeting Healthcare in prisons is provided by NHS England, health metrics on blood-borne viruses and substance which already uses health and justice indicators of abuse, including the provision of testing and treatment performance and other data to report the performance for hepatitis C. of substance misuse services and blood-borne viruses. Hepatitis C is a blood-borne virus affecting the liver Those data inform NHS practice in commissioning and that can cause fatal cirrhosis and liver cancer if untreated. providing healthcare to prisons. For example, Public Around 214,000 people are chronically infected with Health England, NOMS and NHS England introduced hepatitis C in the UK. Around 90% of cases arise opt-out testing for blood-borne viruses for people in 95 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 96 prison in the first national partnership agreement published This amendment ensures the person appointed as Her Majesty’s Chief in 2013. Full implementation across the whole adult Inspector of Prisons has the necessary independence from Government prison estate in England is planned by the end of the and associated bodies. 2017-18 financial year. Data on the offer and uptake of testing and referral The Chair: With this it will be convenient to discuss for treatment are measured through the health and amendment 15, in clause 2, page 2, line 18, at end justice indicators, which are based on information insert— provided directly by healthcare teams in prisons to ‘(1A) Before Her Majesty makes an appointment under this NHS England and shared with Public Health England. section, the Chair of the Justice Committee of the House of Commons shall recommend for Her Majesty’s consideration an Additionally, data on people treated for substance misuse appropriate person who in its view could satisfactorily carry out in prison and in the community are collected by Public the functions of the Chief Inspector by moving a name on the Health England through the national drug treatment floor of the House.” monitoring system. This amendment provides that the Justice Select Committee should Using those data, under the programme of make a recommendation on the appointment of the Chief Inspector of co-commissioning that the Government are implementing, Prisons. prison governors will be able to work with NHS England to commission healthcare services that meet their individual Liz Saville Roberts: At the moment, there is no statutory prison’s needs. That, of course, can include elements obligation for the person appointed as Her Majesty’s that provide testing and treatment for blood-borne viruses chief inspector of prisons to be independent of Government and substance misuse. I hope I have provided sufficient and associated bodies, and I think we would all agree assurance to the hon. Member for Dwyfor Meirionnydd that it is essential that the chief inspector of prisons is that placing this requirement on the face of the Bill is independent. There are provisions in the Bill to empower unnecessary, as a programme of work is already under prison governors to deliver on extra responsibilities, so way in this area. it is more important than ever that independent chief inspectors of prisons are able to scrutinise and hold Liz Saville Roberts: I beg to ask leave to withdraw the prison governors, as well as the Ministry of Justice, to amendment. account in a way that is beyond any question of bias. Amendment, by leave, withdrawn. We already have the Independent Police Complaints Question proposed, That the clause stand part of the Commission, which in legislation is clearly stated to be Bill. just that—independent. In the Police Reform Act 2002, through which the IPCC was created, there are stringent Mr Gyimah: We have had a full and detailed debate tests precluding candidates with particular backgrounds, on clause 1. It will not surprise hon. Members to know which might bring into question their independence, that in drafting the clause, the Government thought from becoming a chairman or member of the commission. long and hard about what it should contain in view of The Government must recognise that that imposed, and the fundamental changes it makes to the current legislative legislated for, distance between any appointee to the framework. IPCC and a body that that person might investigate is The clause reforms the framework of the prison required also for senior prison inspectors. The inspectorate system, providing aims for the system as a whole to is already advertising itself as an independent body. unite behind, clarifying the role of the Secretary of Surely now is the time to enshrine this common-sense State and sharpening accountability. It modifies the policy in law, both transparently and explicitly. Secretary of State’s overarching responsibility for prisons, I will not press the amendment to a vote at this stage, removing the outdated duty to superintend prisons. The but I hope that the Government will give a detailed clause also reforms and modernises the Secretary of answer explaining why they have not chosen to include State’s accountability to Parliament for the performance this wording in the legislation and whether on reflection of prisons. It replaces the existing archaic requirements they might be amenable to a more specific and stringent to report on operational detail, such as hours of work statement. completed in each prison and number of punishments, with a requirement to account to Parliament for the Yasmin Qureshi: We support any attempt to ensure extent to which prisons are meeting the statutory purpose the independence of the inspectorate from the Government, created by the clause. so we support this amendment. Yasmin Qureshi: We have raised our concerns about the issues we think are important and should be covered Mr Gyimah: These amendments concern the role of in the clause. We hope that the Minister will reconsider Her Majesty’s inspectorate of prisons. Increasing the some of those things on Report. inspectorate’s impact is one part of our plan to have in Question put and agreed to. place effective mechanisms to monitor and improve performance. There will be new performance measures, Clause 1 accordingly ordered to stand part of the Bill. on the outcomes of which governors will be held to account. We will create new three-year performance Clause 2 agreements, which will be phased in over the next two years. HER MAJESTY’S CHIEF INSPECTOR AND INSPECTORATE If we are to hold governors to account for meeting OF PRISONS the new standards, they must be given the power to deliver change. We are devolving key operational policies Liz Saville Roberts: I beg to move amendment 6, in to give governors greater flexibility, and have already clause 2, page 2, line 18, leave out “a” and insert “an cancelled 101 policies to help to reduce bureaucracy independent”. for prisons. 97 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 98

[Mr Gyimah] He decides where and how inspections will be conducted. That includes, for example, whether inspections are We are empowering our leaders, but at the same time announced or unannounced and the frequency of visits. strengthening our monitoring of leadership. That includes The chief inspector publishes his own inspection reports, a more prominent role for HMIP: for the first time in so the findings are not restricted in any way. legislation, the chief inspector will be required to report Following interest from the Justice Select Committee, on the effectiveness of leadership in a prison. We will set we have just finalised a protocol between the Ministry up a new quarterly performance committee, chaired by of Justice and HMIP setting out the terms of engagement thepermanentsecretary.Thecommitteewillreachevidenced between the two organisations. Taken together,we consider assessments of performance, both at individual prison the chief inspector’s independence is clear, and I am level and across the system. We will also make data therefore not persuaded that amendment 6 is necessary. available so that the public and governors can see how Amendment 15 concerns the appointment of the chief prisons are performing across different measures. This inspector. Like other chief inspector posts, this role is monitoring is supported by other assurance activities, subject to the Cabinet Office’s governance code on public such as internal audit, providing a complete view of appointments, which is overseen by the Commissioner prison performance. It is clear that we will not be for Public Appointments. The Commissioner regulates waiting around for the inspectorate to signal problems, the processes by which Ministers make appointments to but within this framework, external scrutiny is vital, public bodies. The appointment therefore follows an too. We need independent, objective assessments of our established transparent process for public appointments. prisons to hold the governors to account. We agree that Parliament should play a role in such an We are seeking in the Bill, and specifically in clause 2, important appointment. The Justice Select Committee to achieve a number of aims for HMIP. I will set those is consulted on the job description and criteria prior to a out before turning to the amendments. First, we are recruitmentbeinglaunched.Thechief inspectorappointment making changes to what the inspectorate is required to is subject to pre-appointment hearing by the Justice report on. Importantly, the chief inspector will continue Select Committee. This allows the Committee to assess to set his own inspection criteria and report to the the preferred candidate and provide its views to the Secretary of State on the treatment of prisoners and the Secretary of State before any appointment. The Cabinet conditions in prison, but in addition, when preparing Office guidance on pre-appointment scrutiny states: inspection reports, the inspectorate must have regard to “In relation to the findings of the Committee, Ministers should the statutory purpose of prison. That will align inspections weigh the views of the committee carefully against the evidence with the new statutory purpose of prison. As I have set from the appointments procedure to reach a final view to ensure out, inspections will also be required to consider the that the decision is made fairly and taking all relevant considerations effectiveness of the leadership in a prison. into account.” Secondly, we are seeking to increase the inspectorate’s There is, therefore, an important role for the Committee, impact: we want inspection reports to lead to improvements. but, overall, I consider that the choice for this critical There is a requirement for the Secretary of State to role should rest with the Secretary of State, who is respond to the findings of an inspection within 90 days. accountable to Parliament for prison performance. Where the chief inspector has significant and urgent I hope that I have been able to set out our plans for concerns about a prison, he can trigger an urgent response strong, external scrutiny of the prison system, with an from the Secretary of State, but as I have outlined, the empowered, independent inspectorate at its heart. The system will not be waiting for an inspection in order to Bill strengthens the independence of the inspectorate, ensure that proper oversight takes place in our prisons. and on that basis I hope that the hon. Lady is able to Thirdly, we wish to enhance the statutory footing for withdraw the amendment. the inspectorate to conduct inspections. For the first time, it is established in legislation that there is an inspectorate of prisons supporting the chief inspector. The Chair: I call the shadow Minister to speak to The clause also gives the inspectorate new powers to amendment 15. enter prisons and to request information so that they have the right tools to do their job. Yasmin Qureshi: We are asking for this provision Finally, clause 2 provides statutory recognition of the because we think it is important that the chief inspector inspectorate’srole in meeting the objectives of the optional of prisons is independent from the Government and protocol to the United Nations convention against torture other associated bodies.I will therefore press the amendment and other cruel, inhuman or degrading treatment of to a Division in a few moments. punishment, or OPCAT. The Justice Select Committee looked at this issue and The final point is relevant to amendments 6 and 15 recommended that the Committee should be able to and is about independence. We have above all in the Bill move the name of the person from the Floor of the sought to maintain the independence of HMIP. I hope House. This corresponds with many other independent the chief inspector would agree with me that his role bodies who have also expressed concern about the apparent includes being able to report freely on what he sees. We lack of independence of the chief inspector of prisons. believe the Bill reinforces such independence. One of the former chief inspectors, Nick Hardwick, has Amendment 6 seeks to make it explicit that “an publicly said that the question of independence is affected independent” person is appointed as chief inspector. when the person somebody is reporting on is the person The independence of the chief inspector derives from who will extend their contract, so there is a question how the inspectorate is set up and how it operates. The about whether they carry on being employed by that chief inspector sets his own inspection criteria, so he person. We therefore say the independence aspect in decides what matters he wishes to look at and report on. this particular appointment is very important. 99 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 100

The Prison Reform Trust has said that the independence The Chair: With this it will be convenient to discuss of Her Majesty’s inspectorate of prisons should be amendment 17, in clause 2, page 2, line 31, leave out bolstered by having the chief inspector appointed by “are in accordance” and insert “must comply”. the Justice Select Committee. The Royal Society for the This amendment requires the work of HMIP to be compliant with OPCAT. Encouragement of Arts, Manufactures and Commerce has stated: Yasmin Qureshi: The purpose of amendments 16 and 17 is to say that the work of Her Majesty’s chief inspector “If the Secretary of State now has a statutory duty to support rehabilitation, with the prisons inspectorate charged with assessing of prisons should be compliant with OPCAT,the optional this, then surely there is a logical and ethical argument for Her protocol to the convention against torture, a treaty that Majesty’sChief Inspector of Prisons to be appointed independently?” supplements the 1984 United Nations convention against The Prison Governors Association has also said that torture. It establishes an international inspection system giving new powers to the chief inspector of prisons is for places of detention and requires “national preventive welcome provided he is able to hold the Ministry of mechanisms”to be independent. Her Majesty’s inspector Justice to account. So we welcome the changes in the of prisons is one of 21 statutory bodies that together legislation which bolster the powers of the chief inspector make up the UK’s national preventive mechanism. We of prisons, but we think that going one step further and know that the Government consider that the UK’snational making him completely independent would make the preventive mechanism is already OPCAT compliant, system even better. but the previous chief inspector of prisons,Nick Hardwick, voiced concerns, as I mentioned earlier, that having to 11.15 am apply to the Government for reappointment compromised Liz Saville Roberts: It is right, I am sure everyone will his independence. Amendments 16 and 17 would make agree, for the chief inspector of prisons to be beyond this commitment to OPCAT explicit and have been any doubt in relation to the independence of his role welcomed by John Wadham, chair of the UK’s national and of his judgment. It seems to me that this should be preventive mechanism. To assume OPCAT compliance stated explicitly in the Bill. Amendment 15 would make is not sufficient. changes to the appointment procedure. That would put what is proposed into effect and on to a robust footing. Mr Gyimah: Clause 2 provides statutory recognition There would then be no doubt in that respect. I have of the chief inspector’s role in meeting the objectives of some difficulty in understanding the Minister’s response, OPCAT.In the context of making changes to the provisions particularly in relation to the explicit use of the terminology in the Prison Act 1952 on the chief inspector, we consider of independence. None the less, I beg to ask leave to it helpful for the statute expressly to recognise the role withdraw the amendment. of the chief inspector in relation to OPCAT. The UK is, Amendment, by leave, withdrawn. and has always been, a strong supporter of OPCAT and we consider that we are fully complying with the Amendment proposed: No. 15, in clause 2, page 2, international obligations contained in the protocol. OPCAT line 18, at end insert— requires states parties to establish a national preventive “(1A) Before Her Majesty makes an appointment under this mechanism to ensure regular, independent inspection of section, the Chair of the Justice Committee of the House of Commons shall recommend for Her Majesty’s consideration an places of detention to prevent torture and other cruel, appropriate person who in its view could satisfactorily carry out inhuman or degrading treatment or punishment. the functions of the Chief Inspector by moving a name on the Clause 2 captures the role of Her Majesty’s inspectorate floor of the House.”—(Yasmin Qureshi.) of prisons in relation to OPCAT.However,the obligations This amendment provides that the Justice Select Committee should contained in the protocol are aimed at the states parties make a recommendation on the appointment of the Chief Inspector of to the protocol—thus, the UK—not the organisations Prisons. that are designated by those states to be members of the The Committee divided: Ayes 7, Noes 9. national preventive mechanism. It would therefore be Division No. 3] inappropriate to place upon the inspectorate international AYES obligations aimed at the UK, as amendments 16 and 17 seek to do. In addition, the inspectorate alone would be Arkless, Richard Qureshi, Yasmin unable to fulfil all the OPCAT obligations. The UK Burgon, Richard Saville Roberts, Liz national preventive mechanism is in fact composed of Lynch, Holly McGinn, Conor Smith, Nick 21 members from across the UK. The statutory recognition of the inspectorate’s OPCAT NOES role is an important change that I know is strongly welcomed by the chief inspector. Given the difficulties Gyimah, Mr Sam Swayne, rh Sir Desmond that I have highlighted, I ask the hon. Lady to withdraw Heald, rh Sir Oliver Tomlinson, Michael the amendment. Jenrick, Robert Opperman, Guy Tracey, Craig Yasmin Qureshi: I beg to ask leave to withdraw the Philp, Chris Warman, Matt amendment. Amendment, by leave, withdrawn. Question accordingly negatived. Yasmin Qureshi: I beg to move amendment 18, in clause 2, page 4, line 19, at end insert— ‘(3A) In preparing a section 5A(2) report, the Chief Inspector Yasmin Qureshi I beg to move amendment 16, in must also consider the effectiveness of practices and procedures clause 2, page 2, line 30, leave out “The provisions in in the prison in relation to the protection of the rights of this Act about” and insert “The operation of”. prisoners.” This amendment requires the work of HMIP to be compliant with This amendment requires the Chief Inspector to report on the rights of OPCAT. prisoners. 101 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 102

The Chair: With this it will be convenient to discuss Amendment 20 would require the Secretary of State the following: to set out what actions they will take to deal with issues Amendment 19, in clause 2, page 4, line 22, leave out raised by the inspectorate. It is not clear in the current “90 days” and insert “60 days” legislation what should happen as a result of an adverse report from the inspectorate. Although there are protocols This amendment requires a response from the Secretary of State within a set timeframe when a HMIP report makes recommendations. on what prisons and other inspected institutions should do, there is no requirement at the moment to accept the Amendment 20, in clause 2, page 4, line 23, at end inspectorate’s recommendations. In line with agreed insert— protocols, inspected bodies should produce an initial ‘(5A) The response must set out the actions that the Secretary action plan, approved by the Secretary of State, in of State has taken, or proposes to take, in response to the response to inspectorate recommendations. The action concerns described in the report.” plan should set out the consequent action taken or This amendment requires the response from the Secretary of State to planned, approved by the Secretary of State. set out actions. Amendment 21 would require a response from the Amendment 21, in clause 2, page 5, line 2, leave out Secretary of State within a set timeframe when an “28 days” and insert “14 days” inspectorate’s report gives rise to significant concerns. This amendment requires a response from the Secretary of State within That is really important, and the response should be a set timeframe when a HMIP report giving rise to significant concerns makes recommendations. given within a shorter period—14 days, instead of 28. The idea behind the amendments is to ensure that when the inspectorate’sreport is produced, the turnaround Yasmin Qureshi: Amendment 18 would require the period is shorter, there is a shorter time limit on action chief inspector to report on the rights of prisoners. being taken and an action plan is put in place to deal That is really important, because it would ensure that with the problems in a prison quickly and effectively. prisons are safe and decent places to be, based upon the That would avoid further deterioration in the prison or set of minimum standards in prisons that we have institution and ensure that prisoner and prison staff proposed are set by the Secretary of State. safety is taken much more seriously. There should be a Amendment 19 would require a response from the much quicker response. Secretary of State within a set timeframe when Her Ordered, That the debate be now adjourned.—(Guy Majesty’sinspectorate of prisons makes recommendations. Opperman.) We believe that 60 days is a more appropriate timeframe and allows any problems to be dealt with a lot more 11.24 am quickly. Adjourned till this day at Two o’clock. PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES

Public Bill Committee

PRISONS AND COURTS BILL

Fourth Sitting

Wednesday 29 March 2017

(Afternoon)

CONTENTS

CLAUSES 2 to 4 agreed to. SCHEDULE 1 agreed to. CLAUSES 5 to 21 agreed to. SCHEDULE 2 agreed to. CLAUSE 22 agreed to. Adjourned till Tuesday 18 April at half-past Four o’clock. Written evidence reported to the House.

PBC (Bill 145) 2016 - 2017 No proofs can be supplied. Corrections that Members suggest for the final version of the report should be clearly marked in a copy of the report—not telephoned—and must be received in the Editor’s Room, House of Commons,

not later than

Sunday 2 April 2017

© Parliamentary Copyright House of Commons 2017 This publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 103 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 104

The Committee consisted of the following Members:

Chairs: MR GRAHAM BRADY,†GRAHAM STRINGER

† Arkless, Richard (Dumfries and Galloway) (SNP) † Qureshi, Yasmin (Bolton South East) (Lab) † Burgon, Richard (Leeds East) (Lab) † Saville Roberts, Liz (Dwyfor Meirionnydd) (PC) Fernandes, Suella (Fareham) (Con) † Smith, Nick (Blaenau Gwent) (Lab) † Gyimah, Mr Sam (Parliamentary Under-Secretary † Swayne, Sir Desmond (New Forest West) (Con) of State for Justice) Thomas-Symonds, Nick (Torfaen) (Lab) Heald, Sir Oliver (Minister for Courts and Justice) † Tomlinson, Michael (Mid Dorset and North Poole) (Con) † Jenrick, Robert (Newark) (Con) † Tracey, Craig (North Warwickshire) (Con) † Lynch, Holly (Halifax) (Lab) † Warman, Matt (Boston and Skegness) (Con) McGinn, Conor (St Helens North) (Lab) † Opperman, Guy (Lord Commissioner of Her Katy Stout, Clementine Brown, Committee Clerks Majesty’s Treasury) † Philp, Chris (Croydon South) (Con) † attended the Committee 105 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 106

Amendments 19, 20 and 21 relate to responses provided Public Bill Committee by the Secretary of State to inspection reports. We want to increase the impact of the inspectorate and we want Wednesday 29 March 2017 inspection reports to lead to improvements. Amendment 19 seeks to shorten the time taken by the Secretary of State to respond to an inspection report, from 90 days (Afternoon) to 60 days. Although I am sympathetic to the intention behind the amendment, which is to ensure a timely [GRAHAM STRINGER in the Chair] response to inspection reports, I would not want that to compromise action needed to implement recommendations. Prisons and Courts Bill Someinspectionreportshavearound80recommendations, which involve contributions from prisons, policy leads Clause 2 and other providers, such as NHS England. It can take time to evaluate inspection reports and then to put in HER MAJESTY’S CHIEF INSPECTOR AND INSPECTORATE place meaningful responses to them, particularly if OF PRISONS recommendations relate to services that are not directly Amendment proposed (this day): 18, in clause 2, provided by the Prison Service, such as health. page 4, line 19, at end insert— Of course, that does not mean that action is not “(3A) In preparing a section 5A(2) report, the Chief Inspector taken before 90 days. Where a report highlights matters must also consider the effectiveness of practices and procedures in the prison in relation to the protection of the rights of of concern, those matters will start to be addressed prisoners.”—(Yasmin Qureshi.) immediately. The 90-day limit to respond to inspection This amendment requires the Chief Inspector to report on the rights of reports is informed by current practice. It enables thorough prisoners. responses to be given to what are serious and detailed reports. 2 pm Amendment 20 seeks to shorten the time for the Question again proposed, That the amendment be Secretary of State to respond to an urgent notification made. from 28 days to 14 days. I must stress that of course action will be taken from day one of an urgent notification The Chair: I remind the Committee that with this we by the chief inspector, but immediate energy should be are discussing the following: focused on securing improvements rather than drafting Amendment 19, in clause 2, page 4, line 22, leave out a report. We consider that 28 days is an appropriate “90 days” and insert “60 days”. period, first to take action and then to present the steps Amendment 20, in clause 2, page 4, line 23, at end that were taken through a report. insert— Finally, amendment 21 would require responses to “(5A) The response must set out the actions that the Secretary inspection reports by the Secretary of State to set out of State has taken, or proposes to take, in response to the actions that have been taken or that will be taken to concerns described in the report.” address concerns. We consider that that is already covered Amendment 21, in clause 2, page 5, line 2, leave out by subsection 2(6), which requires the Secretary of “28 days” and insert “14 days”. State to provide a response to recommendations made by the inspectorate. It will be clear from such a response The Parliamentary Under-Secretary of State for Justice what actions are planned. (Mr Sam Gyimah): Welcome to the Chair, Mr Stringer. Having given these assurances that prisoners’ rights I explained earlier that we are making changes to what will be central to inspections and that we will act Her Majesty’s inspectorate of prisons is required to immediately when significant concerns are highlighted, report on. The chief inspector will continue to set his I ask the hon. Lady to withdraw the amendment. own inspection criteria, but in addition the inspectorate, when preparing inspection reports, must have regard to the statutory purpose of prison, which is set out in the Yasmin Qureshi (Bolton South East) (Lab): I beg to Bill. It must also report on leadership. ask leave to withdraw the amendment. Amendment 18 would require the chief inspector to Amendment, by leave, withdrawn. report on procedures relating to prisoners’ rights. We have discussed how the Bill gives statutory recognition Yasmin Qureshi: I beg to move amendment 22, in of the inspectorate’s role in relation to the Optional clause 2, page 5, line 12, after “prison” insert “at any Protocol to the Convention against Torture and other time”. Cruel, Inhuman or Degrading Treatment. OPCAT is This amendment enables the Inspectorate to enter prisons at any time. about preventing ill treatment of prisoners and HMIP draws on OPCAT in setting out its inspection criteria. Furthermore, section 5A of the Prison Act 1952 The Chair: With this it will be convenient to discuss already requires the chief inspector to report on the amendment 7, in clause 2, page 5, line 20, at end treatment of prisoners and conditions in prisons. The insert— current inspection framework focuses heavily on prisoner ‘(2A) The Chief Inspector may require any person to provide rights. One of the four HMIP “healthy prison tests” is information on— “Respect”, which assesses how far prisoners are treated (a) the adequacy of staffing levels, with respect for their human dignity. Prisoners’ rights (b) the nature of education and literacy programmes, and are therefore already central to the work of the chief (c) the effectiveness of rehabilitation programmes and inspector. re-conviction rates.” 107 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 108

This amendment ensures the Chief Inspector has the necessary powers sentences of imprisonment for public protection and detention to obtain information relating to staffing levels, education programmes, for public protection and must lay a copy of the report before rehabilitation programmes and re-conviction rates. Parliament.” This amendment enables issues relating to IPPs to be debated within Yasmin Qureshi: It is a pleasure to serve under your the long title. chairmanship, Mr Stringer. The purpose of the amendment is to deal with the I will speak to amendment 22 as well as speaking on issue of prisoners who have effectively served their behalf of the hon. Member for Dwyfor Meirionnydd, custodial sentence but who are still waiting to be released who tabled amendment 7. The amendments would enable because they have been detained for public protection. the inspectorate to enter prisons at any time.At the moment It is important because there are currently thousands of there is no guarantee that it has access to an establishment people in that category still in the prison system. We ask at the time of its choosing. Clearly that is unacceptable, that the matter be specifically addressed in the Bill. and it must change. Different duties are performed in The amendment would enable issues relating to sentences prisons at various times of the day and night, and it is of imprisonment for public protection to be debated important that the inspectors be allowed in to observe within the long title of the Bill. It would also allow the the policies and procedures of the prison regime at all Government to outline the steps taken to implement the times. It is important for that to be codified in law. recommendation of the chair of the Parole Board, Nick Amendment 7 would ensure that the chief inspector Hardwick, on the treatment of people currently imprisoned had the necessary powers to obtain information about and serving an IPP sentence. If the sentencing issue is staffing levels, education programmes, rehabilitation not dealt with in the long title of the Bill, it will not be programmes and reconviction rates.Again, that is important possible to address the injustice faced by thousands of because those are crucial markers showing whether a people serving indeterminate sentences for public protection prison fulfils its statutory purposes. They are rightly of years beyond the expiry of their original tariff date. concern to the inspectorate, which should be able to get The Legal Aid, Sentencing and Punishment of Offenders the information. Act 2012 abolished the IPP sentence and introduced powers to change the release test for IPP prisoners. Mr Gyimah: The Bill gives the inspectorate new powers However, although the IPP sentence is no longer an to enter prisons and to request information so that they option for the courts, the powers to change the release have the right tools to do their job. That brings it into test have not been enacted, and Her Majesty’s inspectorate line with other inspection bodies that already have such of prisons has called on the Justice Secretary to take powers. Although the inspectorate currently enjoys good decisive action to reduce the number of people serving co-operation with prisons, the powers put it beyond IPPs who have been held beyond the tariff. doubt that it can request information to complete its Although the rate of release of IPP prisoners has inspections. increased in recent years, the effect of Parole Board Amendment 22 is intended to make it clear that the delays, limited resources, poor procedures for amending chief inspector may enter a prison at any time. We agree risk and the lack of available places on offending behaviour that that is an important requirement for an independent programmes is that a large number of IPP prisoners inspectorate. We consider that access to be implicit in continue to face significant obstacles to working towards the clause, which reflects the fact that inspections can be their legitimate release. According to the Ministry of conducted unannounced. Justice, of the 3,683 people in prison currently serving The purpose of amendment 7 is to make it explicit an IPP sentence, 3,081 have passed their tariff expiry, that the chief inspector can request information on and 603 remain in prison despite having been given an specific areas such as staffing levels and literacy programmes. original tariff of less than two years. I must declare an Paragraph 2 of new schedule A2 to the Prison Act 1952 interest: I have a client who has served his tariff and is requires any person who holds relevant information to still in prison because he is waiting for the IPP procedures provide it to the chief inspector. “Relevant information” to be carried out. That group would not have been able is defined in paragraph 4 of new schedule A2 as information to receive an IPP sentence following the reforms to the needed for the inspection that legislation introduced in 2009. Instead, it is likely that they would have been given relatively short determinate “relates to the running of a prison, or to prisoners detained in a prison”. sentences. The definition is therefore sufficiently broad to capture Statistics released by the Prison Reform Trust in the information described in amendment 7. June 2016 showed that IPP prisoners have one of the highest rates of self-harm in the prison system, and We agree that the inspectorate should be able to get highlighted the impact of ongoing incarceration on the the information and access that it needs. Given those mental health and wellbeing of IPP prisoners. A thematic assurances, I ask that the amendment be withdrawn. review of IPP prisoners published by Her Majesty’s inspectorate of prisons in November 2016 found that Yasmin Qureshi: I beg to ask leave to withdraw the the cost to the public purse of continuing to hold high amendment. numbers of IPP prisoners and the pressure that they Amendment, by leave, withdrawn. exert on the system in terms of risk management activity and demand for offending behaviour programmes and Yasmin Qureshi: I beg to move amendment 23, in parole processes are significant. It stated that clause 2, page 7, line 29, at end insert— “resources are being stretched increasingly thinly.” “(8) Before this section comes into force the Secretary of State It concluded that must prepare and publish a report describing progress made “for many IPP prisoners, it is not clear that holding them well towards the implementation of recommendations of the Chair of beyond their end-of-tariff date is in the interests of public protection the Parole Board concerning the treatment of prisoners serving and therefore there are issues of fairness and justice”. 109 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 110

[Yasmin Qureshi] are also working with the Parole Board to improve further the efficiency of the parole process for these Without a legislative change, the Parole Board has prisoners. confirmed that it will not be possible to reduce the IPP prisoner population below 1,000. It will also be impossible Michael Tomlinson (Mid Dorset and North Poole) to address the particular injustice faced by IPP prisoners (Con): I am very grateful to the Minister for explaining with an original tariff of less than two years or tackle the what is happening. He may recall that I have raised a growing problems of IPP recalls and the disproportionate constituent’s case with him. Will he continue to be alive licence period attached to the IPP sentence. to such cases, so that we can continue to bring those In my excitement, I might have slightly misled the cases to him and he can continue to explain how the Committee when I said that one of my clients is still process will improve in the future? waiting to come out. What I was trying to say is that, in my practice in the past, I have had clients who were Mr Gyimah: Yes, I am always open to representations detained under the IPP and whose sentence expired, but on specific cases, although decisions are made by the years later they were still in the system. One of the main independent Parole Board. Where there are challenges problems was that many of those people had to attend a in the system that hon. Members become aware of, I am number of different types of courses before they were open to receiving representations and will look into released, some of which were very expensive and quite them. Obviously, in order to speed up the process, the lengthy, and the system—the prison, the probation service board has increased its capacity and is successfully and the Parole Board—did not allow them to attend tackling delays in the listing of cases. We are making them in time to be ticked off as having done them. They sure that IPP prisoners have access to accredited offending therefore ended up spending more time in prison than behaviour programmes where appropriate and ensuring they had been sentenced for. That is a very relevant that such programmes can be delivered more flexibly, so issue. There are more than 6,000 people—that is a big that prisoners with particular complex needs, such as figure—who really should be out but are not, and only those with learning difficulties, can have greater access. because the Parole Board was slow in signing them up I should mention, in particular, the progression regime to those courses. at HMP Warren Hill, which has proved very successful, with 77% of IPPs who have had an oral hearing under the regime achieving release. The potential for additional 2.15 pm places within the progression regime is currently being Mr Gyimah: Having listened to the shadow Minister, explored, with the aim of improving the geographical I believe that amendment 23 is a probing amendment, spread of places, including in the north of England. so I will give assurances about the work we are doing on All these measures are already having a significant IPPs. In dealing with all IPPs, public protection is and beneficial impact on the IPP prison population and are will always be of paramount concern to us. I recognise, facilitating the release of prisoners where the Parole of course, the concerns about prisoners serving IPP Board is satisfied that their detention is no longer sentences. We are taking considerable steps to address necessary for the protection of the public. These diverse those concerns and continue to explore what further measures, and the evidence that they are working, shown improvements could be made to the process. by the current highest-ever release rate, demonstrates The amendment would require the Secretary of State that a report of the sort proposed by the hon. Member to prepare and lay before Parliament a report describing for Bolton South East is simply not necessary, and I progress made on recommendations from the chair of therefore ask her to withdraw the amendment. the Parole Board concerning the treatment of prisoners serving IPP sentences. I do not believe that there is a Yasmin Qureshi: I beg to ask leave to withdraw the need for such a report. We work very closely with the amendment. independent Parole Board and its partners on tackling Amendment, by leave, withdrawn. the issues presented by IPP prisoners and will of course Clause 2 ordered to stand part of the Bill. take account of any views or recommendations from its Clause 3 ordered to stand part of the Bill. chair on further improvements that could be made. We do not believe that there should be a statutory requirement on the Secretary of State to report to Parliament in Clause 4 response to such recommendations. THE PRISONS AND PROBATION OMBUDSMAN The Government are already making significant efforts to address the issue of IPP prisoners. Our most up-to-date Richard Arkless (Dumfries and Galloway) (SNP): I figures show that there were 512 first-time releases of beg to move amendment 30, in clause 4, page 9, line 6, at IPP prisoners in 2015, the highest number of releases end insert— since the sentence became available in 2005. I fully “(d) Investigating cases where a person is detained in expect that trend to continue. Figures on releases in 2016 immigration detention facilities for longer than 28 days.”. will be published in April. I believe that these figures This amendment includes as a function of the Prisons and Probation show that the efforts we are making to give IPP prisoners Ombudsman to investigate where a person has been held in immigration support, opportunities and motivation to reduce their detention for more than 28 days. risks and so progress through the system are bearing fruit. Those efforts, which are being taken forward by The Chair: With this it will be convenient to discuss the Parole Board and, from April, the new HM Prison the following: and Probation Service, are encapsulated in an IPP action Amendment 8, in clause 4, page 9, line 14, at end plan. A new unit has been set up within the Ministry of insert— Justice to improve progress in individual IPP cases. We “(f) investigating— 111 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 112

(i) attempted suicides, without trial is an affront to the rule of law, which I (ii) the number and nature of assaults on staff or hold so very dear, having studied law on both sides of prisoners, and our border. (iii) the adequacy of staffing levels to prevent such Let us consider some statistics. Some 7% of detained behaviour; immigrants were detained for longer than six months. (g) investigating the content and effectiveness of rehabilitation Only 23% of those detained leaving Dungavel in Scotland programmes and liaison arrangements with the probation were deported, so by inference 77% were deemed safe. and other relevant agencies to ensure that such In that circumstance, is it proportionate to not have a rehabilitation continues after a prisoner’s release from 28-day limit? It is in the interests of both sides of the custody.”. Committee that following detention or following anybody This amendment expands the remit of the Prisons and Probation coming to this country to settle and make their life, Ombudsman in relation to the investigation of attempted suicides, integration is of paramount importance. Having this assaults in prison and staffing levels as well as powers relating to the investigation of rehabilitation programmes and liaison arrangements. draconian measure and not having safeguards to limit the amount of time that immigrants may be detained Amendment 31, in clause 11, page 12, line 37, at end will not get them off on the best foot in terms of insert— integrating them into our society. That is in no one’s “(1A) The Secretary of State must request the Ombudsman interests. I respectfully suggest that the Government act carry out an investigation relating to detention of any person for and impose a limit to the time that people can be over 28 days in immigration detention facilities including, but detained in immigration centres. not restricted to, the effect on the individuals detained.”. This amendment ensures the Prisons and Probation Ombudsman Yasmin Qureshi: The Committee will be relieved to investigates each case where a person has been held in immigration hear that I am not going to comment on amendments 30 detention for more than 28 days. and 31, as the hon. Gentleman has made an eloquent case for them, but I promised the hon. Member for Dwyfor Richard Arkless: I am sure it is not lost on hon. Meirionnydd that I would speak to amendment 8 on Members that it is almost exactly the hour that those her behalf. awful events happened in Westminster last Wednesday. Amendment 8 would give the ombudsman the functions There are various memorials going on around us. I am of sure all colleagues would back me in saying that we “investigating…attempted suicides…the number and nature of would much rather be at those memorials than here, but assaults on staff or prisoners …the adequacy of staffing levels to business goes on, life goes on, laws continue to be made prevent such behaviour…investigating the content and effectiveness and we have to continue to do our job. of rehabilitation programmes and liaison arrangements with the probation and other relevant agencies to ensure that such rehabilitation The Bill applies only in part to Scotland; specifically, continues after a prisoner’s release from custody.” it applies primarily to immigration detention and its Those are perfectly proper things for the ombudsman processes. Amendments 30 and 31 would ensure to look at, so we ask the Government to consider independent oversight of detention periods in immigration accepting the amendment. Wealso support amendments 30 cases, and that detention happens with due regard to and 31. Home Office rules and the facts of the individual case. Amendment 30 would add to the ombudsman’s powers Mr Gyimah: Before dealing with amendments 30, the function of investigating where a person is held in 8 and 31, I will speak about some of the broader policy detention for more than 28 days. Amendment 31 would objectives of clause 4. The prisons and probation compel the ombudsman to investigate such cases where ombudsman was established in 1994 as the prisons detention exceeds 28 days. ombudsman, following Lord Woolf’s public inquiry into The Government know this debate well. During the the Strangeways prison riots. Over the years, its role and passage of the Immigration Act 2016, an amendment remit have expanded, but despite many calls for it to be tabled by honourable colleagues went further than the put on a statutory footing that has yet to happen. amendment I have moved today. It would have limited The ombudsman plays an essential role, not only by detention for immigration cases outright to 28 days. providing an independent avenue for complaints, which The Government were defeated in the Lords and the can be a source of great tension for prisoners, but by amendment attracted cross-party support in the House investigating deaths in custody, the numbers of which of Commons, but was ultimately unsuccessful. I hope are worryingly high, as all hon. Members will be aware. that closer consideration will be given to this amendment There have been long-standing commitments from than was given to the last. successive Governments to put the ombudsman into The all-party groups on refugees and on migration legislation, and statutory status has been widely supported have concluded very clearly that there should be a by stakeholders, including the Joint Committee on Human 28-day limit. People held in immigration detention have Rights and the Harris review. I am pleased that we can committed no crime, yet their detention is open-ended, finally establish the office in legislation. without limit, and could last for years. In no other I should say that the ombudsman is part of a much sphere of our jurisdiction would we allow that to happen. broader response to the record high levels of self-inflicted It simply would not happen in the rest of the prison deaths and self-harm. We are redoubling our efforts to estate—no one would be held for more than 28 days make prisons places of safety and reform for those at without being placed before a judge—but it happens in risk. The actions that we are taking include rolling out our immigration system. The UK is the only EU country new training across the estate to support our staff in not to have a time limit on immigration detention. The identifying the risks and triggers of suicide and self-harm current position is inhumane, ineffective and hugely and understanding what they can do to support prisoners expensive. Personally,I would say that indefinite detention at risk; putting in place specialist roles—regional safer 113 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 114

[Mr Gyimah] 2.30 pm Amendments 30 and 31 would impose a duty on the custody leads—in every region to provide advice to Secretary of State to request that the ombudsman prisons and to spread good practice on identifying and investigates those instances where a person has been supporting prisoners at risk; and developing our detained under immigration powers for more than 28 days. partnerships with experts, including by providing extra Such investigations would be completely outside the funding for the Samaritans to provide targeted support current administrative remit and proposed statutory to prison staff and to prisoners directly. All that is in the remit of the ombudsman. Published Home Office statistics context of an extra 2,500 staff and the roll-out of new show that of the 28,661 people leaving detention in ways of working that I have already set out, which will 2016, 35% had been in detention for 29 days or more. enable individual prison officers to manage a caseload Using those statistics as an illustration, the amendments of about six prisoners each. That extra capability will would require the ombudsman to investigate more than enable staff to support at-risk prisoners more effectively a third of all immigration detention cases, which would and will enable prisons to run more predictable regimes, have a significant impact on the ombudsman’s workload improving safety. and core functions. That is all happening without legislation; however, If the purpose behind the amendments is to introduce when a death occurs, it is right that it is investigated some form of independent review in those cases where with the utmost seriousness. Having a statutory office detention extends beyond 28 days, I am pleased to say will give the prisons and probation ombudsman more that they are unnecessary. The Home Office has already visible independence, permanency and stronger powers made provision for additional judicial oversight of of investigation. immigration detention by way of an automatic referral Amendments 8, 30 and 31 relate to the ombudsman’s to the first-tier tribunal for consideration of bail after remit. Amendment 8 would widen the remit of the four months in detention. That provision will be commenced ombudsman to include investigating in due course. In addition to duplicating arrangements “attempted suicides…assaults…staffing levels…and effectiveness on the oversight of immigration detention, the amendments of rehabilitation programmes”. would fundamentally change the role of the ombudsman There are already other routes of investigation or scrutiny and are not consistent with the ombudsman’s purpose. for these matters. At present, there is no set category to I hope Members agree that establishing the ombudsman capture data on attempted suicides because it is not in legislation is a hugely positive step that is long possible to determine intent when someone resorts to overdue. The ombudsman’s remit is well established. self-harm. NOMS records all self-harm incidents in The Bill gives the ombudsman a clear framework to prison custody. A self-harm incident is defined as conduct investigations. I hope that the hon. Gentleman “any act where a prisoner deliberately harms themselves, irrespective will therefore withdraw the amendment. of the method, intent or severity of any injury”. Nearly 38,000 self-harm incidents were reported last year, Richard Arkless: I thank the Minister for those words. so it would be neither practical nor desirable for the I will pick up on a couple of points and then make clear ombudsman to investigate them all; however,they are taken whether we will press the amendment to a vote. He very seriously. There are existing systems for treating mentioned that the amendments would compel the the prisoner and for providing support through assessment, ombudsman to investigate 35% of more than 28,000 care in custody and teamwork. Where appropriate, prisons cases. My hope is that if there were a limit, there would investigate internally and take relevant action. not be as many cases to investigate, so I do not think he was making a fair point. Investigating assaults is done through adjudications I appreciate what the Minister said about automatic or by the police, so it should not be a function of the referrals to the first-tier tribunal, but that only triggers ombudsman. In the safety and order section of prison after four months. Frankly, holding someone in detention performance standards, we have included a measure of for four months without placing them in front of a the rate of assaults on prison staff, which we will judge is just as much of an affront to the rule of law as it supplement with an additional measure of staff perception would be open-ended. I cannot agree that automatic of safety within the prison. Governors will be held referrals are a suitable mitigating measure, but we will accountable for the results that they achieve in reducing not press the amendment to a vote this afternoon. We assaults on staff; the inclusion of this measure is designed anticipate that it commands cross-party support, and to drive positive change and improve staff safety.Requiring we think there is a good chance we can make the the ombudsman to investigate the effectiveness of post- Government see sense. We reserve the right to bring release arrangements would be a significant departure back the amendment in full force at a later stage of the from its current remit and would overlap with the work Bill’spassage.I beg to ask leave to withdrawthe amendment. of the probation inspectorate. Amendment, by leave, withdrawn. Clause 11 enables the Secretary of State to request the ombudsman to investigate other matters that may Clause 4 ordered to stand part of the Bill. be relevant to the ombudsman’s remit. In the past, that has included the investigation of an attempted suicide Schedule 1 and rioting at an immigration detention centre. The ombudsman therefore has flexibility to investigate wider THE PRISONS AND PROBATION OMBUDSMAN matters, but that is intended for exceptional cases and not to duplicate other established routes for investigation. Yasmin Qureshi: I beg to move amendment 24, In conclusion, we do not believe that the amendment is page 68, line 5, in schedule 1, at end insert necessary, as other provisions are already in place to “, with the consent of the Justice Committee of the House of cover the functions. Commons.” 115 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 116

This amendment requires the Prisons and Probation Ombudsman to be Clause 7 refers to the position of the Lord Advocate, appointed with the consent of the Justice Select Committee. who leads the system of criminal prosecutions and the Establishing the ombudsman’s independence, similar investigation of deaths in Scotland. It states that the to that of the chief inspector of prisons, is a priority for Lord Advocate’srole as head of the system of investigation a range of stakeholders. The amendment would ensure of deaths in Scotland is not affected by putting the that independence. ombudsman into legislation. That is relevant, because the ombudsman has a duty to investigate the deaths of Mr Gyimah: Amendment 24 relates to the appointment those detained in immigration detention facilities or of the ombudsman. We have already debated the under immigration escort arrangements in Scotland. appointment of the chief inspector, and as the arguments It is intended that the ombudsman will enter into a are similar I will keep my comments brief. memorandum of understanding with the Lord Advocate Like that of the chief inspector, the appointment of to provide a clear framework for both officers to discharge prisons and probation ombudsman is subject to the their independent functions effectively. Cabinet Office’sgovernance code for public appointments, Question put and agreed to. which is regulated by the Commissioner for Public Appointments. It therefore follows an established Clause 5 accordingly ordered to stand part of the Bill. transparent process for public appointments. We consider Clauses 6 and 7 ordered to stand part of the Bill. that the appointment of this critical role should rest with the Secretary of State, who is accountable to Clause 8 Parliament for prison and probation performance. Like the appointment of the chief inspector, that of REPORTS ON DEATHS INVESTIGATED BY THE the prisons and probation ombudsman is subject to a OMBUDSMAN pre-appointment hearing by the Justice Committee. The Justice Committee therefore already has a role in assessing its preferred candidate and providing its views to the Yasmin Qureshi: I beg to move amendment 25, in Secretary of State. I hope Committee members agree clause 8, page 10, line 36, after “recommendations” that Parliament has an appropriate role in the public insert “within 60 days”. appointment process of the ombudsman, and I hope This amendment requires a response from the Secretary of State within the hon. Member for Bolton South East is therefore a set timeframe when a Prisons and Probation Ombudsman report on a death makes recommendations. content to withdraw the amendment.

Yasmin Qureshi: I beg to ask leave to withdraw the The Chair: With this it will be convenient to discuss amendment. the following: Amendment, by leave, withdrawn. Amendment 26, in clause 8, page 10, line 38, at end Schedule 1 agreed to. insert— “(c) the response must set out the actions that the Secretary Clause 5 of State has taken, or proposes to take, in response to the recommendations described in the report.” INVESTIGATIONS OF DEATHS WITHIN THE OMBUDSMAN’S This amendment requires the response from the Secretary of State to set out actions. REMIT Question proposed, That the clause stand part of the Amendment 27, in clause 10, page 12, line 16, after Bill. “recommendations” insert “within 60 days”. This amendment requires a response from the Secretary of State within The Chair: With this it will be convenient to discuss a set timeframe when a Prisons and Probation Ombudsman report on a clauses 6 and 7 stand part. complaint makes recommendations. Amendment 28, in clause 10, page 12, line 16, at end Mr Gyimah: Clauses 5 and 6 set out which deaths fall insert— within the ombudsman’s remit for investigation. They ‘(5A) The response in subsection (5) must set out the actions should be read in conjunction with clause 20, which sets that the Secretary of State has taken, or proposes to take, in out which institutions are in scope. Clause 5 also requires response to the recommendations described in the report.” the ombudsman to investigate any death of a person This amendment is consequential on amendment 27. It requires the who at the time of their death was detained or resident response from the Secretary of State to set out actions. in an institution within its remit. Clause 6 provides the ombudsman with a discretion to investigate deaths that Yasmin Qureshi: Amendment 25 would require the occur when the person is no longer detained or resident Secretary of State to respond within a set timeframe—we in a relevant institution or immigration detention facility, think 60 days is reasonable—after a prisons and probation or subject to immigration escort arrangements. ombudsman report on a death makes recommendations. If the ombudsman is aware of the death of a person Amendment 26 is also designed to elicit a fast response who has recently ceased to be detained in a place that is from the Secretary of State. Just as with Her Majesty’s within his remit and has a reason to believe the person’s inspectorate, the Secretary of State should be required death may be connected with their detention, clause 6 to set out how he or she will respond to the recommendation allows him to investigate the death. The ombudsman of the ombudsman. will determine the extent of the investigation required Amendment 27 is similar, requiring a response from according to the circumstances of the death. For example, the Secretary of State within a set timeframe when the a death that is clearly the result of natural causes may prison and probation ombudsman reports on a complaint require less investigation than an apparently self-inflicted and makes a recommendation. We think that 60 days is death. a reasonable time for the Secretary of State to respond 117 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 118

[Yasmin Qureshi] Clause 10 sets out the reporting requirements and powers following complaints investigated by the to that complaint. Amendment 28 is sequential to ombudsman. Importantly, the nature of reporting and amendment 27 and requires a response from the Secretary publication will be determined by the ombudsman, so of State to set out actions, because in reality there is no that he can maximise the effectiveness of the report in point in having a report if there is no response to set out the light of the intended recipient. Clause 11 makes actions that the Secretary of State will take. We believe provision for the ombudsman to investigate matters that a response should be statutorily encompassed in that relate to the ombudsman’s functions at the request the legislation and that it should be done within the of the Secretary of State. This is a valuable function relevant statutory framework. that we wish to retain in practice. Examples of its use include an investigation of a major fire at Yarl’s Wood Mr Gyimah: These amendments concern the Secretary in 2003 and a more recent suicide in prison. of State’s responses to the ombudsman’s reports. Clauses 8 and 10 currently provide that a response must be provided within a period specified by the ombudsman. Currently,the 2.45 pm ombudsman’s terms of reference establish a 28-day time Clause 12 will give the ombudsman the power to limit for responses to the ombudsman’s recommendations enter premises under his remit in the course of an to set out whether or not a recommendation has been investigation or to carry out his functions. That is one accepted. In practice, the majority of the ombudsman’s of the most important measures in the Bill, giving the recommendations are accepted and responses provided PPO the right tools, for the first time on a statutory to this effect. We consider it preferable to retain flexibility basis, to carry out its functions. for the ombudsman to set the time limit for responding Clause 13 will provide the ombudsman with powers by not providing a statutory timeframe for responses. to acquire access to information that is relevant to an Finally, amendments 26 and 28 would require that investigation. The ombudsman currently enjoys good responses to ombudsman reports by the Secretary of co-operation with institutions, but these powers will put State must set out actions that have been or will be beyond doubt, and in law, that the ombudsman can taken to address concerns. We consider this already require individuals to provide information relevant to covered by clauses 8(5) and 10(5), which require that his investigations. the Secretary of State must provide a response to recommendations made by the ombudsman. It will be Clause 14 makes provision for the ombudsman to clear from such a response what actions are planned. I certify to the High Court—or, in Scotland, the Court of hope that hon. Members will agree that provisions are Session—that a person has unlawfully obstructed the already in place for the ombudsman to require a response ombudsman in the exercise of his powers of entry or within a timescale that he thinks appropriate and for powers to obtain information. Although we do not the Secretary of State to respond on actions to be taken. anticipate that they will be required often, the powers I therefore suggest that the amendment be withdrawn. will help to deter non-co-operation. Clause 15 makes provision for the ombudsman to Yasmin Qureshi: I beg to ask leave to withdraw the notify the police, or appropriate law enforcement agency, amendment. if he believes that there should be a criminal investigation Amendment, by leave, withdrawn. into any matter. That will enable law enforcement investigations to be actioned quickly,while the ombudsman Clause 8 ordered to stand part of the Bill. will retain the ability to stop an investigation in the light of other investigations. Clause 9 Clause 16, which we should consider alongside clause 17, sets out restrictions on the information that the ombudsman INVESTIGATION OF COMPLAINTS BY THE OMBUDSMAN can disclose and makes provision for the ombudsman Question proposed, That the clause stand part of the to share information that he obtains in the course of Bill. his investigations.The clause encourages close co-operation between the ombudsman and other relevant bodies, The Chair: With this it will be convenient to discuss which has important practical application. For clauses 10 to 20 stand part. example, in carrying out an investigation of a death, the ombudsman can share information with a coroner, as necessary. Mr Gyimah: We have discussed the benefits of putting the ombudsman into legislation. I will briefly set out the Clause 18 makes provision for the ombudsman to remaining clauses that establish the ombudsman’sstatutory produce an annual report based on the ombudsman’s role. Clause 9 sets out the eligibility criteria for individuals work in the preceding year, and for the Secretary of who wish to lodge complaints with the ombudsman and State to lay the report before Parliament. That will the powers of the ombudsman in relation to complaints. enable Parliament to have oversight of the ombudsman’s It also provides a power for the Secretary of State to activity that year. make regulations about the type of matters that fall Clause 19 sets out the clauses in the Bill that are not within the ombudsman’s complaint remit. This clause applied to secure children’s homes in Wales. As social will give the ombudsman the discretion required in services is a devolved matter and children’s homes in conducting these investigations and the power to act Wales are regulated by Welsh legislation, we have agreed and enable the Secretary of State to reflect necessary with the Welsh Government that the requirements will changes in the ombudsman’sremit without further primary be provided through Welsh legislation rather than in the legislation. Bill. 119 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 120

Finally, clause 20 provides definitions that are relevant Fundamentally, the clause seeks to provide PCPs to the Bill clauses related to the ombudsman, including with greater independence to conduct interference.Limiting setting out the relevant institutions that are covered by access to mobile phones is necessary. However, a central the ombudsman’s remit of investigating deaths and plank of rehabilitation is ensuring prisoners have sufficient complaints and defining the person in charge of those controlled contact with the outside world. In discussion institutions, which is relevant where the ombudsman with former prisoner officers, we were told that a lack of must be notified of the deaths. I suggest that clauses 9 access to telephones was a major cause of disturbances to 20 stand part of the Bill. in prisons. The Prison Reform Trust has stated that access to Yasmin Qureshi: I want to make a couple of observations. telephones is limited and relatively expensive, hindering We welcome the provisions, which are absolutely right rehabilitation. It has suggested establishing a mandatory and needed in the 21st century. I specifically want to minimum level of access to telephones. The health thank the Government for putting the ombudsman on a charity, Change Grow Live, said: statutory basis and giving him to the power to investigate “We recognise that the use of mobile phones within the prison deaths in immigrations centres, as well as those agencies estate can have negative security implications, but we do believe that escort prisoners from immigration centres to other this could be better managed by ensuring there is wider access to places, so that they are also covered. If somebody tries telephones within prisons, to enable prisoners to maintain contact to obstruct the ombudsman, he can go to the High with friends and families.” Court and the person causing the obstruction can be The Royal College of Psychiatrists states: done for contempt of court. Those are really welcome “The Joint Commissioning Panel guidance for forensic mental provisions that we wholeheartedly support. health services in the NHS…recommends that family support Question put and agreed to. and maintenance and re-establishment of family relationships Clause 9 accordingly ordered to stand part of the Bill. should occur where possible.” Clauses 10 to 20 ordered to stand part of the Bill. The Howard League states: “Steps to increase access to legal methods of communication Clause 21 in prisons would have a much greater impact. Ensuring that prisoners can frequently access affordable payphones with a reasonable amount of privacy to make calls to their families INTERFERENCE WITH WIRELESS TELEGRAPHY IN PRISONS would reduce the demand for mobile phones in prison.” ETC The Public and Commercial Services Union states: Yasmin Qureshi: I beg to move amendment 29, in “It is worth noting that these reforms are long overdue and clause 21, page 19, line 34, at end insert— unions have been arguing for this issue to be addressed for many ‘(8) Before this section comes into force the Secretary of State years.” shall— We are asking for improved, controlled access to (a) carry out a review of arrangements for prisoners to telephones, which will have the benefit of helping the make telephone calls, the cost of such arrangements, prisoners and, we hope, lead to fewer mobile phones the benefits of such arrangements, the level of charges being found illegally in prisons. to prisoners and options for providing an improved and more affordable service, and (b) lay a report before Parliament containing the Secretary Mr Gyimah: As hon. Members will know,technology— of State’s conclusions as a result of the review.” particularly mobile technology—is constantly evolving. This amendment requires a review of prison phone arrangements. The Government are determined that legislation should The reason for the amendment is that everybody keep pace with developments to combat the serious accepts that when somebody is in prison they need to be problem posed by the use of illegal mobile phones in able to communicate with their families. We recognise prison. that mobile phones have also caused problems. In 2015, Illicit mobile phone use is linked to the supply of nearly 17,000 mobile phones and SIM cards were found drugs and other contraband, serious organised crime in prisons in England and Wales. That was an increase and the evasion of public protection monitoring, bringing from around 10,000 in 2014 and 7,500 in 2013. Since further harm to the victims of crime. The scale of the October 2015, data have been collated differently, so issue is stark. In 2016, nearly 20,000 mobile phones and that direct comparisons cannot be made. SIM cards—that is 54 a day—were found in prisons in In 2016, there was a total of 8,813 reported incidents England and Wales. of mobile phone finds and 4,067 reported incidents of Although this is not a new problem, the scale has SIM card finds. Section 1 of the Prisons (Interference increased steadily. In 2013, only about 7,000 mobile with Wireless Telegraphy) Act 2012 already allows the phones and SIM cards were found. To help combat that Secretary of State to authorise governors to interfere with challenge, clause 21 and the associated schedule 2, will wireless telegraphy to disrupt unlawful mobile phone make a number of changes to the Prisons (Interference use. Clause 21 would allow the Secretary of State to with Wireless Telegraphy) Act 2012. In its briefing on authorise PCPs—for example, telecoms and internet the Bill, the Prison Reform Trust stated: service providers—to interfere with wireless telegraphy “We welcome the introduction of sensible and proportionate in prisons. measures to prevent the damaging and illicit trade in mobile The Serious Crime Act 2015 makes provision for prison phones in prisons.” staff or the police to apply to the courts for a The Government welcome the trust’s support for telecommunications restriction order, to require a mobile measures to tackle the many serious problems caused by phone network to stop the use of a phone remotely. illicit mobiles in prison. They are used, as I have said, as Regulations under the Act came into force on a link to the supply of drugs and contraband and serious 3 August 2016. and organised crime. The trust noted that, as well as 121 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 122

[Mr Gyimah] ‘(1) If an authorisation is in force for the prison, any prison officer may, at the prison, in accordance with prison rules, require targeting the supply side, attention should also focus on any prisoner who is confined in the prison to provide a sample of limiting demand by improving the availability of, and blood for the purpose of investigating assaults including spitting and biting, carried out by the prisoner. prisoners’ access to, lawful telephones in prison. Once (2) If the authorisation so provides, the power conferred by again, we agree with the trust. subsection (1) above shall include power— As part of our digital prison programme, we have (a) to require a prisoner to provide a sample of urine, made changes to make it easier for prisoners to use whether instead of or in addition to a sample of telephones in HMP Wayland. Secure telephone handsets blood, and are now available in cells. The deployment started in (b) to require a prisoner to provide a sample of any other September 2016 and was completed in December 2016. description specified in the authorisation, not being This has been repeated at HMP Berwyn, and we are in an intimate sample, whether instead of or in addition the process of extending it across the estate as part of to a sample of blood, a sample of urine or both. the programme. We are then able to reduce the phone (3) In this section— tariff in these institutions to make calls more affordable “authorisation” means an authorisation by the and accessible, and the result has been excellent. Notably, governor; call minutes used in Wayland are up 114% from our “intimate sample” has the same meaning as in Part V baseline week in September. Anecdotal evidence also of the Police and Criminal Evidence Act 1984; indicates noticeable improvement in behaviour. “prison officer” includes a prisoner custody officer within the meaning of Part IV of the Criminal As a result of these encouraging developments, we Justice Act 1991; are now looking at further ways to accelerate the improved “prison rules” means rules under section 47 of this accessibility and affordability of telephony across the Act” whole estate. We are steadily building a body of evidence (4) A person commits an offence if that person fails to comply that shows the benefits which arise from a nudge that with requests to provide samples under subsection (2). simultaneously discourages the illegal use of mobile (5) A person guilty of an offence falling within subsection (4) phones, while encouraging legitimate calls to families, shall be liable on summary conviction to— friends and supporters, by making handsets more accessible (a) imprisonment for a period not exceeding 51 weeks, and affordable.Wewill continue to monitor the effectiveness (b) a fine not exceeding level 5 on the standard scale, or of these measures over the coming months. We intend to retender the national telephony contract this calendar (c) both.”” This new clause to the Prison Act 1952 gives prison officers the power year to reduce call charges to prisoners, while introducing to require a blood sample where the prisoner is accused of certain technologies that block and disrupt illicit mobile phones. assaults. We have given detailed consideration to the need to assist prisoners in maintaining relationships with family Holly Lynch (Halifax) (Lab): It is a pleasure to serve members while they are in prison, as we develop policy under your chairmanship this afternoon, Mr Stringer, on prisoner access to telephone services. I do not believe and I take this opportunity to put on record my thanks that it would be right to accept the amendment, because to the outstanding Library and Clerks, who have been the work to be covered by the review is already under incredibly helpful in assisting me in preparing the new way and will continue. clause. I support new clause 6. In the event that a Further, placing a requirement to conduct a review in prisoner spits at or bites a prison officer, the new clause primary legislation would delay commencement of would give the prison governor the power to request a provisions in the Bill designed to improve our ability to blood sample from that prisoner. Refusal to provide a combat the use of illicit mobile phones in prisons until sample would become an offence in and of itself. such time as a review is carried out. Our work to The new clause follows similar work that I have been improve prisoner access to telephone services will continue, doing with police officers and other emergency service irrespective of a review. I hope therefore that the hon. workers, where spitting and biting have been on the rise Lady is persuaded to withdraw the amendment. as a means of assault. Not only is it a horrible act, but spitting blood and saliva at another human being can Yasmin Qureshi: I beg leave to withdrawthe amendment. pose a very real risk of transmitting a range of infectious Amendment, by leave, withdrawn. diseases, some with life-changing or even lethal Clause 21 ordered to stand part of the Bill. consequences. Arina Koltsova, a law enforcement officer Schedule 2 agreed to. in the Ukraine, died just last year after contracting tuberculosis from an offender who spat at her while she was trying to arrest him. I have sought practical and Clause 22 proportionate ways to improve the situation for those who face such risks as part of their job. TESTING PRISONERS FOR PSYCHOACTIVE SUBSTANCES Question proposed, That the clause stand part of the 3 pm Bill. Over the past 15 years there has been a steady but dramatic increase in the number of reported incidents The Chair: With this it will be convenient to discuss of prison officers being spat at or bitten. In 2000, there new clause 6—Testing prisoners blood following assault— were 35 recorded incidents of spitting. By 2015 this “Testing prisoners blood following assault number had increased to 394. Over the same period ‘(1) The Prison Act 1952 is amended as follows. biting went up from 89 incidents to 291. I want to share (2) After section 16B insert— the stories of two police officers who were spat at: while 0 “Power to test prisoners blood I appreciate that the Bill deals exclusively with prison 123 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 124 officers, I am trying to convey to the Committee the and on to the governor, without giving them the resources very human impact on our public servants, as well as to bring about the improvements that they want to deliver. their families. This is the same regardless of which This clause would be a cost-effective way of making public service is being provided. prison officers that much safer, and I believe that that PCs Mike Bruce and Alan O’Shea of West Midlands focus is missing from the Bill. It is intended to serve as a police both had blood and saliva spat in their faces deterrent and would have a positive impact on safety, while trying to arrest a violent offender. They both had and therefore on the retention of prison officers and to undergo antiviral treatments to reduce the risk of staff. I hope that Members will support this new clause. contracting communicable diseases, and they faced a Yasmin Qureshi: The Opposition support my hon. six-month wait to find out whether the treatment had Friend’s new clause. It is important that prison officers been successful. During that time, PC O’Shea was advised should be able to work in a safe environment and have that he could not see his brother, who was undergoing the right to know if they are being exposed to any cancer treatment, because the risk of passing on an infectious diseases. infection was too high. He was also advised not to see Before I sit down for the last time today, I want his parents, as they were inevitably in regular contact to make a brief observation about clause 22 and the with his brother. PC Bruce had a false positive result for proposal to simplify the legislation so that testing can hepatitis B, and for six months until conclusive test be done for all drugs. Testing alone is not an adequate results came through, he was understandably reluctant response to the problem of drugs and psychoactive to be close to his wife or young children, fearing for substances in prisons. Although it is important, it can their wellbeing. His wife and children also had to be only be of limited value because not all prisoners can be tested because of his false positive result. tested regularly; far greater resources would have to be While PCs Bruce and O’Shea are police officers, their provided. harrowing experiences will be similar to those of prison The Prison Reform Trust has said that testing can be officers up and down the country who are currently partial, but must be intelligence-led. The Howard League undergoing antiviral treatments, because, as it stands, states that, they are powerless to seek clarity about the health of “drug testing alone does little to reduce drug use in prisons. the prisoner at the time of the incident. At the moment, Recent HMIP reports have found that overcrowding and a shortage if a prison officer is spat at, they can take a blood of officers mean that intelligence-led drug tests often do not take sample from an individual only if that prisoner gives place.” permission. Needless to say,the prisoner often deliberately Testing must therefore be intelligence-led. Again, that seeks to prolong the distress and anxiety exerted on the requires greater resources than are available at present. officer for as long as possible by refusing to grant permission or provide a blood sample. This new clause Mr Gyimah: I want to pay tribute to the incredible would deny them the ability to torment a prison officer work that our prison officers and support staff do every in this way and would restore the balance of power. day. They work in an incredibly challenging environment and do a very brave job indeed. The new clause highlights Let us bear in mind that any prisoner can spit. They some of the more challenging circumstances that they do not need to go to the trouble of acquiring or fashioning face when an offender spits or bites a prison officer. I an offensive weapon in order to inflict life-changing also want to put on the record now that I recognise the consequences on another person; they can simply use additional worry and stress that prison officers can face their own bodily fluids. Regardless of whether the spitter waiting, as the hon. Member for Halifax has mentioned, has a communicable disease or not, the inability to often for several months to discover whether, in addition determine that at the time of the incident is leaving to the assault they have suffered, they have contracted a prison officers with no choice other than to undergo transferable medical condition. I therefore welcome the antiviral treatments and face an agonising six-month debate that that raises. I know that the hon. Lady has wait. I have checked with the Prison Officers Association, raised this issue before in relation to assaults on emergency which confirms that a prison officer would be expected workers. The only concern, and why we will resist the to be at work during that six-month wait and could be new clause, is that, as currently drafted, I can see some asked to return to their duties on the same wing as the legal and practical difficulties, which I will outline. individual who has spat at or bitten them. We could put A detailed regime applicable to securing samples a stop to that with this new clause and restore the from prisoners already exists under the powers set out appropriate balance of power, dignity and peace of in a Prison Service instruction in the Prison Act 1952. mind to prison officers. Measures such as this are The powers enable testing for illegal activity and testing already being used in Australia to protect public sector for drugs either by randomised samples or where there workers, and it is worth mentioning at this point that is a suspicion of drug use. Section 16B of that Act this new clause is intended to complement new clause 5, provides a power to test for alcohol. Changes in clause 22 which would create a stand-alone offence of assaulting of the Bill extend testing powers to psychoactive substances. a prison officer. We will have chance to debate the Testing can be voluntary or mandatory and is normally merits of that later in Committee. conducted by urine testing and other non-invasive testing I heard the words of the Minister this morning and I methods. am satisfied that he accepts that retention of prison It is not clear to me, however, where the main focus of officers is a problem. However, while the Bill goes a the power in the new clause lies. Is it for the detection of long way towards giving governors more responsibility crime—proving the assault—or is it to provide information and increases the scrutiny upon them, I do not believe quickly to the prison officer involved about the risk of a that it goes far enough in addressing the pressures that communicable disease? A testing power without specific governors face in prisons. There is a real danger that the safeguards does not serve to understand what the purpose Bill will shift responsibility away from the Government of a test is. 125 Public Bill Committee HOUSE OF COMMONS Prisons and Courts Bill 126

[Mr Gyimah] assault that involves biting may be charged as a more serious offence of assault occasioning actual bodily Also, significant practical issues have to be considered. harm, rather than the lower level common assault, Under PACE, other than urine tests, all intimate samples, depending on the nature of the injuries sustained. Spitting including blood samples, can be taken only by a registered and biting can also be considered as aggravating factors medical practitioner or registered healthcare professional. within the offence, meriting a more severe sentence. Any A blood sample cannot be taken by a police officer under sentence imposed should also,in accordance with sentencing the PACE regime in a similar situation. Prison officers guidelines, be served consecutively to the existing sentence. are simply not trained to take blood samples. They are Finally, there are also some technical issues relating not medical professionals,and the sterile medical conditions to the penalties for failing to comply with a test. I do required are not always available in prisons. not want to labour the points, but I think that the hon. I would also be concerned to avoid situations in which Member for Halifax has raised some important matters prison officers, owing to a lack of medical training and in the debate and, as I said at the outset, I completely the absence of a provision requiring prisoner consent in understand the thinking behind the new clause.I sympathise taking blood samples, found themselves accused of assault. with the intention, but given the legal and practical We need to consider what impact the use of the difficulties in the drafting, we cannot support it at this power would have on the relationship between prisoners point. I therefore urge the hon. Lady to withdraw the and prison officers, which is crucial to successful offender new clause. management. The safeguards on consent, testing processes and data protection are needed for practical and legal The Chair: Order. When we have exhausted the debate, reasons. Without sufficiently circumscribed criteria giving we shall vote on clause 22. The vote on new clause 6, if rise to the power to take samples; without suitably qualified there is one, will happen later in the proceedings. staff to take the samples; and without proper training of staff and fair and proportionate penalties for non- Holly Lynch: I thought that the Minister’s response compliance, the power is unlikely to be compatible with was constructive, and I am grateful. I want to respond article 8 rights, and the Government cannot support it. to some of the issues he raised; I hear his concern. The Having said that, I want to make some additional new clause is about an extension of the powers to test, points about what can be done now. As we set out in our which currently have a focus on drugs, and on identifying “Prison Safety and Reform”White Paper,we are committed them in a prisoner’s system; however, there is a key gap to improving the safety of prisons for all who live and with respect to identifying whether someone has a work there. We do not tolerate any behaviour against communicable disease. staff that undermines their essential work. Staff must As to the intention, I appreciate that the evidence in have the confidence that assaults against them will be question could contribute to a case brought against a met with a robust and swift response. prisoner for biting or spitting at a prison officer; however, To that end, we are taking an evidence-led approach it is about establishing in a timely way whether a prison to improving prison safety. I have already mentioned officer would need to embark on anti-viral treatment. the 2,500 staff in the new key worker regime that we are That is our key focus. I entirely agree that prison officers rolling out. I believe that increased numbers will also would not be qualified to take blood samples from a enable more staff to be available on wings, to increase prisoner and should not do it; what was done would staff confidence in the support that they have available need to involve NHS-qualified staff. from colleagues, and that they will also act as a deterrent I understand the Minister’s points about shortcomings to assaults by prisoners on staff. in the drafting of the new clause, but I am not entirely Additional staff will also mean more predictable satisfied that the measures that he has outlined deal regimes, reducing prisoner frustrations and providing with the issue comprehensively enough; we shall therefore opportunities for purposeful engagement. We already reflect on that before there is an opportunity to vote have a well established process for sanctioning violence later in the proceedings. in prisons. A range of sanctions is available, from Question put and agreed to. downgrading privileges, segregation and adjudications. Cases that are serious enough are heard by an independent Clause 22 accordingly ordered to stand part of the Bill. adjudicator, who has the power to add up to another Ordered, That further consideration be now adjourned. 42 days to a prisoner’s sentence. —(Guy Opperman.) Governors are also required by the published adjudications policy to refer more serious assaults to 3.15 pm the police for investigation. It is worth stressing that an Adjourned till Tuesday 18 April at half-past Four o’clock. 127 Public Bill Committee 29 MARCH 2017 Prisons and Courts Bill 128

Written evidence reported to the House PCB 09 Public and Commercial Services union (PCS) PCB 06 Royal College of Speech and Language PCB 10 Supporting All Falsely Accused with Reference Therapists Information (SAFARI) PCB 07 Catholic Bishops’ Conference PCB 11 Prison Reform Trust PCB 08 John Wadham, Chair of the UK National Preventive Mechanism PCB 12 The Howard League for Penal Reform