Asylum Seekers: Legal Advice

Lord Keen of Elie Excerpts

Monday 5th February 2018 Lords Chamber

[Lord Roberts of Llandudno]

To ask Her Majesty’s Government whether they intend to ensure that every failed asylum seeker, and anyone facing removal from the United Kingdom for whatever reason, has access to adequate legal advice.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, legal aid is available for individuals faced with deportation where they are claiming asylum or challenging their detention. The Government have commenced the post-implementation review of legal aid, which will include the scope of legal aid for immigration and asylum cases.

[Lord Roberts of Llandudno (LD)]

My Lords, the Minister will be aware that many asylum seekers are unable to access legal advice, for different reasons. Some are penniless and others just do not know the procedures. The result is that many of the decisions made by the Home Office are unsound and reversed on appeal. In 2005, 13,000 appeals were allowed. In 2010, 35,000 were allowed and, in 2015, 17,000 were allowed. Therefore, in 10 years 250,000 appeals were allowed—a quarter of a million wrong decisions by the Home Office. Will the Minister please tell me what he is doing to remedy that situation so that we have a procedure that is fair and equable?

[Lord Keen of Elie]

My Lords, all persons detained in immigration removal centres now have access to a duty solicitor and therefore have access to legal advice.

[Lord Beecham (Lab)]

My Lords, it should be axiomatic that legal assistance is available to people facing removal and the Minister has made it clear that that should be the case. However, surely the underlying problem is the shameful record of the Home Office in this area. We read regularly that people who have been living in this country for decades, often working and having led a successful life here, are now being ordered to depart. Will the Government review the performance of the Home Office and its policies in this very sensitive area?

[Lord Keen of Elie]

My Lords, the period for which a person has remained illegally in this country should not be and is not a determinant of their right to remain here. It is necessary to apply the relevant law both to the issue of asylum seekers and those who arrive here unlawfully, not even seeking asylum.

[Lord Thomas of Gresford (LD)]

My Lords, a Bar Council report published last November found that at any one time more than 3,000 people, mostly failed asylum seekers, are held in administrative detention without being convicted of a crime, at a cost of £34,000 each. More than half are ultimately released into the community when their appeals succeed. Last Friday, in the case of VC, an asylum seeker from Nigeria with mental problems, the Court of Appeal slammed the Home Office for misinterpreting its own policy and awarded damages. Will the Minister review the means and merits test applied by the Legal Aid Agency, which academic research shows operates to exclude detainees from legal aid by,

“seizing upon the tiniest thing”,

to declare their applications ineligible?

[Lord Keen of Elie]

My Lords, the Legal Aid Agency is of course independent of Government for very proper and good reasons. The application of LASPO—the legal aid Act—is the subject of internal review at present following an announcement by the then Lord Chancellor in October last year.

[The Lord Bishop of St Albans]

My Lords, research by the Children’s Society shows that unaccompanied and separated children are particularly vulnerable. Only 12 grants for exceptional case funding were made in 2015-16, fewer than 1% of the expected number of cases under the previous system. Hundreds of children are being left without a legal safety net. Can the Minister confirm that the situation of these children will be specifically considered within the review of the Legal Aid, Sentencing and Punishment of Offenders Act?

[Lord Keen of Elie]

My Lords, current figures show that 103 children were put into detention in immigration-related matters in 2016, of which 42 were under 12. Some of those may have been unaccompanied but, under the policy of the 2014 Act, unaccompanied children should not actually go into immigration removal centres; they should be held pending removal decisions. With regard to exceptional case funding, the figures for the first two quarters of 2017 indicate that the success rate for immigration-related applications was 73%. Some 652 applications were made during that period.

[Lord Kirkhope of Harrogate (Con)]

My Lords, we should remember the United Nations convention, which originally set out the criterion for granting asylum: to people in great need of protection. Does my noble and learned friend agree that it is terribly important for us to restate that, and to make sure that asylum is not used as a vehicle for immigration rather than giving the protection that the most extreme cases require?

[Lord Keen of Elie]

My Lords, it is clearly in the interests of genuine asylum seekers that the system for seeking asylum as permitted under the UN convention should not be abused and should not be seen to be abused.

[Lord Bassam of Brighton (Lab)]

My Lords, according to an Amnesty report published in 2017, over 2,000 young people seeking refuge in the UK were deported to Afghanistan between 2007 and 2015, the majority of them since the legal aid cuts were introduced. Does the Minister agree with Amnesty that the UK is in breach of its international obligations and law, and if so what steps do the Government intend to take to put this right?

[Lord Keen of Elie]

My Lords, we do not agree that we are in breach of our international law obligations, nor is it obvious that there is a connection between the figures given by the noble Lord and the availability of legal aid.

Prisons: Careers Guidance

Lord Keen of Elie Excerpts

Wednesday 31st January 2018 Lords Chamber

[Lord Beecham]

To ask Her Majesty’s Government why they have cancelled the contract of the National Careers Service to provide careers guidance in prisons.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the custodial element of the National Careers Service contract has not been cancelled; it will reach its expiry date on 31 March 2018. We are reviewing options for alternative provision as part of wider employment services. We are committed to providing training and advice to deliver effective rehabilitation for the needs of offenders.

[Lord Beecham (Lab)]

My Lords, job coaches, who are likely to replace the present people who deal with prisoners, are not people who visit just before release. Others coming into this position will not provide as good a service as the career advisers, who work with prisoners over a considerable time. Can the Minister say what consultations have taken place on this decision and whether the results will be published in due course? Why have the Government refused to provide information as to the likely number of advisers who will no longer be employed?

[Lord Keen of Elie]

My Lords, the contract for the in-custody National Careers Service element could have been extended by a further period of six months maximum from 31 March 2018. A decision was made not to extend it because an internal review of the service being provided indicated that custody contract performance showed significant inconsistencies of service between institutions. As regards its replacement going forward, I note, for example, that community rehabilitation companies already work with every prisoner 12 weeks prior to release to ensure a personalised plan with respect to employment, and Department for Work and Pensions prison work coaches also work in this field. Indeed, it has been noted, particularly in 2016 by Dame Sally Coates in her review of prison education, that there is overlap and duplication within the current arrangements for supporting prisoners.

[Lord Dholakia (LD)]

My Lords, I declare an interest as in the register. A number of organisations provide services which assist in the rehabilitation of offenders. Does the Minister agree that to remove the National Careers Service will add to the overcrowding problem, thus increasing reoffending rates, which are now at as much as 70% in young offender institutions?

[Lord Keen of Elie]

My Lords, we do not consider that this will contribute to reoffending rates. One of the issues we wish to address with regard to future education contracts is the development of greater autonomy and governor empowerment, which will lead to local commissioning of these services and which we believe will lead to an improvement in them.

[Lord Ramsbotham (CB)]

My Lords, will the internal review that the Minister has just mentioned include looking at organisations which offer the ability to search for jobs online? There is an organisation called Prosper 4, which at the moment has 3,000 jobs on offer to ex-prisoners but only 200 prisoner takers, because the Ministry of Justice and HMPPS seem to refuse to use online job-seeking.

[Lord Keen of Elie]

My Lords, perhaps I should clarify. I referred to an internal review that had been carried out to determine the standard of service being provided under the National Careers Service in-custody contract, and it was that which led to the decision to let the contract terminate at its natural point in March 2018. On the provision of alternative services, and indeed online services, we are of course open to submissions about such a matter, and it will be an aspect of the governor empowerment proposals that we are taking forward.

[Lord Watts (Lab)]

My Lords, can the Government indicate how many people they believe who were released from prison will be in full-time employment 12 months after release?

[Lord Keen of Elie]

I do not have those figures immediately to hand, but I am content to write to the noble Lord, outlining such figures as we have in that regard, and I will place a copy of the letter in the Library.

[Lord Faulks (Con)]

Would the Minister agree with me that one of the encouraging features about jobs and careers for prisoners is the number of times employers from the private sector engage prisoners, while they are still in prison, who turn out to be satisfactory employees who then continue that employment when they leave?

[Lord Keen of Elie]

My Lords, in response to the question from my noble friend, I agree that there have been notable successes in this area, and we should appreciate the work done by some particular employers in this regard. There is one in particular where present indications are that something like 10% of their workforce are former inmates. If we can encourage other employers to take this step forward, we can help to reduce recidivism in the prison population.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, does the Minister agree that one of the biggest barriers to employment is poor literacy skills? Can he say how many people going into prison are functionally illiterate, and how many fewer are not when they come out?

[Lord Keen of Elie]

My Lords, it is unfortunate but true that a very large proportion of those going into prison suffer mental health problems or literacy issues. We attempt to address those during their period in prison. Some improvement is achieved; it is not as great, perhaps, as we would hope, but within our prisons there is a difficult cohort as far as education and literacy are concerned.

Crown Prosecution Service: Disclosure Procedures

Lord Keen of Elie Excerpts

Monday 29th January 2018 Lords Chamber

[Lord Morris of Aberavon]

To ask Her Majesty’s Government whether they intend to set up an independent inquiry into the role of the Crown Prosecution Service and its relationship with police authorities in respect of disclosure procedures in criminal cases.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, following a joint inspectorate report last year, the Attorney-General launched a review of disclosure procedures. This will report in the summer. Last week, the National Police Chiefs’ Council, the College of Policing and the CPS published a joint action plan for disclosure improvement. The House of Commons Justice Committee has now announced an inquiry into disclosure. We have no present intention to institute an additional inquiry.

[Lord Morris of Aberavon (Lab)]

My Lords, I welcome what is being done belatedly, but confidence in the criminal legal system in the Crown courts has been seeping away almost daily. Will the action proposed apply also to the magistrates’ court, where non-proceeding seems to be the norm? Since the DPP, who has made some very bold statements, is obviously struggling with the police, with their limited resources, to provide material for disclosure, will the Attorney-General join the Home Secretary in studying what was done in 1998? There was a failure to prosecute deaths in custody cases, so I appointed a senior ex-circuit judge to do an independent review, and he delivered a damning report in two or three months.

[Lord Keen of Elie]

My Lords, we recognise that compliance with disclosure requirements is vital if there is ever to be a fair trial. On a review of present policy, the Attorney-General’s review will take account of recent reports from judges and Her Majesty’s inspectors, as well as gathering additional evidence from bodies, including the judiciary, the Bar Council, the Law Society, police representatives, and prosecutors. In addition, last week the Attorney-General and the Home Secretary addressed a joint letter to both the CPS and the chief constable of the national policing lead on disclosure and the chief executive of the College of Policing, repeating their expectation that a full review is undertaken of all cases similar to those that have already been identified, to determine whether disclosure has been properly carried out.

[Lord Thomas of Gresford (LD)]

Does the Minister not agree that it would be quite disproportionate for the victim to be required to disclose all her emails and electronic messaging to her attacker and his lawyers to trawl through at considerable public expense? Will the Minister not pursue the suggestion I made in our debate a fortnight ago that there should be a protocol whereby a defendant is required to give key words, such as his name, his nickname, places, people and events, to the prosecution for it to carry out such an investigation and to disclose whatever material he has suggested is produced?

[Lord Keen of Elie]

My Lords, I certainly agree with the indication that it would be disproportionate for a victim or complainer to have to disclose the entirety of their social media communications. It would be intrusive and inappropriate, and would impact upon the willingness of complainers to come forward in particular circumstances, so there has to be a balance. It would also raise very real data protection issues, so we have to take account of that. As regards a protocol, we are reviewing protocols in the context of disclosure, and I noted what the noble Lord said about a keyword search.

[Lord Mackay of Clashfern (Con)]

My Lords, is it feasible for the police to ask the complainer whether they have commented on the relationship in question in any media? I do not mean that they should give any detail, but at least it would alert the police as to whether it was worth looking at. Secondly, it is over 32 years since I had responsibility for these matters in Scotland, but I wonder whether there is any suggestion that this problem exists there.

[Lord Keen of Elie]

I am obliged to my noble and learned friend for his observations. On the police inquiries, as I understand it there is no reason why the police should not make appropriate inquiries of a complainer with respect to her social media and other communications that might be relevant to a particular complaint. In addition, the defence have to submit a schedule outlining their own case, in which they will have the opportunity to identify from the police schedule of material that has been recovered that which should be disclosed for the purposes of trial. On whether a similar issue has arisen in Scotland, disclosure is an issue in all jurisdictions; it is a question of how it is handled. Here we are concerned with the handling issue, not a resource issue.

[Lord Blair of Boughton (CB)]

My Lords, I could not disagree more with the Minister. We are, quite simply, dealing with a resource issue. The law on disclosure is as clear as daylight, but it was written before iPhones and social media came into existence. Does the Minister agree that whatever guidance is issued to the police and their forensic IT investigators, there has to be some concern about whether they have the resources to do this in cases of rape when they also have cases of terrorism and organised crime to deal with?

[Lord Keen of Elie]

My Lords, clearly the development of digital media has increased the demands made on both the police and the prosecution service in the investigation of crime. Indeed, in their most recent report, National Disclosure Improvement Plan, the National Police Chiefs’ Council, the College of Policing and the Crown Prosecution Service indicated that they will develop a joint protocol by March 2018 for the examination of digital media.

[Baroness Chakrabarti (Lab)]

My Lords, on the one hand we have urgent crisis reviews of pending prosecutions for fear of potential non-disclosure and unsafe trials and, on the other hand, we have various women’s groups telling us that the existing law designed to protect women from degrading questioning about their sexual histories is not being applied, and that causes fear as well. To add insult to injury, a notorious sex offender will be released on parole without rhyme or reason and without a voice for the victims of crime. Will the Minister please agree that it is time for the Government to give urgent attention, if not resources, to restoring faith, trust and confidence in our criminal justice system?

[Lord Keen of Elie]

My Lords, what is necessary is that a responsible Government should not arm wave but, instead, respect the rule of law.

Prisons: Action Plans and Special Measures

Lord Keen of Elie Excerpts

Wednesday 24th January 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, all prisons are required to develop comprehensive action plans following Her Majesty’s Inspectorate of Prisons’ inspections. Special measures is a separate internal performance and assurance process for identifying, managing and improving underperforming prisons through agreed and time-bound performance improvement plans. There are currently 10 prisons subject to special measure arrangements.

[Lord Ramsbotham (CB)]

My Lords, I thank the Minister for that very disturbing Answer. I have two further questions. First, in view of the dreadful situation that the Minister has outlined—the chief executive of the Prison and Probation Service has blamed it on his budget being cut by 40% since 2010, despite the increase in the numbers of prisoners—the dropping of the prisons part of the Prisons and Courts Bill and the recent appointment of the fourth Justice Secretary and third Prisons Minister since the 2015 election, how high does prison reform feature in the Prime Minister’s list of priorities?

Secondly, when the noble Lord, Lord Beecham, asked a Question about Liverpool prison before Christmas, I asked the Minister who in Prison Service headquarters was responsible and accountable for the prison. Understandably, he refused to name names. I now ask the question that I have been asking since 1995: is there anyone in Prison Service headquarters who is responsible for any prison or group of prisons, with the exception of high-security prisons, to whom governors who have either special measures or action plans can go to for advice and help?

[Lord Keen of Elie]

Clearly, our prisons remain a priority for this Government. There have been challenging issues, which we need to address and we will address. As regards special measures, when prisons go into special measures, they are provided with central support, which can potentially cover a number of areas, including expert advice, provision—in some instances—of further capital, and direction to the governor and staff of the individual prison.

[Lord Beecham (Lab)]

My Lords, one of the most disturbing features of the crisis in the Prison Service, highlighted at HMP Liverpool, has been shockingly inadequate healthcare. What discussions have taken place between the Ministry of Justice and the Department of Health to improve this situation? Will the Government encourage local authorities, which have responsibility for scrutinising health services, to exercise that function in relation to the provision of healthcare within custodial institutions in their area? I refer to my interest as a member of Newcastle City Council’s Health Scrutiny Committee.

[Lord Keen of Elie]

My Lords, the provision of healthcare within prisons is generally carried out by way of partnership between the prison and the health service. It is on that basis that it is continued. There are ongoing issues over the review of such partnerships.

[Viscount Hailsham (Con)]

My Lords, while endorsing the remarks made by the noble Lord, Lord Ramsbotham, may I suggest that the Ministry of Justice formulates its own action plan to address the continuing incarceration of prisoners held on IPP? Part of that action plan should include releasing those prisoners who have served their minimum term, unless there is some overarching concern about public safety.

[Lord Keen of Elie]

I am obliged to my noble friend. The matter of IPP prisoners is under consideration by the Ministry at the present time. It has of course been highlighted by the recent case of Worboys, which should not be seen, I would suggest, as an indication that we have dropped this matter. We are concerned with the issue of IPP prisoners.

[Lord Lee of Trafford (LD)]

My Lords, all parliamentarians should be sent a copy of the chief inspector’s devastating report on HM Prison Liverpool, showing that half the prisoners were locked in cells during the working day and 37% were drug-positive. The prison had hundreds of broken windows, with cockroach infestation and piles of rubbish, and over 2,000 maintenance tasks were outstanding. How many local, regional and national managers have been dismissed following this shocking indictment?

[Lord Keen of Elie]

My Lords, the conditions the inspectors found at Liverpool prison were unacceptable. Effective measures should have been taken to deal with the issues at a much earlier stage. A full review of all cell accommodation is under way. A programme of window replacement has been approved and in the region of £100,000 worth of toilets and sinks have been ordered for installation. The governor, deputy governor and the director of health services of Liverpool prison have been replaced. We are taking steps to address the situation, but I do not seek to suggest that it should not have been done earlier.

[Baroness Corston (Lab)]

My Lords, during the coalition and up to 2016, 7,000 full-time prison officer posts were abolished. As a result of my freedom of information request, the Government have revealed that the cost of riots since then—due, no doubt, to inadequate staffing—runs to £9,363,964. The contract was with Carillion. Would it not have been better to have kept those prison staff on?

[Lord Keen of Elie]

My Lords, we are halfway to the target of recruiting 2,500 extra prison officers. Reference is made to the past. We, as a Government, learn from the past but we plan for the future.

[The Lord Bishop of Chester]

My Lords, bishops go into prison more often than most Members of your Lordships’ House. There are two prisons in my diocese. The Liverpool prison report is an absolute scandal, so far as I can judge. However, does the Minister agree that many prisons are functioning rather well in the circumstances they face and that there is a good deal that can be celebrated alongside the horror stories, which are indeed dreadful?

[Lord Keen of Elie]

I accept that there have been horror stories and we cannot but be concerned by that. As I indicated, 10 prisons are subject to special measures and receive support but others are functioning effectively. We are taking urgent steps to improve the prison estate.

Sky-Fox Update

Lord Keen of Elie Excerpts

Tuesday 23rd January 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, with the leave of the House, I will repeat a Statement made in the other place by my right honourable friend Matt Hancock, the Secretary of State for DCMS. The Statement is as follows:

“Mr Speaker, I am here in my new capacity as the quasi-judicial decision-maker in relation to the proposed merger between 21st Century Fox and Sky Plc to update the House regarding the CMA’s interim report that it has issued today. The decision-making role is one that my right honourable friend the Member for Staffordshire Moorlands discharged, having met her commitment—given many times on the Floor of this House—to the greatest possible transparency and openness the process allows. And while I come to this fresh, I intend to follow the process of being as open as possible while respecting the quasi-judicial nature of the decision.

As this House well knows, after the proposed acquisition was formally notified to the competition authorities last year, my right honourable friend the Member for Staffordshire Moorlands issued an intervention notice on media public interest grounds; namely, of media plurality and genuine commitment to broadcasting standards. This triggered a phase 1 investigation of the merger, requiring Ofcom to report on the specified public interest grounds and the CMA on jurisdiction. Having received advice from Ofcom and the CMA, in September she referred the proposed Sky-Fox merger to the CMA for a phase 2 investigation on both grounds.

The original statutory deadline for the final report was 6 March, but the CMA has today confirmed that this will be extended by a further eight weeks and that the revised deadline is 1 May. Once I have received that final report, I must come to a decision on whether, taking into account the specified public interest considerations of media plurality and genuine commitment to broadcasting standards, the merger operates or may be expected to operate against the public interest. Following receipt of the final report, I will have 30 working days in which to publish my decision on the merger, so if I receive the CMA’s report on 1 May that would be 14 June.

To be clear, the publication today is the CMA’s provisional findings. I have placed a copy in the House Library. With regards to the need for a genuine commitment to broadcasting standards, the CMA provisionally finds that the merger is not expected to operate against the public interest. On media plurality grounds, the CMA’s provisional finding is that the merger may be against the public interest. It cites concerns that the transaction could reduce the independence of Sky News and would reduce the diversity of viewpoints available to, and consumed by, the public. It also raised concerns that the Murdoch Family Trust would have increased influence over public opinion and the political agenda.

The CMA has identified three remedy approaches and seeks views from interested parties on them. These remedy approaches are: first, to prohibit the transaction; secondly, to undertake structural remedies either to recommend the spin-off of Sky News into a new company, or to recommend the divestiture of Sky News; and thirdly, behavioural remedies that could, for example, include enhanced requirements around the editorial independence of Sky News.

The CMA also recognises that the proposed acquisition of Fox by Disney could address concerns set out in the provisional findings. However, the uncertainty about whether, when, or how that transaction will complete means the CMA has also set out potential approaches, which include introducing remedies which would fall away subject to the Disney-Fox transaction completing.

The CMA has invited written representations on the provisional report’s findings and the potential remedy approaches with 21st Century Fox and Sky—as well as other interested parties—before producing a final report. As such, and given the quasi-judicial nature of this process, I hope the House will understand that I cannot comment substantively on the provisional report before us and I must wait for the final report before I comment. I am, however, aware of the keen interest of the House in this important matter. I know that right honourable and honourable Members will be closely scrutinising the CMA’s provisional findings and will have views on them.

The CMA’s investigation will continue over the coming weeks. It has set out the process for making representations on the remedy options outlined and on the provisional findings, with deadlines of 6 February and 13 February respectively. I feel sure that today’s debate will provide helpful context for that work.

What I am able to confirm today is that I will undertake to keep the House fully informed and follow the right and proper process, considering all the evidence carefully when the time comes to make my decision on receipt of the CMA’s final report. I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord McNally (LD)]

My Lords, I associate myself with the points made by the noble Lord, Lord Stevenson, about the second stage of Leveson and also the remedies that have already been put forward on media regulation. I welcome this Statement and the ongoing commitment of the Secretary of State to keep both Houses informed. I also appreciate the continuing interest of the Minister in this House, the noble and learned Lord, Lord Keen, in the matter. Like the noble Lord, Lord Stevenson, I would welcome a continuation of that informal dialogue. We welcome the interim findings concerning the public interest not being served in terms either of diversity or the influence of the Murdoch Family Trust.

On the commitment to broadcasting standards, I share the concern and puzzlement of the noble Lord, Lord Stevenson. I find it odd that in terms of commitment to broadcasting standards, the proposed merger does not operate against the public interest, echoing an earlier and very disappointing finding by Ofcom. In three continents over 60 years—in Australia, the UK and the USA—Mr Murdoch has been a major factor in lowering standards in both print and broadcast media. I am pleased that the Secretary of State is taking his time to think and consider. Frankly, he has been a little too eager to shoot from the hip in his first few days in office, so this more considered response is welcome.

I still believe that a healthy media ecology rests on a mantra of quality, diversity and choice. All three are threatened by an extension of Murdoch power. It is important to defend the integrity of Sky News, where the lack of 100% control has mitigated against the Murdoch effect. But the Secretary of State needs to go further and consider carefully how we protect our public service broadcast news on the BBC, ITV and Sky News. We need to review the protection of news sources in the light of the impact of new technologies. Here again, Ofcom needs to be proactive in reviewing and bringing advice on these matters.

We must also keep an eye on the implications of the Disney takeover of Fox. Does the Minister have a timetable or guesstimate about how soon the US authorities will come to their conclusions? For we must make sure that any remedies to protect the public interest are real and effective, not simply fig leaves to cover up a surrender to big media power. This is a welcome Statement but it is not the end of the matter. We need a robust Secretary of State to defend the public interest but, on that, I am afraid the jury is still out.

[Lord Keen of Elie]

I am obliged to the noble Lords for their observations. I note that the noble Lords, Lord Stevenson and Lord McNally, would both like to see a continuation of the informal all-party meetings that have taken place. I will of course pass that to the new Secretary of State for his consideration.

I cannot comment upon the terms of the provisional report and I know that Members of this House would not expect me to do so. The final decision will be a quasi-judicial decision for the Secretary of State, one which he will make in the light of the final report and in respect of which he will give reasons. With regard to the Fox-Disney transaction, both Disney and 21st Century Fox have stated clearly that the intention is for 21st Century Fox to continue with its bid of December 2016 before the Disney acquisition is completed. But I am not in a position, any more than any other of your Lordships, to determine when that final process will be completed. It will be subject to procedural issues in the United States of America, quite apart from anything else.

Non-Disclosure Provisions

Lord Keen of Elie Excerpts

Monday 22nd January 2018 Lords Chamber

[Baroness Stowell of Beeston]

To ask Her Majesty's Government whether they intend to review the legality of non-disclosure provisions in settlement agreements.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, non-disclosure provisions in settlement agreements are allowed by law and can have a legitimate purpose. They cannot prevent any disclosure that is required or protected by law. The Government have committed to look at the structures around non-disclosure agreements and the evidence that is coming forward about how they are being used.

[Baroness Stowell of Beeston (Con)]

My Lords, I am grateful to my noble and learned friend for his commitment to look at this complex area of the law. Although he is right that there are protections for certain kinds of disclosure, we still hear about powerful individuals and institutions using non-disclosure agreements—or “gagging orders”—to cover up wrongdoing or serious management failure. I have two questions for my noble and learned friend. As part of his review into this area, could he also look at the roles and responsibility of the lawyers involved in drawing up these agreements, especially when allegations of unlawful behaviour are made? Secondly, what are the Government doing to satisfy themselves that, in the public sector, taxpayers and licence fee payers are not paying for things to be covered up which they have a right to see exposed?

[Lord Keen of Elie]

My Lords, the Employment Rights Act 1996 makes any non-disclosure provisions between any employer and employee unenforceable unless the employee has had independent legal advice. The position of the legal profession, to that extent, is monitored. ACAS has a statutory code and practical guidance on settlement agreements which make it clear that no settlement agreement can include clauses that attempt to prevent or restrict an individual from making a protected disclosure. That applies to the public sector as well as elsewhere.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the noble Baroness raises an important point, because it is wrong that confidentiality, or gagging, clauses in settlements should be used to conceal wrongdoing. But confidentiality clauses do play an important part in encouraging ADR—particularly mediation or arbitration—and in encouraging parties to settle cases rather than fight them in public, all of which we are keen to promote. Will the Government consider further how we might restrict the improper use of such clauses, particularly in employment and sexual cases, without undermining their legitimate use?

--- Later in debate ---

[Lord Keen of Elie]

The Government are conscious of the importance of confidentiality clauses, particularly between employers and departing employees. It may, for example, be important to protect confidential information material to a business. But we are equally concerned to ensure that the limitations are legitimate and that it is not possible to exploit such clauses in order to turn them into what are sometimes termed gagging clauses.

[Baroness Chakrabarti (Lab)]

My Lords, I think all of us, including the Minister, can agree that there are certain clear examples of cases where no court or tribunal should attempt to enforce one of these clauses, because it would be contrary to public policy. For example, the victim of a sex offence should be able to go to the police without anyone enforcing a clause against her. But it gets more complex beyond that. Does the Minister agree that if there are victims who are, de facto, chilled from coming forward, the Government have a role in clarifying and possibly legislating in this area?

[Lord Keen of Elie]

My Lords, the Government have committed to consider the report of the committee that is looking into this issue, and will then determine what further steps should be taken. We would prefer to react to the outcome of that report rather than anticipating it.

[Lord Faulks (Con)]

My Lords, my noble friend Lady Stowell referred to the problem with lawyers. This is a problem that has emerged particularly in Hollywood, where a very powerful industry, which unfortunately has been responsible for exploiting often young women in particular, has allowed them to obtain at least some form of legal advice, but there has nevertheless been a considerable inequality of bargaining power between the two. Does my noble friend not think that the Government ought to be looking at a presumption that unless there is equality of bargaining power, these sorts of agreements should be unenforceable?

[Lord Keen of Elie]

My Lords, I am not sure that the introduction of some form of legal presumption is necessary. Thanks to the Employment Rights Act 1996, if an employee is not given independent legal advice, any non-disclosure provision becomes unenforceable.

Legal System: Prosecutorial Policy

Lord Keen of Elie Excerpts

Thursday 18th January 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I join other noble Lords in congratulating the noble and learned Lord, Lord Morris, on securing this debate.

Justice is at the heart of any democratic society, and providing protection to the public from wrongdoers, while also ensuring that everyone has a right to a fair trial, is at the centre of the rule of law. Fairness means fairness to all—equality of arms—and so, just as the prosecution should have ample opportunity to present its case before an impartial court, so too should the accused have access to relevant evidence and material that might assist them challenge or rebut the prosecution case. The court should provide an environment that encourages complainants and witnesses, sometimes vulnerable or in distressing circumstances, to give their best evidence to aid the court in determining what happened and to reach its verdict fairly. This is clearly an important debate and one of heightened public interest at present in the light of some of the cases that have come to the fore in the media.

Under the Code of Practice for Victims of Crime, complainants are entitled to a range of services throughout the criminal justice process before, during and after the prosecution of the accused. I shall not enumerate them. The noble Lord, Lord Beecham, alluded to them and to the need for us to ensure that the code is properly applied, and I note his observations in that regard. Complainants are also entitled to be informed on whether the suspect is to be prosecuted and, if dissatisfied with a decision not to prosecute, to seek a review of the police or prosecutor’s decision not to prosecute.

Coming to disclosure, let us be absolutely clear that we are at one on this. Compliance with disclosure requirements is vital if there is to be a fair trial, which is in the interests of the complainant, the accused and indeed the whole community. All evidence upon which the prosecution intends to rely must be disclosed to the defendant. Furthermore, the prosecution must disclose any relevant undisclosed material which it is not using as evidence but undermines their case or strengthens the defence case.

Prior to recent events, the Attorney-General had launched a wide review of disclosure procedures in the criminal justice system. His review will consider how processes and policies are implemented by prosecution and defence practitioners, police officers and investigators. This was commissioned following the comprehensive joint inspection of disclosure by Her Majesty’s inspectorates referred to earlier, which concluded earlier in 2017. The scope of the review is wide, covering cases in the magistrates’ courts as well as more complex Crown Court cases and specialist types of cases, including economic crime and sexual offences. The review will examine existing codes of practice, protocols, guidelines and legislation as well as case management initiatives and capabilities across the criminal justice system, including how digital technology is used.

The noble and learned Lord, Lord Morris, alluded to the massive increase in material that has now become available—for example, in the context of sexual cases where social media may play such a significant part. Of course, social media does not just reflect messaging between a complainant and a defendant; there may be social media involved in communication with third parties. There is a massive amount of material there that is potentially relevant to any complaint.

Over and above that, I make one short observation: very often, the defendant will know or not know whether there should exist social media of that kind. We had a recent example of a case where someone complained that photographs on his phone were only produced at a very late hour. What I find somewhat surprising about that case is that the defendant must have known all along whether he had taken such photographs on his phone and whether or not they were there. If there had been timely disclosure of that, it might well have been possible to recover them much earlier than was done.

We know that we have to address the new digital age in this context. Technological developments and the way investigations are conducted are leading to new and emerging issues. The Attorney-General’s review will look at this as well as building on the recent reports on disclosure which have been referred to and identify a number of issues that have arisen with regard to knowledge, skills and training.

The noble Baroness, Lady Brinton, referred to victims’ support. We are increasing expenditure on that. The noble Lord, Lord Beecham, referred to Section 28 provisions on pre-recorded cross-examination special measures in that context. We are addressing this: we want to reduce the stress of court and make sure that vulnerable and intimidated witnesses can give their best evidence. We are rolling out a pre-recorded cross-examination system for vulnerable witnesses in Crown Court centres in England and Wales. This will also be tested in the context of not only vulnerable witnesses but witnesses who are complainants who may be the subject of intimidation, for example.

Helping witnesses and victims give their best evidence is of course a core part of the Crown Prosecution Service’s role, and the CPS aims to do everything it can to help them with the difficult and sometimes traumatic experience of appearing in court. Prosecutors can apply for special measures to allow vulnerable, intimidated or child victims and witnesses to give evidence in court unseen by the defendant. This can be achieved also by using videolinks. Vulnerable people—complainants and witnesses—can receive assistance in giving their evidence through an intermediary in appropriate circumstances.

The noble Baroness, Lady Brinton, touched upon the question of the victims strategy and the extent to which there was room for RIs—registered intermediaries—to be available. We are pursuing that. In 2015-16, we recruited 100 new RIs, doubling the size of the scheme. We are currently running a regional recruitment drive, which we hope will increase the numbers further by about 15% nationally. We appreciate the need to ensure that this is rolled out nationally and is not simply to be found in a few regional hot spots, if I can put it that way.

Mention was made of recent cases of failure of disclosure, in particular the Liam Allan case. The Crown Prosecution Service and Metropolitan Police are jointly conducting an urgent review into the Liam Allan case, which collapsed at trial. Clearly, it is crucial that the circumstances of the case are examined, any wider issues identified and appropriate lessons learned. The findings of that review will be published before the end of this month. It would not be appropriate for me to pre-empt that review and speculate further at this stage. The CPS and the Metropolitan Police are also looking at all live rape and serious sexual offence cases to check that disclosure is being handled appropriately.

The Crown Prosecution Service is committed to working effectively with the police in the context of issues such as disclosure, and indeed doing so from an early stage of any investigation in order to build the strongest possible prosecution case for trial where the case meets the test for charge and to bring to an early conclusion those cases which do not. It is necessary in this context to be fair to the complainant and to the defendant in these circumstances.

The Director of Public Prosecutions has a good relationship with the chair of the National Police Chiefs’ Council, the Metropolitan Police Commissioner and the lead officers for criminal justice on this and other topics. There is regular communication with chief constables in that context.

I note the point made by the noble Lord, Lord Beith, with regard to other systems of prosecution, in particular the position under the Crown Office and Procurator Fiscal Service in Scotland, where of course a distinct jurisdiction is exercised because there the Crown and the procurator fiscal are in a position to direct the police on the conduct of any investigation. I would not like to suggest that one system is better than another at this stage. Clearly, the DPP’s guidance on charging sets out arrangements in England and Wales for the joint working of police officers and prosecutors during the investigation and prosecution of criminal cases. Prosecutors may provide early investigative advice in serious, sensitive or complex cases, and in any case where a police supervisor considers it would be of assistance in helping to determine the evidence, the supervisor will be able to seek advice in that context. I accept that the system in other jurisdictions is different.

The CPS and the police have agreed a joint approach across England and Wales to monitoring and improving the quality of files submitted by the police to the CPS. There may be instances where a police file is submitted to the CPS and then returned in order that further investigation or further inquiry can be made in a particular case.

I touched upon the matter of the progress of the victims strategy that the noble Baroness, Lady Brinton, asked about. The Government have made a commitment to publish a victims strategy in 2018. The new Secretary of State for Justice, sworn in as Lord Chancellor this morning, has not yet had the chance to look at the work done so far in detail, but he clearly regards this as an important part of his agenda, underlined by recent events.

Reference was made to the case of Worboys. The Government believe that there is a strong argument for reviewing the case for transparency and the process for parole decisions and how victims are appropriately engaged in that process. As I mentioned on a previous occasion, there is a distinction between those who are the victims of complaints that have been the subject of successful prosecution and those who have been the victims of complaints that were not proceeded with. In the latter case, the matter of intimation is discretionary rather than obligatory. The Secretary of State made a Statement to the other place on this matter on 9 January. He has spoken to the chair of the Parole Board and the Victims’ Commissioner about what changes might be made in the present circumstances, and the Ministry of Justice will lead the review with the view that decisions can be taken on this by Easter.

Very briefly—as I am living on borrowed time at this point—I shall respond to some points. The noble and learned Lord, Lord Morris, asked me two questions. First, the Attorney-General last discussed non-disclosure with the DPP on Monday 15 January; it is a current issue. The Attorney-General’s review of disclosure was triggered in part as a result of the joint inspectorate report that has been referred to. Progress by the CPS against the recommendations in that report is the subject of regular discussion at the superintendents’ meetings.

I am not going to go into the details of the Worboys case and what was and was not prosecuted. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that perhaps not all appropriate cases had been prosecuted. It would not be appropriate to speculate on that; the CPS has an evidential test to apply, and I would not seek to second-guess the process in that context. However, I would say that Worboys was a case of an IPP sentence but I see no reason why that particular incident should impact directly upon our consideration of how we are going to proceed in the context of IPP sentences in future. That is a matter that has been the subject of ongoing debate and discussion and will no doubt continue to be.

I hope that I have reassured noble Lords that we are concerned about the issues raised here relating to victims, disclosure and the need to keep vulnerable victims and complainants fully informed of the outcome of a prosecution and, indeed, the outcome of any sentence, including issues of parole. I will not go into the details of particular cases that have been mentioned, but I will underline a point made by the noble Lord, Lord Thomas of Gresford: disclosure is central to our system of criminal justice, but it must be proportionate. When we come to deal with these issues, we must respect the rights and interests of the complainant and of the defendant. They are challenging issues; we are addressing them; and we shall address them further in the light of recent events.

I am obliged to noble Lords, and I thank the noble and learned Lord, Lord Morris, again for this debate.

Personal Statement

Lord Keen of Elie Excerpts

Tuesday 16th January 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, on 21 December 2017, in response to a Question asked by the noble Lord, Lord Beecham, I gave information to the House regarding expenditure at Her Majesty’s Prison Liverpool. I advised that there had been no expenditure on cell accommodation since 1994. Further inquiry has disclosed that this was incorrect and that money has been spent on the maintenance of cells at Her Majesty’s Prison Liverpool during this time. Although the information I provided was to the best of my knowledge accurate, I regret that it was not so, and I apologise to the House. I will write to the noble Lord, Lord Beecham, and all noble Lords who asked supplementary questions to clarify the position in more detail, and I will place a copy of that letter in the Library of the House.

Transparency of the Parole Board and Victim Support

Lord Keen of Elie Excerpts

Tuesday 9th January 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, with the leave of the House, I should like to repeat a Statement made in the other place by my right honourable friend the Secretary of State for Justice on the Parole Board’s decision to release John Worboys and the Government’s response to the issues raised by this case. The Statement is as follows:

“I should like to start by echoing the Statement made by my predecessor at the weekend and to express my unreserved sympathy to all the victims. They will never erase the emotional trauma of his crimes and the Parole Board’s decision to order his release must have brought back painful memories. These were horrific crimes, and I take the concerns raised, including by many colleagues in the House, very seriously.

John Worboys was convicted of 19 offences in 2009, and received an indeterminate sentence of imprisonment for public protection with a minimum tariff of eight years in custody. Following the expiry of the tariff, he was eligible for review by the Parole Board, which was required to consider whether to release him.

The board reviewed his case at a hearing on 8 November 2017, by which time he had served 10 years in custody, including a period on remand. A three-person panel considered a detailed dossier of evidence. Its subsequent decision to release him was communicated to my department on 3 January.

There are two main areas of concern that I think it essential to address today: whether the correct procedures were followed in this case; and whether those procedures are right or whether improvements are needed.

Turning first to whether procedures were followed in this case, all victims of the crimes for which he was convicted have a statutory right to receive information about parole hearings and decisions under the victim contact scheme. On the basis of the information I have received since arriving in the department yesterday, it appears that in relation to these victims, those who opted to remain in contact via the VCS were informed of the parole hearing by their preferred method of contact. Of the victims currently in contact with the scheme, those who chose to be informed of the Parole Board decision by phone or email were contacted immediately on 3 January, although the Secretary of State has recently learned that one did not receive the email.

Letters were sent immediately to those who chose to be informed that way, but of course these took longer to arrive. Some victims entitled to this contact chose not to opt in, which is of course their right. Any victims the crimes against whom were not prosecuted do not fall within the statutory remit of the victim contact scheme, so the arrangements are different. Discretionary contact can be considered, but in this instance the National Probation Service has no record of any requests for discretionary contact. However, while it appears that the correct procedures were followed, the fact that some victims learned of the decision from the media suggests that there is scope to review these procedures and examine whether lessons can be learned and improvements can be made. It is a priority for this Government that victims of rape and sexual assault have full confidence in the criminal justice system. Sentence lengths for these horrific crimes have increased by more than 30% since 2010 and more victims are coming forward, but there is still more to do.

I should be absolutely clear that I think the Parole Board should remain an independent body, responsible for making decisions about the ongoing risk that individuals pose after serving their tariff. But I agree with my predecessor’s assessment that there is a strong case for reviewing transparency in the process of parole decisions and how victims are appropriately engaged in that process, and for considering changes in policy, practice or the Parole Board Rules or other guidance or procedures, including the victims’ code. With that in mind, I can confirm that I have instructed my officials to establish a review to examine these questions and I will share more information on this shortly. I think it appropriate that the department leads this work but that it consults victims’ groups and others. I have spoken to the Victims’ Commissioner, the noble Baroness, Lady Newlove, and the chair of the Parole Board, Nick Hardwick, to discuss what changes we could make and how best to draw on their expertise and insight in this review.

Finally, I note that the Justice Select Committee has announced an evidence session. My department stands ready to provide the committee with any information it may require. I intend to prioritise this review so that decisions can be taken before Easter. I hope that this course of action reassures the House of the importance and priority I attach to this. As such, I commend this Statement to the House”.

--- Later in debate ---

[Lord German (LD)]

My Lords, I too express great gratitude from these Benches for the Statement from the Government today, which gives an absolute expression of sympathy for those who have been affected by this case. Because there has been an obvious breakdown in the structure and systems of criminal justice which we are talking about, I wonder whether an apology on behalf of the Government would have been more appropriate at this point.

The Statement we have just heard raises a significant number of issues, many of which link back to legislative processes and rules which have developed over recent decades. Therefore, an understanding of the scope of the review will be necessary to give confidence to the many people who are feeling pain, misery and disgust at what they have seen in recent days. If we are to assuage them and to bring appropriate satisfaction to much of our society, we need to look carefully at the scope of this review.

As the Statement itself expresses it, we are told that the review will answer issues in these two areas: first, transparency in the process for parole decisions and, secondly, how victims are appropriately engaged in that process. This is indeed a focus of public concern at present but behind it lies a set of deeper and wider issues which have been thrown up by this case. We need to ensure that we see a review that touches all these issues if we are to arrive at a satisfactory conclusion to a much deeper issue than that reflected in the Statement. An example which has been thrown up by this case is indeterminate sentences. Nine hundred people were expected to get indeterminate sentences, but by 2012, when they were abolished, 6,000 people had received such sentences. Will the Minister tell us whether there is pressure on the parole system to clear this backlog which has affected the way in which it has dealt with these cases? We need some reassurance on that, not just those of us in this Chamber but the public as well.

Public confidence in the justice system has already been alluded to, particularly in the CPS and the role it played in reducing the number of cases brought to prosecution. It is essential that the public know why that was the case and the impact it has had on the victims and alleged victims who have been so hurt in recent days.

Another area where the concerns of the public need to be assuaged is about the role of the Government and, particularly, of the Home Secretary at the time—she is currently Prime Minister—where two of the victims alleged that their cases were not taken seriously by the criminal system.

The two fundamental issues behind the Statement today are transparency and engagement with victims. The chair of the Parole Board has said that he has lots of plans for more transparency. We need to understand whether he made those views known to the Government and whether the Government took any notice of him in ensuring that openness and transparency occurred. Will the Minister tell us whether the chair of the Parole Board made those points to the Government and what the Government’s response to him was? That is fundamental to the understanding that victims will have.

The second fundamental issue is engagement with victims, which was mentioned in the Statement. We now know that as many as 100 victims did not have their cases taken to court, yet their names are known to the justice system. Will the review deal with those victims as well? This is fundamental. If the names of people who have come forward as being the most hurt—the people who turn to you and say, “I heard this on the television” or “I was asked by a reporter”—are known to reporters, are in the public domain and are well known, why has the penal justice system not brought these matters to their attention? It is clearly laid out in the Statement that at present that is not within the current rules and processes, so some quite significant change is needed to ensure that engagement with victims is properly executed.

The Government say that they are going to bring forward more information shortly. “Shortly” is frequently used in your Lordships’ House and it can mean anything: the next season, the next year, the next Government or whatever. It would be really helpful to know whether we are going to deal with this matter urgently. I know that the Government have said that they intend to bring this matter to a conclusion by March. That is the narrow review which I suspect is what is behind the two issues raised in the Statement, but we need to know a lot more about the processes. We need to understand what victims have gone through. We need to understand what the relationship between the criminal justice system and victims will be.

Fundamentally, there is difference of view as well on the role that the criminal justice system plays. The first stated aim of the criminal justice system is to increase public confidence in it—that appears in this Statement—yet the first aim of the Parole Board is to increase public confidence in its work as an independent body. Somehow or other there is a misconnection there between the one and the other, because having confidence in an independent body and having confidence in the criminal justice system, which is a responsibility of government, in some way do not actually fulfil the needs which this case has thrown up.

I share the anguish of many in this country in relation to the system which this case has thrown up. I share the anguish of many victims who have felt let down by the criminal justice system. I welcome the Statement in so far as it lays out the immediate action to be taken, but I suggest to the Minister that there is a much bigger case lying behind it for examining the whole structure of what happens in these matters.

[Lord Keen of Elie]

My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord German, for their contributions on this issue. It is clearly a matter of deep concern not only to the Government but to the public at large that these issues should have arisen in the way they did. I will seek to address some of the points that have been raised.

I am of course aware that there were a number of allegations directed against Worboys that were not the subject of prosecution. That matter of course falls with the Metropolitan Police and the Crown Prosecution Service, which has to apply its evidential test to the question of whether or not to proceed with a prosecution. The question remains whether there still could be a consideration of those cases that were not the subject of prosecution and which were not taken into account by any admission from Worboys himself. Therefore there is scope for other cases to be the subject of consideration by the police and the Crown Prosecution Service in due course.

As regards the question of how certain claims were dealt with, claims by two victims were of course taken to court, as alluded to by the noble Baroness and the noble Lord, Lord German. Those cases were taken against the Metropolitan Police, and by the Court of Appeal stage damages had been awarded and upheld. The Home Secretary was not engaged in that litigation process at that time. The damages that have been awarded will not be clawed back in any sense—those awards of damages will stand.

However, the decision of the Court of Appeal raised a point of law, and it is because of that point of law that the Home Office became engaged in the appeal process. The matter being taken to the Supreme Court concerns an interpretation of a legal issue and that alone—it is not addressing the merits or otherwise of the awards of damages that were made in those cases. I wish to make that clear. The Home Secretary was concerned that an important point of law should be addressed by the Supreme Court, and I am not going to comment further on that because it is an ongoing litigation.

As regards the observations that were made about the victim contact scheme, that will of course be the subject of the review which is to be undertaken. The Secretary of State is determined that the review should be undertaken as soon as possible, which is why I referred to Easter. At present, there is a process whereby victims can be informed of a parole hearing by their own preferred method of contact, but they are not obliged to accept that there should be such contact. The noble Baroness raised the question of whether there should be an opt-in or an opt-out, and that is a question that may properly be addressed in the context of an ongoing review.

Victims of crimes that were not prosecuted do not fall within the present statutory remit of the victim contact scheme, but there is a discretionary contact process which can be considered by the National Probation Service. In this instance, there is no record of any request for discretionary contact, but again the question of discretionary contact is one that may properly be addressed in the context of the review that is to be undertaken. The resources of the probation service are important in two respects. First, the National Probation Service prepares and submits a risk management plan to the Parole Board for the purposes of the board setting licence conditions if there is to be a release of an IPP prisoner. We have to remember that an IPP prisoner is being released under licence for life, albeit they may have the option to apply after 10 years for the removal of that licence, and they are subject to strict conditions which, if breached, may result in them being returned to prison. Again, it is not open to me to go into the detail of the particular licence conditions because the circumstances of the Parole Board’s decision are not something that it is open to me to comment upon; indeed, I am not aware of them. The Parole Board acts in an independent fashion.

The difficulty that has been underlined by this case is that under present legislative provision the decision-making process of the Parole Board cannot be disclosed. I am not aware at present of any prior requests for a change in that legislative provision but, as the noble Lord, Lord German, observed, the chairman of the Parole Board had come forward to say that perhaps the time had come to address that issue. That will of course be the subject of the review that is going to be undertaken. I appreciate the comment made by the noble Lord, Lord German, about the need for us to consider carefully the scope of that review and its terms. That is why the Secretary of State, having only just come in to office, is going to take a reasonable opportunity to address the process of the review that is to be undertaken in order that we can address that point. If it is necessary and appropriate to change the legislative provisions with regard to the transparency of the Parole Board, that can be done by way of secondary legislation so it would not be held up by the need to contemplate primary legislation in this context.

I hope I have addressed the majority of the concerns raised by noble Lords. In light of the time constraints, I will rest my present submission there.

[Viscount Hailsham (Con)]

My Lords, when I was a junior Minister at the Home Office I had to deal with the release of patients from special hospitals and of life prisoners on tariffs. Does my noble and learned friend agree that risk can never be wholly excluded, and that the question the Parole Board has to determine is whether, given proper and appropriate safeguarding provisions, the risk is an acceptable one? Does he also agree that while the principle of transparency is an important one, prisoners have a right to a degree of privacy? There will be many issues—relating, for example, to their mental or physical health—that cannot be properly put into the public domain.

[Lord Keen of Elie]

I acknowledge the observations made by my noble friend, and they are well founded. The test applied to release by the Parole Board in the case of an IPP prisoner is particularly high and has to be overcome by the prisoner himself addressing the onus. The onus rests on the prisoner to satisfy the Parole Board. However, I entirely accept that we can never exclude risk in this context. These are individuals who have been responsible for violent, and very often violent and sexual, crimes. They do pose a risk. It is a question of determining whether their incarceration should be indefinite or whether society has reached a point where it can decide that the risk is so diminished that they can be safely allowed back out into the community. We in this country do not believe in indefinite imprisonment, nor have we ever done so.

On the question of transparency, I acknowledge that the individual prisoner will have certain basic human rights that have to be respected, but it is necessary for us to take a proportionate approach to that issue, remembering that there are also victims here, not just the perpetrator.

[Lord Laming (CB)]

My Lords, I am sure the Minister will recognise that the House welcomes the review that is to be undertaken. However, would he agree that the review outlined by the Statement is rather narrow? One of the concerns that many of us—certainly the victims—will have is the quality of supervision that will be available on release. It is true, as the Minister has indicated, that the Parole Board will have had a plan based on assessment of risk. However, it is one thing to have a plan but quite another to ensure that it is operated effectively and reliably. Reports that we have had from the inspectorate about the level of supervision provided in some of these cases sometimes not going beyond an occasional telephone call do not give us much cause for comfort. I would be grateful if the Minister could assure the House that the review will look at the capacity of the National Probation Service to provide comfort and assurance to victims and to the wider community.

[Lord Keen of Elie]

I am obliged to the noble Lord. I am not going to close down the terms of a review that are yet to be determined. That will be looked at, it will come into the public domain and it will be open to your Lordships to consider whether to press for a wider review. It would not be appropriate for me at this stage to seek to set down the parameters of the review process.

As regards the level of care and supervision, an individual such as Worboys will be subject to a multiagency public protection arrangement supervised by the National Probation Service. I am conscious of the recent criticism made of the probation service, but in the context in which it was mentioned it was not directed at the National Probation Service, which deals with the most serious offenders in the circumstances.

[Lord Morris of Aberavon (Lab)]

My Lords, does the Director of Public Prosecutions still have regular and frequent meetings with the Attorney-General about the non-prosecution or prosecution of particularly important individual cases?

[Lord Keen of Elie]

My understanding is that the Director of Public Prosecutions and the Attorney-General meet on a regular basis.

[Baroness Brinton (LD)]

My Lords, in 2016 the Public Accounts Committee reported:

“The criminal justice system is not good enough at supporting victims and witnesses”.


Your Lordships’ House voted on 12 December 2016 to strengthen the victims’ code, and we held off having another vote in January 2017 only after an undertaking from the Minister at the Dispatch Box that a strategy would be published in the next 12 months. To be told that the review will be undertaken “as soon as possible and possibly by Easter”, as the Minister said in reply to my noble friend just now, is still throwing it into the long grass. What guarantee can the Minister undertake to give the House that there will be such a strategy and that the victims’ code will be strengthened to ensure that mistakes such as this do not happen again?

[Lord Keen of Elie]

My Lords, the matter of a victims’ strategy is very much at the forefront of our minds. Indeed, I believe that my right honourable friend the Secretary of State observed in the other place that it is in his present inbox. He has only just come into office, but I understand that he intends to address that very strategy.

[Baroness Newlove (Con)]

This weekend has been quite emotional. I have done a lot of media, speaking for victims, and this case has raised a lot of issues from a lot of agencies that victims do not get support. First and foremost, they do not have any legal rights. However, I welcome the Government’s commitment to the review on the transparency of the Parole Board. I have had meetings with Nick Hardwick, and that is something that we have been discussing. I have asked for transparency, so that, as in appeal courts, we get a judgment set down that people can see. That is an area that we can look at and which I shall push forward with my team.

In addition, I ask my noble and learned friend to agree that the victims’ contact scheme must be radically reformed, not just with guidance and persuasion. That raises another important issue mentioned in the Secretary of State’s Statement, where he says that,

“the National Probation Service has no record of any requests for discretionary contact”.

That gives me a red alert. Victims are constantly let down by not getting the right communication, so it does not give me any comfort to say that nobody even thought of these individuals as human beings. I ask my noble and learned friend to look at the victims’ contact scheme in a radical way, because there are victims in whose cases there was no conviction.

Is this about changing the law to ensure that we can stand up on stilts, or will it be about treating people with human decency and dignity? At the end of the day, for someone such as me, who found out that the media knew about a judgment in my husband’s case before my family and I did, I can tell your Lordships that that that leaves scars for ever. I want to ensure that all the victims, in this case especially, get that discretionary informing of the full facts so that they can get on with their lives and feel safe and secure, because only that gives us public protection standing up in bold letters for everybody in our community.

[Lord Keen of Elie]

I note what the noble Baroness has said, and I quite understand the basis on which she expresses these views. As I have already said, there is a question about the discretionary contact where a case has not actually been prosecuted. Clearly, we must have that in mind when we take the question of the VCS forward. As I observed earlier, it would not be appropriate for me at this stage to set out the parameters of a review that is under contemplation at present.

[Lord Beith (LD)]

When cases show a pattern of serial and prolific offending, ought it not to be considered by the prosecution service that how many cases to prosecute should not be unduly restrained by either CPS resources or court resources, because of the effect that may have on the sentencing?

[Lord Keen of Elie]

I do not understand that they are ever determined by reference to court resources at all. The CPS has to make an independent judgment on these matters. It applies its evidential tests to the complaints that are brought before it by the police, to determine whether or not the prosecution should appropriately be taken forward. One has to acknowledge that there are cases when victims come forward, and yet, because of the particular circumstances, it is not possible for the CPS to determine that the evidential test has been met.

[Lord Blair of Boughton (CB)]

My Lords, I ask the Minister to take away from this short discussion the view of the House that the terms of reference for this inquiry need to be pretty wide. In 1985 I wrote a book called Investigating Rape: A New Approach for Police. Since then, more than 30 years have passed, and we have seen in these last few months really difficult rape cases failing in the courts. It seems to me that the Worboys case is a perfect example from which we could learn in a wider sense how to both support victims and provide the accused with a proper defence. At the moment, the investigation of rape and serious sexual offences is in a mess.

[Lord Keen of Elie]

I hear what the noble Lord is saying, but if we are to make progress—and swiftly, which is what we are required to do in these circumstances —we have to ensure that the review process is focused on the matters immediately at issue. To broaden it in the way suggested would, I fear, take us into the swamp lands and result in no meaningful change in the foreseeable future, particularly on the issue of transparency. While I understand and hear the desire for as wide a review as possible, let us bear in mind the need to ensure a review process that leads to legislative change within a realistic and—for victims—an acceptable timeframe.

[Lord Elystan-Morgan (CB)]

My Lords, can the Minister tell the House whether a full, preliminary review at the time Worboys pleaded was held by a learned judge? Normally such a mechanism enables many of the issues arising in this case to be ironed out at that stage.

[Lord Keen of Elie]

I am obliged to the noble Lord, but I am not sure that that could address the sorts of issues that have arisen here as a result of the present process. We are looking at the situation of Worboys 10 years after his initial incarceration and the circumstances in which he has sought to persuade the Parole Board that he can be released, without danger to the public and against the background of a risk management plan submitted to the Parole Board by the National Probation Service itself. I do not believe that that could be brought forward.

[Lord Cormack (Con)]

Would my noble and learned friend agree with me that this is a very welcome review, but the very serious implications of this particular case should not impede progress on looking at the whole problem of indeterminate sentences for crimes committed by people which were entirely different? That has often been raised in your Lordships’ House by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and many of us have given him strong support. Can my noble and learned friend give that reassurance?

--- Later in debate ---

[Lord Keen of Elie]

I welcome my noble friend’s observation and seek to give that reassurance. The wider question of IPP sentences and how they are dealt with has to be addressed in all its spheres, and it would not be appropriate to allow one most unfortunate case to distract us from wider questions with regard to IPP sentences and their final disposal.

[Lord Harris of Haringey (Lab)]

My Lords, that brings us back to the question that the noble Lord, Lord German, asked, to which the Minister was not able to give an answer because of time. Has there been any pressure on the Parole Board to deal more speedily with the backlog of IPP cases? I think that we need to know. I understood that the principle of IPP sentences was to protect the public. Clearly, the view of many victims is that in this instance the public are not being protected. We need to know—and I would be grateful for the Minister’s answer—what pressure has been applied on the Parole Board to deal with that backlog.

While I am on my feet, could we pick up the point that the noble Viscount, Lord Hailsham, raised, which was the very interesting question that in the past Ministers took personal responsibility for some of these difficult cases? Is not there a value in what I believe is by and large sound political judgment being made by people, perhaps with a background of elective politics, looking at these cases and assessing whether in the mind of the wider public this is something that should be looked at, and that it is perhaps not in the public interest for such people to be released?

[Lord Keen of Elie]

With respect, I can perhaps answer both questions by reference to the same issue. As far as I am aware, no pressure is being brought to bear on the Parole Board with respect to inappropriate release of IPP prisoners. The statutory test is perfectly clear, and the Parole Board is an independent body applying that statutory test, which should continue to be the position. It would not be appropriate that we should depart from the situation in which there is an independent Parole Board making these decisions objectively, to somehow bring it back into the fold of political decision-making where you may find pressure from the electorate, the media and elsewhere that impacts directly on someone’s right of liberty.

[Lord Foulkes of Cumnock (Lab)]

From the Minister’s extensive experience north of the border, is there anything that can be learned from the procedures in Scotland?

[Lord Keen of Elie]

I am obliged to the noble Lord, but I have to confess that I have virtually no experience of criminal law north of the border.

[Baroness Hussein-Ece (LD)]

My Lords, John Worboys carried out violent sexual crimes against very many women—we will probably never know how many—and it has called into question whether women victims of domestic violence are getting justice. It has caused great unrest, not least to the victims, but the wider public have raised great concerns about this. A panel of three has been convinced by John Worboys that he is safe to be released but, at the same time and in contrast to that, the Parole Board has said that his release conditions will be rigorously monitored and enforced. If they need to be rigorously enforced, and the Parole Board is worried about that, is he really safe to be released? This is a fundamental question—whether he is that safe to be released and to be a free man who has put his life of crime behind him, when the risk assessment is that he needs to be very closely monitored by the probation services and other multi-agencies. The public rightly need some reassurance that he is either safe to be released or is not.

[Lord Keen of Elie]

He has, of course, to satisfy the Parole Board that, from the perspective of public safety, he can be released. However, he is released under licence so that monitoring can be maintained. For example, an individual may have been prompted to carry out the most violent, vicious crimes when under the influence of drugs or alcohol. Therefore, the licensing conditions may ensure that they do not revert to a life of drug dependency or alcoholism. Where there are indications that they have done so, it may be necessary to revoke the licence as they then present a danger that they would not otherwise have been seen to present when they were first released. This is an issue of proportionality and balance. To impose an absolute upon an individual in these circumstances would, I fear, impose upon him a lifetime of incarceration, in which case we would lose that balance altogether.

[The Lord Bishop of Gloucester]

I thank the Minister for bringing this issue to the House and for the pertinent points made on this important subject. What action are the Government taking to ensure that the Parole Board is adequately funded so that due diligence can be performed before decisions are made?

[Lord Keen of Elie]

I do not understand that any concern was expressed by the chairman of the Parole Board about resources or the standard of review that the board carried out before making this decision. The issue is whether or not it can disclose the reasoning behind its decision. As the law stands, it cannot do that, so the issue is one of transparency more than anything else. I reassure the right reverend Prelate that that is the position as I understand it.

[Lord Pannick (CB)]

My Lords, are not the Government making a bit of a meal of this? Is it not clear beyond argument that the decision of the Parole Board to release Worboys cannot command the confidence of the public, and certainly not that of the victims, without the Parole Board being able to tell the public why it has taken that decision? Do we really need a review to establish that?

[Lord Keen of Elie]

With respect to the noble Lord, few issues are ever clear beyond argument, as he knows from his experience in the courts. In this instance, it is appropriate that we should review the matter before we take further steps.

HMP Liverpool

Lord Keen of Elie Excerpts

Thursday 21st December 2017 Lords Chamber

[Lord Beecham]

To ask Her Majesty's Government whether, and if so when, they will publish the recent report by the Chief Inspector of Prisons on Her Majesty’s Prison Liverpool; and what steps they are taking to address the problems identified in that report in order to prevent serious harm to prisoners.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the inspection report on Her Majesty’s Prison Liverpool will be published on 19 January 2018. A comprehensive action plan is being developed that will urgently address the inspector’s recommendations. Immediate action taken at Her Majesty’s Prison Liverpool since the inspection includes the appointment of a new governor, a review of prisoner accommodation to facilitate refurbishment and urgent work with the contractor to deal with the backlog of repairs.

[Lord Beecham (Lab)]

My Lords, the situation in Her Majesty’s Prison Liverpool is the latest manifestation of the crisis in our prisons. It is a shameful litany of squalor, sickness and apparently even death. Instead of initially refusing to comment on the chief inspector’s leaked report, the Government should already have published it, together with their response. Will they in particular examine the apparent failure of contractors over a long period to carry out major repair work in a way that did not threaten the well-being of inmates and staff? In addition, will they review the performance, in Liverpool and elsewhere, of an overstretched and underfunded NHS in protecting the health and well-being of our prison population?

[Lord Keen of Elie]

My Lords, very troubling matters were raised by the report, but I am not going to comment on the contents of a leaked report. What I can say is that the inspector debriefed the Prison Service immediately after and we have responded to that. Her Majesty’s Prison Liverpool was originally a Victorian prison, and there are indeed real issues with the standard of cell accommodation. It is worth noting that no expenditure—not one pound—has been spent on cell accommodation at Liverpool since 1994. In the intervening period, there was a Labour Government from 1997 to 2010.

[Lord Alton of Liverpool (CB)]

My Lords, is not one of the most disturbing aspects of this troubling report the failure to respond to the mental health needs of inmates? Given the reported suicides or deaths of perhaps as many as three prisoners in recent weeks, and the absence of secondary screening, is not this a national requirement? How do these squalid conditions, in a prison overrun with rats and cockroaches, meet Churchill’s famous dictum that the treatment of criminals is,

“one of the most unfailing tests of a civilisation of any country”?

How does it encourage fundamental reform of those we have incarcerated?

[Lord Keen of Elie]

My Lords, where the courts impose a custodial sentence, the punishment is deprivation of liberty. But where someone is kept in custody, the conditions should be decent, safe and secure. We accept that as a Government.

[Lord Marks of Henley-on-Thames (LD)]

The MoJ may say that it does not comment on leaked reports and the Minister has repeated that, but there is no doubting the authenticity or content of this one. The prison was the worst that inspectors have seen, with prisoners spending 22 hours a day in filthy, vermin-infested cells with exposed electrical wiring and blocked and leaking lavatories. Within weeks of inspection, two inmates killed themselves. Yes, the governor has been sacked, but that is not enough. Will the MoJ please now act urgently to establish a crisis task force to work with the inspectorate’s recommendations, there and elsewhere, to turn around the dreadful conditions in our failing prisons?

[Lord Keen of Elie]

My Lords, we have replaced not only the governor but the deputy governor and the head of healthcare at the prison itself. We intend to establish a new unit in the Prison Service to enhance our response to the inspector’s recommendations, which will involve monitoring and auditing progress on the recommendations. This will commence in January 2018. In addition, on 30 November we announced the introduction of an urgent notification process. Unfortunately, the report took place in September and therefore did not trigger that notification process. Under that process, the inspector can go directly to the Secretary of State for Justice in cases where urgent reform is required, and the Secretary of State will undertake to respond publicly within 28 days of such notification.

[Lord Harris of Haringey (Lab)]

My Lords, the noble and learned Lord practises insouciance in response to these questions, particularly in saying that he cannot comment on a leaked report. Perhaps he could comment on last month’s report of the Chief Inspector of Prisons, which highlighted conditions in youth offender institutions. It said that it was routine for young boys to be confined to their cells for more than 22 hours a day and that in 40% of the youth offender institutions inspected, education and medical visits had to be cancelled. That was certainly my experience a year or so earlier when I was reviewing the conditions in prisons. Is not the real problem the continued understaffing of our prisons and the failure, therefore, to provide the care that common humanity suggests is necessary for those in the care of the state as prisoners?

[Lord Keen of Elie]

We are all concerned to ensure that where persons are placed in custody, whether youth custody or otherwise, their conditions should be decent, safe and secure and that they should have the opportunity for rehabilitation. We have taken steps over the past year or so to increase quite considerably the number of prison officers employed in our prisons. The goal is 2,500 prison officers and we are on course to achieve it.

[Lord Ramsbotham (CB)]

My Lords, one of the most shocking sentences in the Chief Inspector’s introduction to this report, which is a shocking indictment of the way prisons are run, reads:

“We saw clear evidence that local prison managers had sought help from regional and national management to improve conditions they knew to be unacceptable long before our arrival, but had met with little response”.


Will the Minister please tell the House who in Prison Service headquarters is responsible and accountable for the oversight of Her Majesty’s Prison Liverpool and how that oversight is exercised?

[Lord Keen of Elie]

My Lords, I am not going to name individuals—

[A noble Lord]

Oh!

[Lord Keen of Elie]

I am sorry—I was concerned that the noble Lord had become unwell. I will not name individuals; it would be most invidious to do so. The Prison Service is responsible for the conditions at Her Majesty’s Prison Liverpool. I will not comment on the terms of a leaked report, but in response to the briefing, we have already taken 182 cell spaces out of use immediately to facilitate refurbishment. We have determined the level of remedial work required on accommodation and we have instituted an increased and improved cleaning programme, with robust management checks.