Prisons and Courts Bill
Public Bill Committee, 28 March 2017.
Examination of Witnesses
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
I take this opportunity to declare an interest as the chair of the cross-party justice unions and family courts parliamentary group.
Sam Gyimah (Conservative, East Surrey)
Good morning, and thank you all for coming. I would like to start with Joe, please, on staffing and recruitment. I would like to get your view of how the offender management model, which has been announced and will give each prison officer a workload of six, could help improve safety in prisons.Q
Sam Gyimah (Conservative, East Surrey)
Q I guess the question I was driving at is, if you were able to get to the situation where you had the 1:6, could you improve safety? You are saying that, yes, that could help improve safety.
In terms of the other point that you made about remuneration, of course I agree that remuneration is important in this context. Do you see that what the Ministry of Justice is doing about additional allowances—there are obviously ongoing negotiations with the POA on pay and so on—could also help with recruitment and retention?
Yasmin Qureshi (Labour, Bolton South East)
Thank you very much for coming to the session. Good morning. Can I ask you about what measures are not in the Bill? I want to explore that with you. In the nine months since this Bill was promised, we have seen major riots in prisons, an increase in violence and a continued fall in staff numbers. Do you think this Bill in any way addresses those issuesQ ?
Yasmin Qureshi (Labour, Bolton South East)
Q Does anybody else want to add any comments?
Yasmin Qureshi (Labour, Bolton South East)
Q Mr Lomas?
Sam Gyimah (Conservative, East Surrey)
Q If I may come in on the staffing point, are you aware that, for example, we have more people training to be prison officers than we have ever had before, at approximately 700, and that we are on track, at the end of March, to meet the commitment announced in October to recruit 400 new officers in the 10 most challenging jails?
Sam Gyimah (Conservative, East Surrey)
I have met a number of our new recruits at Newbold Revel. I think they are going into it with their eyes wide open and a lot of them are proud to be working in a uniformed service with the opportunity to turn lives around. In terms of retention, I think it is down to everyone in the Prison Service to make sure that new recruits settle in well—the governor, prison officers on the wing—so that they can actually contribute productively.
Yasmin Qureshi (Labour, Bolton South East)
Q Ms O’Brien, you have said that to have proper rehabilitation we need to return frontline staffing to 2010 levels.
Michael Tomlinson (Conservative, Mid Dorset and North Poole)
I do not think I have anything to declare, but for the avoidance of doubt I am a former practising barrister—non-practising at the moment. Joe Simpson, what are your views on the further professionalisation of the Prison Service in general, and then, specifically, what are your views on the new graduate scheme, the Unlocked scheme, that I think is starting this SeptemberQ ?
Michael Tomlinson (Conservative, Mid Dorset and North Poole)
Q Thank you. I recently had the privilege of visiting HMP Wandsworth. They explained the extension of the training that was going on there. Presumably, again that is something you would welcome. I am assuming that you would welcome the extended training period for new recruits as well, given what you have said.
Michael Tomlinson (Conservative, Mid Dorset and North Poole)
Q That brings me to my final question; you have neatly brought me round to rehabilitation. You mentioned marriage guidance counselling and so on. What further role do you think there could be for prison officers not only in relation to rehabilitation in general, but in relation to such things as education?
Sam Gyimah (Conservative, East Surrey)
Q Mr Simpson, I would like you to comment on professionalisation. We are consulting with the trade unions on the creation of 2,000 new senior positions across the estate, where they will be able to work at band 4 level in such jobs as self-harm prevention or mentoring, earning up to £30,000 a year. How could that help retain senior staff and professionalise the workforce?
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
Q I think I am correct in saying that the level of turnover among prison officers is something like 12%.
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
Could you tell us something about the impact of that degree of change? The underlying impact is that their salary is for ever starting at the lower level. Also, there is now regional variation in salaries. What is the impact of that—I have visited HMP Berwyn and I will be going to HMP Liverpool next week—on recruiting outside of south-east England?
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
Q Is the training perhaps not preparing new recruits? Would it be possible to adapt the training to prepare new recruits better for the reality of prison work?
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
Q May I ask one general question to everyone on the panel who might be able to respond? The Bill is proposing the purpose of prisons. What would you feel about including health, substance abuse and addictions while people are in prisons as a possible fundamental purpose?
Matt Warman (Conservative, Boston and Skegness)
This question is probably as much for Martin Lomas orQ Rachel O’Brien as it is for the rest of the panel. The Bill enshrines the idea of rehabilitation and reform for the first time. In my constituency there is a category D prison, North Sea Camp, and I have seen how difficult that can be. Do you think that that is a symbolically important gesture, but also that it will make a practical difference across the prison estate? Is it something that you welcome as a whole?
Matt Warman (Conservative, Boston and Skegness)
Q Related to that, am I right in thinking that greater autonomy for governors should allow some of that to happen locally, as is best, rather than having a one-size-fits-all model?
Matt Warman (Conservative, Boston and Skegness)
Q ROTL is routine at somewhere like North Sea Camp—that demonstrates the variation across the estate currently.
Richard Burgon (Labour, Leeds East)
I want to return to the subject of staffing. The Minister mentioned the 6:1 ratio in terms of staff caseloads; I want to raise a different ratio. We have already heard about the 7,000 reduction in prison officers since 2010. We have also heard about the aim to have a 2,500 increase. On Second Reading, there was some discussion in the Chamber of the need for prison staff to prisoner ratios. In their experience, do panel members think this could be helpful—a ratio of prison officers to inmates?Q
Richard Burgon (Labour, Leeds East)
Q Would you think—to add a second question, if that is okay—that presumably there could be different ratios for different categories of prison, as a minimum ratio? Presumably, whatever the variables, there must be, in each category of prison, a minimum below which it would be dangerous to go, which would be contrary to the possibility of fulfilling the purpose of prisons as set out in clause 1.
Nick Thomas-Symonds (Labour, Torfaen)
To refer to my relevant entry in the Register of Members’ Financial Interests, for the purposes of the Committee I should say that I am a non-practising barrister and door tenant at Civitas Law in Cardiff.Q
On the issue of deaths in custody, you will be aware of the inquest findings in January on the death of Dean Saunders in Chelmsford prison, in which a number of criticisms were made of mental health care, and the prison system generally. Are you satisfied that the Bill will address those failings?
Nick Thomas-Symonds (Labour, Torfaen)
Q If you as ombudsman make recommendations, how confident are you that the Secretary of State will act on them?
Oliver Heald (Conservative, North East Hertfordshire)
Q I want to ask you about mobile phones and drugs. Obviously, prison has never been a pleasant place, and I visited many prisons when I was practising as a barrister, but recently I visited a prison and talked to one of the trusted prisoners who said that the impact of psychoactive substances has been marked, particularly on younger men prisoners, with there being a lot more violence than there used to be. Mobile phones are also enabling prisoners to commit crimes at one remove that they did not use to be able to do. Will you each say a word about drugs and mobile phones—what their impact has been and whether the measures in the Bill are a help?
Oliver Heald (Conservative, North East Hertfordshire)
Q If you take the aims in the Bill of active reform and rehabilitation, and trying to prepare people for the world outside, are you saying that if you achieved that sort of purposeful regime, you would have a more peaceful regime?
Oliver Heald (Conservative, North East Hertfordshire)
Q I do not know whether you would agree, Mr Simpson, but I think a lot of prison officers find it very rewarding if they are able to help a prisoner to come round and live a better life after he leaves prison, and to help him get some skills while he is in there. I have certainly always found that when talking to prison officers. Do you agree that the overall idea of having proper purposes for prison, trying to increase the number of officers and tackling this scourge of drugs and mobile phones is the overall package that is needed?
Oliver Heald (Conservative, North East Hertfordshire)
Q No, it is these psychoactive substances, which are allegedly legal.
Oliver Heald (Conservative, North East Hertfordshire)
Q Of course, a lot of these prisoners could benefit from that experience, could they not? They are not very well educated, and they could get some skills and make more of their lives.
Matt Warman (Conservative, Boston and Skegness)
Q You briefly mentioned mobile phone blockers; the Bill allows for more rapid blocking of individual mobile phones that are associated with prisoners. Presumably, you would welcome the fact that you would not have a blanket ban on everything, or use more widespread blocking, because prison officers have mobile phones, which are useful for keeping in contact with families and all that while in the prison. Of course, people who live nearby prisons do not appreciate their systems being blocked, either. This helps with that, I would hope.
Matt Warman (Conservative, Boston and Skegness)
Q Not on the block, but in the broader area it is still a pain to have anything blocked, is it not?
Matt Warman (Conservative, Boston and Skegness)
So the more targeted the technology—that is what the Bill more quickly allows for—the better, ultimately?
Yasmin Qureshi (Labour, Bolton South East)
Q Whether we are talking about mobile phones, psychoactive drugs, mental health or education, the truth is that you do not have sufficient trained people in the Prison Service, or in the round, to deal with these problems. Unless and until those properly qualified and trained people are there, none of these problems will go away. It does not matter how much legislation we have about phones or drugs or whatever; unless there are people there to deal with it, nothing is really going to shift, is it?
Yasmin Qureshi (Labour, Bolton South East)
Q I was not saying that there is not an answer to the problem. I was saying that, yes, some good things are happening—I am not saying nothing good is happening—but to achieve a level of productivity, if I may use that expression, you will need back-up resources. That is what I am talking about, in essence. That needs to be addressed fully.
Chris Philp (Conservative, Croydon South)
Mr Lomas, you said a moment ago that you thought that there were some failures of leadership in this area. Will you expand a bit on what you mean by thatQ ?
Chris Philp (Conservative, Croydon South)
Q In your experience of inspecting prisons, how frequently are there comprehensive searches both of prisoners and their cells, with the purpose of identifying things like mobile phones and drugs?
Chris Philp (Conservative, Croydon South)
Q In your experience of inspecting prisons, do you think that search, whether of individual prisoners or of their cell accommodation, is adequately frequent, bearing in mind the amount of contraband that seems to be in circulation?
Chris Philp (Conservative, Croydon South)
Mr Simpson, what is your view of the search regime?
Nick Thomas-Symonds (Labour, Torfaen)
Q Rachel, a moment or two ago, you were taking about what the prisoners themselves have to offer in this. I know that the RSA has spoken about things such as rehabilitation culture—I think “rehabilitation capital” is the phrase that is used by the prisons. Can I pick up on that and, in a general sense, ask you whether you think the Bill incorporates that sort of culture and those sorts of measures in the way you would like to see?
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
Nigel Newcomen, you mentioned the dichotomy between supply reduction and demand reduction. There are aspects of this Bill that deal with supply reduction per se. To what degree do you and other members of the panel feel that the demand reduction aspect is sufficiently considered within the BillQ ?
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
Q Would you be prepared to suggest additions to the Bill that might make it less implicit and more explicit?
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
Mr Simpson, what do you think?
Suella Fernandes (Conservative, Fareham)
I refer the Committee to my entry in the Register of Members’ Financial Interests. I am still in receipt of fees from the Treasury Solicitor for providing legal services to the Ministry of Justice and the Parole Board.Q
Nigel, I want to follow up on your point about the statutory purposes listed in proposed new section A1. There are four purposes set out and you said that an endless list would be unhelpful for professionals and for the inspectorate. Can you say a bit more about why you think that the current drafting hits the nail on the head and strikes the right balance?
Suella Fernandes (Conservative, Fareham)
Q My second point I would like to raise with all members of the panel relates to health and mental health provision in the Bill and also in the White Paper. In those, there is considerable detail on how governors can work together with the local clinical commissioning group or other health providers to assess the health needs of prisoners, co-commission services and assess quality of performance, instilling a bit more responsibility and flexibility in the system to safeguard health and mental health concerns. I would like the panel’s views on the mental health and health provisions.
Holly Lynch (Labour, Halifax)
MayQ I return to the issue of prison officer safety? I have tabled some new clauses that I hope will be helpful in that regard. On Second Reading, we touched on the issue of a prison officer being assaulted in prison by a prisoner. Is that referred to the police, followed up by the Crown Prosecution Service and taken to court, or is it dealt with internally within the prison? What is your experience of the decision making around that process, and what would be the preference of the Prison Officers Association for dealing with those types of incidents?
Holly Lynch (Labour, Halifax)
Q Mr Lomas, when you do inspections of prisons, is how assaults on prison officers are investigated something that you would look at?
Holly Lynch (Labour, Halifax)
Q Can I press you on that point? Do you think this is something that you should be looking at in that case? It sounds as if you are collecting the statistical data about frequency, but not doing the follow-up about how violence is investigated to see whether there is evidence about how deterrents should be in place, for example.
Sam Gyimah (Conservative, East Surrey)
Q I would like to ask a question and get the panel’s views about accountability in the new prison system and how that works. Starting with Mr Lomas, what difference do you think the Bill will make to the effectiveness of the prisons inspectorate? Could you also comment particularly on how you see the notification trigger being used?
Richard Burgon (Labour, Leeds East)
Q I have two questions. First, following on from what Joe has just said, should the inspector review the resourcing and availability of staffing in prison, and should this Bill legislate to enable that?
Richard Burgon (Labour, Leeds East)
Q When you mention staff, Joe, is there a level of staffing beneath which you believe it is dangerous to go?
Sam Gyimah (Conservative, East Surrey)
Q The role of the Secretary of State in the Bill is to be responsible for the whole system and accountable to Parliament. Just to make it clear, are you arguing that somehow the Secretary of State should not be in this loop at all, and that it should all be about the governor? In which case, how is the Secretary of State responsible for the system?
Sam Gyimah (Conservative, East Surrey)
Q There is a line management structure that goes from the Secretary of State through HMPPS and the governor. If a prison is failing—for want of a better word—it makes sense to have the person who is accountable for the system, and the line managers of the prison, be aware of it and take action with the governor.
Richard Burgon (Labour, Leeds East)
Q The prisons and probation ombudsman touched on this earlier, and I just want to give everyone on the panel the opportunity to respond. The Howard League, the Prison Reform Trust and the Prison Officers Association have all highlighted the need for the purpose of prisons to commit to decent and fair conditions. The wording comes from Lord Woolf, who set it out in 1991. Would the panel members prefer the Bill to clarify that with reference to “decent” and “fair”, as set out by Lord Woolf in 1991?
Sam Gyimah (Conservative, East Surrey)
Q On deaths in custody, I would like to hear Nigel Newcomen’s thoughts on how putting the PPO on a statutory footing is beneficial and what difference it could make to your investigations.
Nick Smith (Labour, Blaenau Gwent)
I want to touch on the point about the education and health needs of offenders. I will refer to the written evidence submitted by the Royal College of Speech and Language Therapists today that there is a high prevalence of speech, language and communication needs in the criminal justice system. It says thatQ
“over 60% of young offenders have speech, language and communication needs”—
and that this affects offenders’ ability to engage with
“verbally mediated physical and mental health assessments effectively including suicide risk screening”
and their health and rehabilitation programmes. Will the Bill help to address these issues, particularly in commissioning health and education professionals to support offenders with these needs?
Yasmin Qureshi (Labour, Bolton South East)
Q I have two little questions.
Yasmin Qureshi (Labour, Bolton South East)
Mr Lomas, in response to a question about the educational aspect of things you said, “Look at the intention of the Bill and the purpose of prisons.” Bearing in mind we have been hearing about issues of self-harm and about suicide rates increasing, what about enshrining prisoners’ mental and physical health in the statute book, in clause 1, giving it parity with the four other things?
Guy Opperman (Conservative, Hexham)
I declare an interest as a non-practising former barrister. I am still owed certain fees by the state and insurers even after seven long years, and I wrote a book called “Doing Time”, which unaccountably has not sold out, on prison reform—so I declare its existence.
Richard Burgon (Labour, Leeds East)
I am a former practising solicitor—I am non-practising now. I used to be an employee of Thompsons solicitors who have an interest in matters discussed this afternoon.
Yasmin Qureshi (Labour, Bolton South East)
I was also a practising barrister. I stopped practising in 2010 but I have recently become a door tenant and I can now practise and may choose to practise.
Nick Smith (Labour, Blaenau Gwent)
I am pretty sure it is not declarable, but I used to work for the Royal College of Speech and Language Therapists.
Nick Thomas-Symonds (Labour, Torfaen)
To add to the point made by the Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Hexham, I am still owed thousands of pounds in fees, some of which I think may be from insurers.
Oliver Heald (Conservative, North East Hertfordshire)
I am a barrister, not currently practising, and I am the legal aid Minister, so I apologise, boys.
Robert Jenrick (Conservative, Newark)
May I also declare an interest? I am a solicitor, not currently practising, and a prison visitor at HMP Lowdham Grange in my constituency.
Craig Tracey (Conservative, North Warwickshire)
I chair the all-party group on insurance and financial services and was an insurance broker for 25 years.
Oliver Heald (Conservative, North East Hertfordshire)
Q51 It is a joy to serve under your chairmanship again, Mr Brady. I thought I would start with some questions to Professor Susskind about the online procedure for civil and family courts and tribunals, which is dealt with in clauses 37 to 45. Then, after colleagues have put their questions, I will perhaps deal with cross-examination in family matters—clause 47—and criminal proceedings, which are dealt with in clauses 23 to 30 and 35 to 36.
Professor Susskind, I believe you have been the technology adviser to the Lord Chief Justice for many years and you are an advocate for the law adapting to modern technology. These proposals involve the use of digital processes, simpler rules and an online procedure rule committee to set them up. I wonder what your views are about whether the quality of this work will be as good as it is now—that it will not be not a second- class system—and what you think are the implications for the legal professions.
Oliver Heald (Conservative, North East Hertfordshire)
Q Do any of the other witnesses want to comment on the online court for civil cases, family courts and tribunals and whether it improves access to justice—the point that Professor Susskind just made?
Oliver Heald (Conservative, North East Hertfordshire)
Q Lord Justice Briggs said that it might be a role where a particular piece of legal advice would be given and then fixed recoverable costs would be involved, as a way of ensuring it could be funded. Do you have any views on that?
Oliver Heald (Conservative, North East Hertfordshire)
Q Perhaps I can ask one more question, before opening this up. Would you like to say a word about the benefits of virtual hearings and dispute resolution within this process?
Nick Thomas-Symonds (Labour, Torfaen)
I want to talk about virtual and online courts—I am with Professor Susskind in recognising that they are very different animals—in the criminal context. I will start Q with Penelope from Transform Justice. In your recent report you looked at an evaluation of the use of technology in the criminal courts back in 2010. The report said:
“The evaluation of the pilot was published in 2010, and concluded that virtual courts as piloted were more expensive, may lead to more guilty pleas and longer sentences, and impeded the communication between lawyer and client.”
As we embrace new technology, how can we seek to deal with those worries?
Nick Thomas-Symonds (Labour, Torfaen)
Q This is a follow-up, first for Richard and then for Professor Susskind. Should youth defendants be excluded from the Bill’s provisions on virtual courts?
Nick Thomas-Symonds (Labour, Torfaen)
Q I will just move to the online criminal convictions—this is clauses 35 and 36 of the Bill. This is a general question to the panel. Do you think there are sufficient safeguards in the Bill for defendants who use the automatic online conviction process? For example, how could you make an offender aware of the consequences to their employment status of having a criminal conviction? What are the safeguards to enable them to fully understand the consequences of that guilty plea?
Oliver Heald (Conservative, North East Hertfordshire)
Q Penelope, you mentioned the 2010 pilot, which was between a police station and the magistrates court and which did reveal some interesting lessons, such as how to schedule cases—that needed to be done better—the elements of a case that are best dealt with by videolink, and the importance of technical quality and reliability. I am sure you would agree that, since then, videolinks have been used successfully in the Crown court, magistrates court hearings and in many other ways, and that the lessons have been learned. Now videolinks are better scheduled, they are used in a more targeted way, and the technology has improved.
There are a lot of benefits to a videolink: for vulnerable witnesses it is often used as a special measure, it stops people having to travel long distances, it stops the wasting of police time, and the professionals find it increasingly helpful to be able speak to their clients at distance. Then there is the security side of it, which means you do not have a lot of people having to use prison transport. Do you accept that things have moved on since 2010?
Oliver Heald (Conservative, North East Hertfordshire)
Q Before you go on, on that point, in the Rolf Harris trial that recently concluded, the video evidence was given from Australia. That meant the victims did not have to travel thousands of miles. Surely that is a benefit?
Oliver Heald (Conservative, North East Hertfordshire)
Q Rolf Harris watched it from prison.
Oliver Heald (Conservative, North East Hertfordshire)
Q Do you not accept you are going back to the very early history of this and that since a whole range of videolinks have been set up in prisons and in other places right across the country, as well as in police stations? The whole thing has moved on in leaps and bounds over the last seven years.
Oliver Heald (Conservative, North East Hertfordshire)
Q It has been made clear that there will be safeguards for the online procedure. Although I accept they have to be done well, it is a procedure that should be tried, given how simple it is for everybody concerned. Are you against even trying it?
Nick Thomas-Symonds (Labour, Torfaen)
Q Jenny, one of the critical things in the virtual court environment is that people and defendants understand what is going on within that environment despite being on videolink. This is why I raised a concern earlier about young defendants. How do you feel the cuts to legal aid and the proliferation of litigants in person will affect the way people are able to understand what is going on when there is no lawyer present either?
Nick Thomas-Symonds (Labour, Torfaen)
Q I have just one brief follow-up question for Professor Susskind—I am grateful for your patience, Mr Brady. How do you think the whole online courts idea affects the principle of open justice?
Nick Thomas-Symonds (Labour, Torfaen)
I am asking about online courts.
Michael Tomlinson (Conservative, Mid Dorset and North Poole)
I will pick up on a couple of points that have been raised. Professor Susskind, you talked about technology improving. Just to give you an idea, I can remember using this technology myself in court as a practising barrister—I am now a non-practising barrister—both before 2010 and after. Since then, technology has been improving on a daily basis. I was particularly pleased to hear that the west of the country seems to be doing well in using technology.Q
My specific question is directed towards Richard Miller, and Penelope Gibbs as well. Richard, you were talking about concerns about defendants giving evidence virtually. Do you accept the benefits of, for example, vulnerable witnesses giving evidence virtually? For those who would be nervous or anxious about attending court, all those anxieties can be put to rest and they can give evidence from a safe distance.
Michael Tomlinson (Conservative, Mid Dorset and North Poole)
Q If it were possible to overcome that, for example by having proper briefings with lawyers in advance and debriefings after the hearings, that would allay some of your concerns. Would that be fair?
Matt Warman (Conservative, Boston and Skegness)
IQ used to write about technology and in 2010 I covered the launch of FaceTime. I wonder whether the panel collectively agree that commercial products such as that have fundamentally changed the way that almost the entire public engage with this kind of video communication? Sitting here trying to put my old journalistic hat on, we are talking about technology based on a report from 2010, but it seems fundamentally a different world. I suspect that Richard Susskind might agree, but I wonder whether Penelope Gibbs or Richard Miller could try to convince me that the technology of 2010 is even relevant in 2017?
Matt Warman (Conservative, Boston and Skegness)
Q So it is not so much the principle as the technology? You were talking earlier, Penelope Gibbs, about the angle of the camera and how well people could be understood. Obviously, we would all want people to be understood and adequately photographed, but that is a very trivial thing in comparison to the principle of using digital technology, is it not?
Matt Warman (Conservative, Boston and Skegness)
Q Just to challenge you on that: they have to talk to their lawyer in a different way. This is different, is it not?
Matt Warman (Conservative, Boston and Skegness)
Q Is not the other side of this, though, that for a lot of people the very process of travelling long distances to court, in many cases—I think of my own constituents—is what makes the system intimidating and unapproachable? It is part of the problem and to some extent, particularly for the vulnerable witness we talked about before, this can diminish those issues. I suppose what I am driving at is that you are making it sound like this is all bad, whereas actually you are even conceding yourself that some of it is good. Perhaps we should be a bit more nuanced.
Matt Warman (Conservative, Boston and Skegness)
Q Richard Susskind, as the other side of this argument, if you like, how would you characterise the evidence for this working better?
Matt Warman (Conservative, Boston and Skegness)
Q But these are the greatest challenges for digital inclusion full stop, are they not? This is not a unique problem for justice.
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
What is very interesting about this discussion is that we seem to have become very polarised in favour and against. It strikes me that perhaps we need to take a step back and look at the other considerations that need to be brought in to make this effective and not a risk in terms of justice outcomes.Q
If I may, I will make this slight comparison. I used to be responsible for teaching through video non-traditional A-level subjects—through the medium of Welsh, as it happens—to widen their accessibility, to 15 secondary schools in Wales. Of course, we constantly had the check of the results and seeing how the students who were being taught by video performed in comparison with the conventional teaching method. There is great potential in technology, as is being discussed, but I think there are issues in relation to the vulnerable and there are age—generational—issues as well, without beginning to touch on the nature of technology in some of our rural areas.
What worries me, and what I would like your opinion on, is how we bring this in and have the checks and balances to assess the research—whether there are different outcomes to justice in terms of this—and that this is not a headlong rush into technology in which some participants will actually suffer or there will be unjust results because of it. This cannot be polarised; it has to be something that we discuss as we go along.
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
Q Forgive me, but what would the checks be as we change from one very well established and familiar system to a new system? What will be the checks from day to day that they are operating properly?
Liz Saville-Roberts (Plaid Cymru, Dwyfor Meirionnydd)
Q Could you recommend what form that should take?
Oliver Heald (Conservative, North East Hertfordshire)
Q I was hoping we might move on to clause 47—the cross-examination in family justice. I was hoping to ask Polly from Women’s Aid, who is sat very patiently, one or two questions about this. Polly, could you give us a sense of the harm caused by victims being cross-examined in person by alleged abusers in the family courts?
Oliver Heald (Conservative, North East Hertfordshire)
Q We have been very grateful to work with Women’s Aid on this issue and for the help that you have been giving in trying to help with the training of those in the family justice system. Do you think the provisions in the Bill will help, and do you have any more that you feel needs to be done in terms of guidance and the judiciary?
Oliver Heald (Conservative, North East Hertfordshire)
Q Jenny, I know that the Legal Aid Practitioners Group has been very involved with this issue, as well.
Oliver Heald (Conservative, North East Hertfordshire)
Q I do not know whether you would like to say something about all of those issues.
Oliver Heald (Conservative, North East Hertfordshire)
Q As you probably know, on the evidence requirements, we have made partial announcements and we are reviewing it with the aim of making a fuller announcement fairly soon.
Oliver Heald (Conservative, North East Hertfordshire)
Q Richard Miller, do you want to come in?
Nick Thomas-Symonds (Labour, Torfaen)
Q Clause 47 is very welcome. These protections have existed in the criminal courts for some time and to have them now in the family courts is absolutely right. Starting with Polly, what is your view on extending that principle to the civil courts more generally, even beyond simply the family court?
Nick Thomas-Symonds (Labour, Torfaen)
Q Jenny, I see you nodding. Do you share that view?
Nick Thomas-Symonds (Labour, Torfaen)
Q The point presumably is that the court should never become an instrument for the extension of coercive behaviour.
Nick Thomas-Symonds (Labour, Torfaen)
Q Richard, can I come to you on the issue of funding? Clearly, there will be a court-appointed advocate who needs to be funded, but one curiosity is that the funding of the court-appointed advocate is left to regulation; it is not in the Bill. Do you think that it would be helpful if it were in the Bill, given how crucial funding is?
Richard Burgon (Labour, Leeds East)
I have a question for the representative of Women’s Aid, then two questions on employment tribunalsQ . Polly, are you in a position to comment on the effect of the nature of the MOJ estate on the elongation of abuse or coercive behaviour? It seems to me that there may be an issue with the layout of family court buildings and other things. Regardless of the welcome change set out in clause 47, which you also welcomed, is there anything that you would like to add about issues such as waiting rooms and so on?
Richard Burgon (Labour, Leeds East)
Q On employment tribunals, I would be interested to hear what Richard Miller from the Law Society has to say. Our position on employment tribunal fees is well known. We would abolish the fees that were brought in in 2013 because we believe, among other things, that they have a really negative affect on access to justice, with a 70% reduction in cases being brought. Richard, are you in a position to give your view on the effect of the introduction of employment tribunal fees on access to justice in the employment courts?
Richard Burgon (Labour, Leeds East)
Q That is very useful. My final question is to Richard Miller, and to Penelope in particular, if she has any thoughts on this. Clause 52 of the Bill talks about the composition of tribunals. As a former tribunal lawyer, I very much did not welcome—and Labour Members do not welcome—the reduction in the use of tribunals and the increase in instances of judges sitting alone. We do not make that point out of any partisan pro-employee or anti-employer position—we are, of course, not anti-employer. It is very useful to have an employer representative and an employee representative there to provide real-world experience to assist the judge. Clause 52 commits the senior president, or the president, of tribunals to extend even further the type of cases in which employment judges would be sitting alone, further undermining the tripartite nature of the tribunal. Do you think that the Committee should amend that?
Nick Thomas-Symonds (Labour, Torfaen)
Q Penelope, you mentioned that you sat as a lay magistrate. There is a provision in the Bill that abolishes local justice areas, which means a magistrate will not be allocated now to a particular area. Can you comment on the morale of lay magistrates at the moment and how you think it will be affected by the abolition of local justice areas?
Oliver Heald (Conservative, North East Hertfordshire)
Q Let us start with you, Mr Townend. In recent years, since 2005, we have seen a fall in the number of road accidents, we have seen safer vehicles and we have seen a more than 50% increase in whiplash-related claims. Can you put this in perspective and tell us what you think the problem is and whether you think our tariff system is going any way to solving it?
Oliver Heald (Conservative, North East Hertfordshire)
Q On what you think the problem is, you said “easy access to cash”. Would you like to explain the whole thing a bit more fully?
Oliver Heald (Conservative, North East Hertfordshire)
Q What do you put it down to? What is actually going on?
Oliver Heald (Conservative, North East Hertfordshire)
Q What about you, Mr Dalton? Do you agree? Do you think the tariff system will help?
Oliver Heald (Conservative, North East Hertfordshire)
Q Say that Mr Dixon says in a moment, “No, these are all genuine claims, and anyway they haven’t gone up; they’ve gone down.” That is something I have heard said. What would you say about that?
Oliver Heald (Conservative, North East Hertfordshire)
Q The circumstances are the same, are they not? A shunt up the back, and then it is described as a back injury rather than a whiplash injury.
Oliver Heald (Conservative, North East Hertfordshire)
Q Well, Mr Dixon, are you going to tell us what I predicted, or do you disagree?
Oliver Heald (Conservative, North East Hertfordshire)
Q Can you explain what it is, in case anybody here does not know? It is the DWP, isn’t it?
Oliver Heald (Conservative, North East Hertfordshire)
Q So, Mr Townend, you are exaggerating the figures and these are genuine claims.
Oliver Heald (Conservative, North East Hertfordshire)
Q If there are some savings here, is it right that Aviva has said that they will pass them on to the customer?
Richard Burgon (Labour, Leeds East)
Q Can I just start by clarifying with the Aviva representative that Aviva has chosen to pass that saving on? That is not compulsory; it is your organisation’s choice to do that.
Richard Burgon (Labour, Leeds East)
Q To the best of your knowledge—obviously, you will know all about your competitors—is Aviva in a minority in taking this position to pass on the saving?
Richard Burgon (Labour, Leeds East)
Q So there is no figure at moment about how many of the 97 competitors have adopted Aviva’s approach? We do not know whether it is a minority or a majority of them?
Richard Burgon (Labour, Leeds East)
Q Finally, I would like to ask each of the panel members, starting with Brett, why, in your opinion, the Government do not seek to better regulate claims management companies, which unlike solicitors are free to cold call potential customers?
Craig Tracey (Conservative, North Warwickshire)
I shall start with you, Mr DaltonQ . Obviously, the Government are keen to get a definition of whiplash in the Bill, and I think it will be key to this being successful that we get that definition right. Does the current framework definition hit all the right spots, or should we be looking at something else?
Craig Tracey (Conservative, North Warwickshire)
Q What about the MedCo definition?
Craig Tracey (Conservative, North Warwickshire)
Q What are the consequences to insurers if you get the definition wrong, in terms of additional cost? Has there been any analysis of how much more that will cost insurers?
Craig Tracey (Conservative, North Warwickshire)
Any other thoughts?
Craig Tracey (Conservative, North Warwickshire)
Q That brings me to the cost. We have already said that Aviva has said that it will pass on the cost, as have other insurers. It was based on a £40 figure, wilfully, at the time, but I think that figure was based on the complete removal of soft tissue injuries. Has there been a re-evaluation of likely cost? What is the impact on other things such as insurance premium tax rises and discount rate changes, which we will obviously see? You can pass on a saving but that does not necessarily mean a lower cost.
Craig Tracey (Conservative, North Warwickshire)
It was around other impacts such as IPT rises.
Nick Thomas-Symonds (Labour, Torfaen)
I have two points, Mr Brady, and the first is to Brett Dixon. The small claims track limit of £1,000 has been there since 1999. If you increased it by the same rate as the consumer prices index, you would end up with just under £1,500. If you increased it by the same rate as the retail prices index, you would end up with just under £1,600. Do you think there is any justification for going to £2,000 in most cases and £5,000 in whiplash casesQ ?
Nick Thomas-Symonds (Labour, Torfaen)
Q Perhaps Mr Dalton could answer another question. You are talking about a claims culture and all the rest of it. When we are talking about fraudulent claims, if there is sufficient evidence to plead fraud—and I appreciate there has to be a bar to plead fraud—the defendant lawyers, whoever they are, will plead the fraud and it is either proved before the court or it is not. I can remember my own involvement with these cases. You will have a number of cases where fraud has been definitively proven. Beyond that, any statistics are just based on suspicion, aren’t they?
Nick Thomas-Symonds (Labour, Torfaen)
Q In how many of the 70,000 cases where you say fraud was detected were the frauds actually proven before the courts?
Nick Thomas-Symonds (Labour, Torfaen)
Q But you just made a statement about 70,000 cases of detected fraud and you cannot even tell me how many of those are actually proven before the courts?
Suella Fernandes (Conservative, Fareham)
I have defended parties in low-velocity impact claims, and the guidance is generally set out when an allegation of fraud is going to form part of a defence; it is set out in the Court of Appeal guidance for Casey Q v. Cartwright. What do you think is the problem with that guidance and how will these proposals assist? It imposes a burden on the defendant to notify that fraud will be part of the defence and, importantly, in many cases it will allow them to adduce medical evidence on the issue of causation.
Suella Fernandes (Conservative, Fareham)
Q Does Mr Dixon wish to comment?
Chris Philp (Conservative, Croydon South)
Welcome to our panellists this afternoon. About three years ago, my wife and I were involved in a relatively minor road traffic accident. For the year that followed that, I was phoned up on my mobile almost every week by people talking about the accident and trying to make me submit a claim for a neck injury. No matter how many times I told them that neither I nor my family had suffered any injury, they persisted in trying to incite me to commit fraud. Mr Townend, why were they doing thatQ ?
Chris Philp (Conservative, Croydon South)
Q Am I right in saying that panel members are unanimous in their view that cold calls by CMCs should be banned?
Chris Philp (Conservative, Croydon South)
Q The panel is unanimous on that point.
You mentioned referral fees, Mr Townend. As you say, they were banned a few years ago. My understanding is that some organisations, including insurance companies, seek to circumvent the referral fee ban by entering into what they euphemistically term “alternative business structures”, where they essentially have some kind of equity stake in a claims management company and, effectively, get paid via their equity stake or similar arrangement, rather than an explicit referral fee. Is it the opinion of the panel that this practice, designed to circumvent the will of Parliament, is going on?
Chris Philp (Conservative, Croydon South)
Q Mr Dixon, do you want to add at all to that before I move on?
Chris Philp (Conservative, Croydon South)
Q Your mention of the one-way bet brings me to my next area of questioning. Take the example I experienced: had the recipient of that cold call been someone who was more open to temptation than I am and gone along with what the claims management company was suggesting, how would the claims management company have ended up making money out of an essentially bogus claim? They must be able to make money out of it, otherwise it would not be worth them soliciting the public.
Chris Philp (Conservative, Croydon South)
Q Am I right in saying that under qualified one-way costs shifting, were an insurance company to take the choice to defend a claim, even if it were successful in defending that claim—if the claim was found to be without foundation—the insurance company would none the less bear both sides’ costs? Would it not further be the case that those costs would be substantially—probably by a factor of two or three—in excess of the value of the claim, and that is why for the past five, 10 or 15 years, insurance companies have simply coughed up without challenging the case? Perhaps Mr Townend might comment on that.
Chris Philp (Conservative, Croydon South)
Q When you defend a claim and win, do you lose money?
Chris Philp (Conservative, Croydon South)
Q Presumably one of those two makes an onward payment to the claims management company?
Chris Philp (Conservative, Croydon South)
Q Mr Dixon, you practise in the area. How does the money get to the CMC—by magic?
Chris Philp (Conservative, Croydon South)
Q Before you do, you also represent the trade body representing personal injury lawyers, so you can answer in general terms. How does the money get from the claimant’s lawyers or the claimant to the CMC?
Chris Philp (Conservative, Croydon South)
Q I did not ask what you recommend, which I am sure is very virtuous; I asked what actually happens in practice.
Chris Philp (Conservative, Croydon South)
Q They clearly do, otherwise CMCs would not exist.
Chris Philp (Conservative, Croydon South)
Q The phrase I have heard several of you use is this idea of a one-way bet. Given that it is a one-way bet, it is no surprise that the floodgates have opened in the past few years.
I would like to come on to the pre-med offer point, which is important. In clauses 64 and 65, legislation contemplates essentially banning pre-med offers where there has been a whiplash claim—a whiplash claim is defined as in clause 61. Would it not make sense, in relation to the banning of pre-med offers, to suggest that any personal injury claim in relation to a road traffic accident should involve a face-to-face medical examination, rather than just the whiplash claims, as currently drafted? Would that not be a much stronger way of ending the pre-med offer practice?
Chris Philp (Conservative, Croydon South)
Q Are those face-to-face medicals?
Chris Philp (Conservative, Croydon South)
Q You are unusual in doing that, are you not?
Chris Philp (Conservative, Croydon South)
Q So the suggestion I just made is in line with your current practice, and it would effectively force the rest of the insurance industry to adopt the very commendable practice you are already adopting voluntarily?
Chris Philp (Conservative, Croydon South)
Mr Dixon, are you happy with thatQ ?
Chris Philp (Conservative, Croydon South)
Goodness me, there we are! A further usual outbreak of unanimity.
Chris Philp (Conservative, Croydon South)
Q There are two operative provisions in the Bill. One is in relation to the fixed tariff, and one is in relation to pre-med offers, and one might treat them slightly differently.
In relation to the definition of whiplash in clause 61, my colleagues have asked about this already but, having read your submission to the Committee, Mr Dalton, I think I am right in saying that you are concerned that the definition in clause 61(1) is too narrowly drawn. In particular, it excludes the back, and you are worried that there will be a sudden miraculous upsurge in people with bad lower backs.
Chris Philp (Conservative, Croydon South)
Q To be clear, we have heard a figure of £1 billion a year of savings mooted in the past. If we adopt the definition as drafted, in your opinion what proportion of those estimated savings will in fact be realised?
Chris Philp (Conservative, Croydon South)
Q The final question I would like to ask is about a matter I understand might be introduced into the Bill at a later date, which is to do with the discount rate used when paying claims for long-term injuries. It has recently been amended by the Lord Chancellor from, I think, 2.5% down to minus 0.75%. I would like to close by giving each of the panellists an opportunity to comment on that move and the impact it may have on the wider public.
Chris Philp (Conservative, Croydon South)
Q In the absence of any change, what is your assessment of the percentage impact on the average car insurance premium in this country?
Oliver Heald (Conservative, North East Hertfordshire)
Q I do not know if Mr Dixon and Mr Dalton would agree that the Lord Chancellor has had to exercise her duty in a quasi-judicial way under the existing mechanism as it stands. It is right for this to be a consultation about the future, but that was the law. Do you agree?