Prisons and Courts Bill (First sitting)
The Committee consisted of the following Members:
Chairs: Mr Graham Brady, † Graham Stringer
Arkless, Richard (Dumfries and Galloway) (SNP)
† Burgon, Richard (Leeds East) (Lab)
† Fernandes, Suella (Fareham) (Con)
† Gyimah, Mr Sam (Parliamentary Under-Secretary of State for Justice)
† Heald, Sir Oliver (Minister for Courts and Justice)
† Jenrick, Robert (Newark) (Con)
† Lynch, Holly (Halifax) (Lab)
McGinn, Conor (St Helens North) (Lab)
† Opperman, Guy (Lord Commissioner of Her Majesty's Treasury)
† Philp, Chris (Croydon South) (Con)
† Qureshi, Yasmin (Bolton South East) (Lab)
† Saville Roberts, Liz (Dwyfor Meirionnydd) (PC)
† Smith, Nick (Blaenau Gwent) (Lab)
† Swayne, Sir Desmond (New Forest West) (Con)
† Thomas-Symonds, Nick (Torfaen) (Lab)
† Tomlinson, Michael (Mid Dorset and North Poole) (Con)
† Tracey, Craig (North Warwickshire) (Con)
† Warman, Matt (Boston and Skegness) (Con)
Katy Stout, Clementine Brown Committee Clerks
† attended the Committee
Joe Simpson, Assistant General Secretary, Prison Officers Association
Martin Lomas, Deputy HM Chief Inspector of Prisons, HM Inspectorate of Prisons
Nigel Newcomen CBE, Prisons and Probation Ombudsman
Rachel O’Brien, Director of Transitions Spaces, Royal Society for the encouragement of Arts, Manufactures and Commerce (RSA)
Public Bill Committee
Tuesday 28 March 2017
[Graham Stringer in the Chair]
Prisons and Courts Bill
Before we begin, there are a few preliminary announcements. May we switch off electronic devices, or put them on to silent? Tea and coffee are not allowed during sittings.
We will first consider the programme motion printed on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, followed by a motion to allow us to deliberate in private about our questions before the oral evidence sessions. In view of the time available, I hope that we can take those matters formally, without debate.
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 28 March) meet—
(a) at 2.00 pm on Tuesday 28 March;
(b) at 9.25 am and 2.00 pm on Wednesday 29 March;
(c) at 4.30 pm and 7.30 pm on Tuesday 18 April;
(d) at 11.30 am and 2.00 pm on Thursday 20 April;
(e) at 9.25 am and 2.00 pm on Tuesday 25 April;
(f) at 11.30 am and 2.00 pm on Thursday 27 April;
(2) the Committee shall hear oral evidence on Tuesday 28 March in accordance with the following Table:
Until no later than 11.00 am
Prison Officers Association; Her Majesty’s Inspectorate of Prisons; Prisons & Probation Ombudsman; Royal Society for the Encouragement of Arts, Manufactures and Commerce
Until no later than 3.15 pm
Legal Aid Practitioners Association; Professor Richard Susskind OBE; The Law Society; Women’s Aid; Transform Justice
Until no later than 4.30 pm
Association of British Insurers; Association of Personal Injury Lawyers; Aviva
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 4; Schedule 1; Clauses 5 to 21; Schedule 2; Clauses 22 to 30; Schedule 3; Clauses 31 and 32; Schedule 4; Clause 33; Schedule 5; Clause 34; Schedule 6; Clauses 35 and 36; Schedule 7; Clause 37; Schedule 8; Clauses 38 to 44; Schedule 9; Clauses 45 to 49; Schedule 10; Clause 50; Schedule 11; Clause 51; Schedule 12; Clauses 52 to 54; Schedule 13; Clause 55; Schedule 14; Clause 56; Schedule 15; Clauses 57 to 72; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00pm on Thursday 27 April. —(Sir Oliver Heald.)
The deadline for amendments to be considered at the first line-by-line sitting of the Committee was the rise of House on Friday. The next deadline will be 4.30 pm on Tuesday 11 April for the Committee’s meeting on Tuesday 18 April, after Easter. The Clerks will circulate a note about tabling arrangements during the recess.
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Sir Oliver Heald.)
Copies of written evidence that the Committee receives will be made available in the Committee Room.
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Sir Oliver Heald.)
The Committee deliberated in private.
Examination of Witnesses
Joe Simpson, Martin Lomas, Nigel Newcomen and Rachel O’Brien gave evidence.
We will now hear oral evidence from the Prison Officers Association, Her Majesty’s inspectorate of prisons, the prisons and probation ombudsman and the Royal Society for the Encouragement of Arts, Manufactures and Commerce. Before I invite the witnesses to introduce themselves, I remind the Committee that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion that the Committee has agreed to: this session finishes at 11 o’clock.
That is noted, thank you. Will the witnesses please introduce themselves for the record?
Joe Simpson: Joe Simpson, assistant general secretary of the Prison Officers Association.
Nigel Newcomen: I am Nigel Newcomen, the prisons and probation ombudsman.
Rachel O'Brien: Rachel O’Brien. I lead the work of the Royal Society for the Encouragement of Arts, Manufactures and Commerce on prisons.
Martin Lomas: And Martin Lomas. I am the deputy chief inspector of prisons.
Q 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.
Joe Simpson: First and foremost, you have got to recruit, Minister. At the moment—I make no apology about it—the remuneration package for a prison officer is not meeting the needs of the National Offender Management Service. Will it help? Of course—more prison officers will always help. Pre-2012, we had 7,000 more prison officers. We had fewer deaths, fewer suicides, less violence and less drugs, then all of a sudden 7,000 go and we are in the situation we are in. But, yes, it would help.
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?
Joe Simpson: Yes. If we get the right deal, yes, of course that will always help. I hope we do.
Q 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 issues?
Joe Simpson: In the long term, it will; in the short term, no, because we are not seeing any difference. To get the 2,500 prison officers in post, you are going to have to recruit 8,000. As quickly as the Prison Service is bringing them in, they are leaving. It is not just new starters—you are losing experienced staff as well. They no longer want to work for the Prison Service because of the violence, because of what is happening in our prisons and because of the lack of support.
Q Does anybody else want to add any comments?
Rachel O'Brien: For a long time, there has been a discussion about steady state being needed before you can look at rehabilitation seriously. My view is that you have to do both. I think the Bill does not say that much, but what it does say is potentially profound. I agree that it is not just about recruiting people and remuneration. It is about saying, “What kind of people do we need now in this new world?” The duty implies significant differences, and I think there is a race going on between trying to get to that point of steady state and looking at the longer-term picture. I agree with much of what is in the Bill.
Q Mr Lomas?
Martin Lomas: The Bill addresses a number of operational matters—certainly relating to telephones and drugs—that we think are very important, but its main emphasis is on the purpose of imprisonment and scrutiny, so obviously that will be a medium to long-term improvement. We welcome that. Some of the issues you raised are about practical management and operational matters, which can be dealt with under current arrangements and structures.
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?
Joe Simpson: Yes, I am aware of that, Minister. However, the question will be how long we have them for. Once they come into prison and actually see the reality of where they are going to be working, a lot of staff are not getting past the probation point, which is 12 months, because the training does not get them ready for working in a prison. It is a challenging environment, especially now.
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.
Q Ms O’Brien, you have said that to have proper rehabilitation we need to return frontline staffing to 2010 levels.
Rachel O'Brien: We have not done that. I welcome the measures that have been taken, but we have not done that and I do not think for one minute that we do not have an existing staff problem. Even with what we have, it is going to take a long time for those people to come through. I have also met fantastic new officers who want to make a difference and are struggling to do so. One thing we have to bear in mind is that the new way of working means stopping doing some other stuff, and that is going to take time to flow through.
I also think, though, that there is a deeper need to look at the workforce capabilities. For example, we know that mental health is a major issue within prisons, and most officers do not feel prepared to give that kind of support; I am not talking about detailed intervention but just being aware of the key issues that they are going to face, day in and day out. The race is between really thinking about what that workforce looks like at a time when most people turn on the telly and see things that may not encourage them to join the service. I have met some fantastic people; the key is to keep them, to develop them and allow them to progress.
Q 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 September?
Joe Simpson: I joined the Prison Service in 1987 and I have seen a lot of different things happen within the prison system, such as social work in prisons. We have seen the fast-track scheme before; it has taken prison officers right up to governor level—in fact, right up to second in command of the Prison Service. They are all well and good, but to make prisons safe we have to give prison officers more training than they are being given—mental health training, more suicide awareness, and more intervention with prisoners. Most of all, we need prison officers on the landing for what we call “dynamic security”—that is, they can see us and we can see them. We can keep an eye on them and keep them safe. When they can see us, they feel safe.
So we welcome the professionalisation of the prison officer and we are ready to talk to whoever wants to talk to us about professionalisation of our members and all prison staff. Yes, the graduate scheme will take people from the shop floor into higher management, if they want to go there; sometimes, though, in my experience, some of our managers forget where they have come from and what it is like to work on the shop floor. But we welcome anything that will professionalise our prison staff in making prisons safe.
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.
Joe Simpson: We would like to see a much longer training programme for new entrant prison officers, because what can you teach a prison officer in 10 weeks? What about all the other things we do? A prison officer in reality is an untrained drug counsellor and marriage guidance counsellor. We are everything rolled into one, with no training.
The only thing that you have got is experience, and you gain that experience through working in the system and in life. When you are recruiting prison staff who are 18 years old, it makes it more difficult for the more experienced staff to guide them in the way it is. When you finish your training, you are supposed to get a two-week induction into the prison to get you used to the way it works, but that never happens.
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?
Joe Simpson: On education, the POA is involved with Toe By Toe, which is where we get other prisoners to teach prisoners to read and write. We are heavily involved in that. I think we must be the only profession that wants to put itself out of a job, because we want rehabilitation, but with the levels of overcrowding we have at the moment, you are not going to achieve it. It will take a long while to start the rehabilitation that the Government want for the simple reason that we have to make prisons a safe place to work and live in.
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?
Joe Simpson: I used to do that as a prison officer; I did not need promotion for that. It was part of my role and what I was paid for, but the service has long depended on prison officers and prison staff volunteering to do that extra work with no pay and no pay rise. Some 70% of prison staff have not had a decent pay rise in five years. That is when you get problems in the Prison Service. They feel forgotten and as though they do not count. With the 2,000, why not train the rest of them in that and make the Prison Service a truly professional service?
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?
Joe Simpson: In areas with high unemployment, you will get people wanting to be prison officers because it is paid work and they will want to be in work. The high turnover is not just down to salary; it is also about when people come in and see the reality of prison life. It is all right talking about when you go to the school; I attended Newbold Revel and went straight to HMP Strangeways, and that was a big eye-opener for me.
In fact, when the door closed behind me for the first time, the hairs on the back of my neck stood up. I nearly put my keys in and left—I didn’t. The high levels of turnover are for the simple reason that prison officers no longer feel safe in our prisons. Why would you want to come to work and earn £21,000 to be spat at, assaulted, have excrement and urine thrown over you, and be physically and verbally abused? No other profession would put up with that.
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?
Joe Simpson: I think you could get a training programme that will get them ready for prison life and for working in prisons, but they also have to go into prisons and work there. When I first started, I went into Durham prison for three weeks. I came back, did the rest of my training and then went into Strangeways. When I was at Strangeways, I had what I called a “buddy officer”, and I worked with him for 12 months. If I had a problem working there, I went to him to ask a question and he answered it. He was with me all the time. That no longer happens: because of the pressure on getting prison officers into prisons and getting a regime going in prisons, that is no longer there. I think that would help.
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?
Rachel O'Brien: Two of the purposes—if you are talking about progression—imply that you have to address the fundamentals, including mental health and drug use. In terms of holding governors to account, it speaks to a flaw in the prison reform agenda more widely, which is that this is only a part of people’s journey—for some people, a very short part of their journey.
If you are in prison for a matter of weeks, there is very little that even the best governor and staff can do, even with some of the training support. We know that deaths peak the week after custody, so the key that is missing is the integration question. How do we hold governors to account for something they ultimately do not own? What role within that is there for local authority substance misuse organisations, NHS providers and the CLCs? There is a need to look across the journey in the Bill and the wider reform agenda.
Martin Lomas: There is a balance to be struck. Who could object to an objective of supporting and promoting mental health and wellbeing? The issue is, how do you define them? What does “wellbeing” mean, for example? There needs to be a certain clarity about that. Another argument is, where do you draw the line? One of the advantages of the purposes as they are currently stated is that there is clarity about them. They are punchy, specific and particular. We could perhaps stand having another couple, but there is a point at which they stop being purposes and start being standards. It is really a question of balance.
Nigel Newcomen: I certainly endorse that. On, for example, the fourth purpose—
“maintain an environment that is safe and secure”—
I cannot imagine an environment that is safe and does not have adequate mental health provision, an adequate approach to healthcare and, indeed, a decent environment. Unless I have misunderstood what is intended in the list of four purposes, I think most of the suggestions you just made would be encompassed within them. I am with Martin in assuming that if we have an endless list, you lose some of the prescription, direction and sentiment that is intended.
Q This question is probably as much for Martin Lomas or 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?
Martin Lomas: That it is clearly articulated that the purpose of an institution is to help rehabilitate and reform the individuals that are sent there? I think that is pretty fundamental and empowering, and brings clarity.
Certainly, as an inspectorate, we are committed in the Bill to take account of the purposes of imprisonment, although our criteria—the expectations, as we refer to them—are independent and separate. When we were formulating our expectations, we saw resettlement, as we term it, as fundamental, one of four interconnected features of a healthy prison: safety, respect, activity—work, in other words—and resettlement. So yes.
Rachel O'Brien: I agree. Out there, there is a need to define some of that. What we do not need is a long list of a hundred items. When we talk about wellbeing, it is not far off, and there is lots of evidence to show that you can measure that. So it should flow through to the leadership models. For example, what are new group directors for? That is going to imply a whole new partnership approach with this core purpose at its heart.
It comes back to staff, as well. Too often it is people like me that get to do the nice stuff. I do not get spat at; I do not have the uniform; I have keys but I do not have to have that authority. Staff are being pushed into a role in which they are doing only the authority side, and lots of other agencies are doing what I call “the nice bits”. It may not be brilliantly funded. I would argue that, when we look at the core workforce, that is the core job. Yes, they still need to have that authority, but all the dynamic security tells us that it is about relationships they have; it is spotting that flame in someone that can be enhanced. If you do not have enough people or time, it is hard to do that. So I would slightly push out people like me and really focus on the core workforce.
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?
Rachel O'Brien: Absolutely. The centralisation issue is a critical one. There is this profound sense of change but, at the same time, it is bureaucratic: people are feeling quite disempowered. We need to be thinking about how you drive those relationships locally. An example would be the use of ROTL—release on temporary licence. That is a decision best made locally, where governors know their people and their employers, and they can make those decisions.
Although in policy we have changed our minds, in practice, as far as I know, not a single London prison is using ROTL at the moment because of the pressures we are talking about. If we are serious about that purpose, it has to be a stick-of-rock approach right the way through. It is not just the institutions that change, but also people like us on the outside that need to respond to that.
Q 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?
Martin Lomas: It might, but I am not sure. It is quite a crude measure, and what matters is the outcome and whether there is a quality to the supervision—that prisoners have confidence in the staff around them, that the staff around them are effective and trained, as has already been referred to, and that those prison officers, in a sense, are confident in what they are doing. I think it might be useful, but equally prisons are endlessly complex, have differing requirements, face differing risks, and have different geography, which will all inform the numbers of people you will need.
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.
Martin Lomas: Possibly, but within, for example, a category, there are different types of institution, different emphases in terms of supervision and risk, and competing requirements. The issue is to ensure that the outcome is right—that there is quality to the supervision, and sufficiency in the numbers, and a way of working with people that is respectful and supportive and engages the prisoner.
We have seen lots of places where prisons are insufficiently supervised—there are not enough people around. There is a variety of reasons for that. One of the consequences of that, ironically, is that prisoners have a chronic collapse in confidence. They are afraid because of it, but I am not persuaded that just a crude measure is the way forward.
Nigel Newcomen: May I endorse that? I investigate deaths in custody—self-inflicted deaths, for example—and they are a pressing problem in the system. One of the features that we often find is that it is the quality of that interaction between a staff member, and showing that the staff member is trained and has enough time for that interaction, that is the issue, rather than the numeric ratio of staff to prisoners on that particular wing. If there are more staff and no empathetic interaction, there is no likelihood of the vulnerabilities being picked up.
Q 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.
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?
Nigel Newcomen: It is difficult to be satisfied that a Bill that I am still coming to terms with has got a sufficiently comprehensive reach to cover all the deficiencies exposed in that particular case. It was a very sad case where systemic failure outside as well as within the prison system was exposed—mental health deficiencies. The provision for individuals at risk was certainly not as good as it could and should have been, and I was quite robust in our investigation report.
I think the Bill will assist. I think it brings attention to the issues, and brings focus. It brings an approach to the management of prisons that should put accountability on governors to try to ensure that the provision in their establishment—at Chelmsford, for example—is sufficient to manage the sorts of very needy and vulnerable people who come through the gates of prisons. But it will also need to be supported by adequate resource, and adequate investment both from the prison staff perspective and the healthcare perspective.
The case you referred to, as I say, demonstrated a lot of systemic failures within and without the prison system, and if you are going to address them we will have to have a holistic approach, which also will involve other Departments and other provision, other than simply the Prisons and Courts Bill.
Q If you as ombudsman make recommendations, how confident are you that the Secretary of State will act on them?
Nigel Newcomen: I published a report today on self-inflicted deaths among women and I said in the introduction that I was disheartened that I was saying again many of the things I had said previously. I have been in post six years, and I say very little that is new; I tend to repeat things. That does not necessarily mean that there is any ill will or any lack of desire to implement the recommendations I make. Virtually all the recommendations I make are accepted, almost without exception. I have given action plans, and my colleagues from the prisons inspectorate will go and see whether progress has been made.
Progress is often made to a degree. I am sure that if we go back to Chelmsford, to look at one establishment you just mentioned, much will have been done in the aftermath of the case of Mr Saunders and the aftermath of other cases there, too. But sustained and consistent improvement is something that the Prison Service has struggled to achieve. One of the aspirations the Bill must have is that by ensuring greater accountability and some devolution of responsibility to governors, sustained development and improvement can be achieved. To go back to your question, I personally am quite disheartened that I have been saying the same thing for so long.
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?
Martin Lomas: The linkage is very clear. The tsunami of new psychoactive substances in the last three or four years has had an enormously destabilising impact on prisons. The chief inspector referred to that in his annual report, and I for one have never seen anything quite like it. Interestingly, some prisons cope better than others, and there are some lessons to be learned there.
The linkage between drugs and the use of mobile phones and technology is clear. It facilitates criminality—there is no doubt about it. I was talking to a colleague of mine who has inspected this regularly and one of the tricks is to meet a new prisoner arriving in the institution who does not have a phone card and so is unable to communicate, and entrap them in a sense by lending them a phone, in which the numbers are stored. That facilitates the intimidation of families and leverage on them.
The answer to that is proper prevention mechanisms to stop mobile phones coming in and to interrupt those that arrive, and the Bill is supportive of that; but also, in tandem, effective means of ensuring that prisoners have access to legitimate phones, either in cell—we see that in some more modern institutions, which is incredibly helpful—or through phone cards and effective access to, for example, the canteen. We routinely report on new arrivals to institutions who do not get access to the canteen for 10 days, which increases their vulnerability both to self-harm—it is a high-risk time—and to others. It is a twin-track response, and the Bill helps.
Rachel O'Brien: I agree with all of that on phones. You see that really small things in prisons, like not having your phone card and getting the small stuff right, can have a huge impact. On NPS, to go back to the centralisation and the local, we took a long time to respond—inspections were raising that from 2012 onwards —and it is an absolute game changer. We have not been adaptive and responsive, and I think that is partly because we wait for the central machine to respond. That resulted in a quite punitive initial response; it was like we had forgotten everything we know about healthcare and substance misuse, with NPS seen somehow as different, which is ironic, because it is legal outside. It is very strange. So you have had a really punitive response generally, and I think that is beginning to change now.
Thirdly, you need to look at supply and demand. Yes, stopping it coming in in the first place is absolutely critical, but if you have no activity and no purpose—there is a lot of evidence to suggest it is partly about boredom and time out of your head, if not your cell—you are going to seek it out. I am not sure I would not seek it out, if I was stuck in a cell day after day. We have to look at the demand side, as well as supply.
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?
Rachel O'Brien: Absolutely.
Nigel Newcomen: You would also have a safer regime. Access to legitimate phones increases family contact and the ability to mitigate your pressures inside. If you have more activity, you are less likely to be bored and less likely to need the bird-killer that is NPS. I endorse what colleagues have said: it is absolutely, fundamentally right for supply reduction to be at the heart of the Bill, but demand reduction—the lessening of the need—has to be implicit, and I take it to be implicit in the new purposes of prisons that have been specified. If it is not, we will be chasing a punitive response without the likelihood of success, because we will not have dealt with demand.
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?
Joe Simpson: It is, but drugs are not new in prisons.
Q No, it is these psychoactive substances, which are allegedly legal.
Joe Simpson: Yes. The Government have also said it is illegal to bring them into prison or throw them over the wall, yet it still happens. When you are talking about supply and demand, say for argument’s sake that you can buy a bag of NPS on the street for £1. When it comes into prison, it is worth anywhere between £60 and £80. It is big business, and it does not have a great effect on the person who is supplying it from the outside, because they are never, ever going to get into trouble, because nothing ever goes back to them. Mobile phone are big currency in prisons. As a union, we have been asking for mobile phone blockers to be put into prison for years. That would stop the criminality inside and outside of prison.
Then we have drones. When they come over, it is about what they are carrying. We have had to approach the employer and say, “When there is a package dropped off into the grounds of a prison, you have got a prison officer immediately being told to go over and pick it up. It could contain anything, and there is no proper control over that.”
Yes, more time out of cell, and a prison officer watching them and interacting with them, would help. When I was a prison officer at Holme House, we used to have prisoners out on association, and they played pool and went on the phone. When you had a bank holiday weekend, such as Easter, by Sunday dinner time they were bored, because they were doing the same thing every weekend and every evening. It is about changing that, with education in the evening, gym programmes and programmes that prison officers can lead on, because before we entered the job, we had a prior life. We have teachers who have joined the Prison Service. They have a wealth of experience, but no one is using them, because we are going back to what we fear is a turnkey situation.
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.
Joe Simpson: Yes.
Martin Lomas: I agree that NPS is a specific challenge, and it has been a game changer. We have seen prisons that do better than others—this is a bit speculative, and there needs to be more research into this—and that seems to be down to effective multi-disciplinary working, particularly with local law enforcement and the like.
However, your point is valid: there cannot be reform, work, education and rehabilitation without safe institutions, but there is then a feedback loop. If prisoners understand, believe and realise—as enough of them do; there is a critical mass—that they might have to be in prison, but at least there they have a chance, or that it is worth investing their effort, or that there is a constructive opportunity for them, that in itself will begin to lift the bar and create a sense of positivity and civility within the institution.
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.
Martin Lomas: Whatever technology works. Actually, in prisons, nobody is allowed a mobile phone; there may be a community consequence.
Q Not on the block, but in the broader area it is still a pain to have anything blocked, is it not?
Martin Lomas: I can imagine so.
Rachel O'Brien: If you look at open prisons, or somewhere like Britannia House in Norfolk, the prisoners who are working outside during the day have access to mobile phones. That is really important for jobs. As ever, it is about looking at the context.
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?
Rachel O'Brien: That is a problematic position, and in a way I think that is where we have been stuck for years. We cannot do this stuff—we all agree with this rehabilitative outcome—until we have that. I agree, and I would love to see more staff investment, but a lot of it is also about culture and leadership. We have talked about rehabilitation, but we have a prison system that is still, in lots of ways, very command-and-control, and of the old military model. In terms of culture and hope, prison officers and prisoners are like us: they have ambition, purpose and activity. That is what is missing. Yes, we need more staff, and we need to use them and the external agencies more wisely, but the key is rethinking the culture and how prisons are run. That is what makes the difference. We know it makes a difference, because we have some fantastic prisons and wings and so on that operate very differently.
Nigel Newcomen: If I may say so, I think it is a counsel of defeat. The prison system has always faced many challenges. I described NPS as a game changer in one of my reports, and it probably has been, but it is not that there is no work going on in either supply reduction or demand reduction. There are even some very good efforts being made at harmonisation by prisoners themselves. There is always scope for improvement, and to assume that there is no answer to the problem is, as I say, a counsel of defeat.
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.
Martin Lomas: There needs to be proper supervision of prisoners to give confidence to staff and prisoners. That might involve a resource solution, but equally, as colleagues have said, there are issues around leadership, accountability, learning the lessons that have just been pointed out to you, and sustaining improvement, rather than this being the rollercoaster that we often see. A variety of resource, cultural, management and leadership issues need to be put right.
Rachel O'Brien: You mentioned prisoners and the role of prisons. That is a huge untapped resource. It is very easy to talk about things like co-design and working with prisoner empowerment, but when you do it, you see the transformative change, not just among the prisoners but in the staff, and if staff are doing it, rather than people like me, that is how you get a completely different kind of response. Prisoners can be your best allies. They do not want to live in unsafe environments where it becomes the norm to be off your head. One of the things that would not be in the Bill but is absolutely about the culture is seeing prisoners and their families as key assets to support outcomes.
Chris Philp, on this point. I want to exhaust this area before we move on to the next questions.
Q 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 that?
Martin Lomas: I was making a broad point about there not being a single solution to the problem, and about how there needs to be analysis of what is needed in particular institutions. The Bill requires us, as an inspectorate, for the first time to take account of leadership, and we will be commenting on it. We sort of do already, but this will be a more transparent arrangement. Our intent is to link our commentary on leadership very directly to the outcomes that we see in the prison. We are not management consultants as such, but we will look for there to be evidence of leadership—at every level, because it is not just about the governor. There needs to be leadership among staff and at the Ministry of Justice. A variety of influences will create a situation in a particular institution.
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?
Martin Lomas: It is not something we specifically look at, although they are going to begin looking at it, but every prison will have a security protocol that will specify the amount of searching that takes place. That is just the routine element. There will be search protocols around specific risk areas like visits, reception and the like, and there will be targeted searching in response to intelligence that comes in through information reports. There will be a variety of responses and different levels of searching, some more intrusive than others. Beyond that, there will be the application of technology, dogs and all sorts of available options.
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?
Martin Lomas: I do not think that I can give a broad-brush answer to that. There are 120-odd institutions that perform differently, and the identification of contraband might be a sign of the success of searching, so it is a difficult one to answer. We look at the security of the institution, the risks that it faces and questions of proportionality. Prisons have to be constructive places, so searching needs to be justified, reasonable, effective and for a purpose. A variety of factors need to be considered.
Mr Simpson, what is your view of the search regime?
Joe Simpson: At the moment, it is hit and miss across the whole system, and that is down to staffing pressures and the regime. The Prison Service ultimately does whatever it has been told to do by the Secretary of State in power at the time. We have gone from “security, security, security” to “regime, regime, regime”. Only at the weekend one of our prisons had to shut down the whole prison in order to put on visits on a Saturday afternoon. Nothing else happened—there was no searching and the prisoners were not out of their cells. They were in their cells because there were not enough staff on duty to get them out.
It depends on what the searching protocol is for the prison as well. Obviously, we have got different categories—A, B, C and D. I would say that the searching strategy in the category A and B systems is more robust because of the types of prisoner being held. In cat C and cat D, I would say it is not as much as we would like to keep people safe—especially in the cat C estate.
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?
Rachel O'Brien: I am slightly nervous of the new HMPPS defining this thing. We know a lot about wellbeing: for example, we can measure people’s ability to make good decisions and their self-confidence—all sorts of things that are prerequisites for the resilience they will need going forward. We are working with a high-security prison at the moment to develop a community-wide strategy. The outcome is going to be great. It is about thinking about, in a very closed system, how you have a better relationship with the outside world, family and so on. Actually, it is about the process of engagement with those prisoners, when they are talking strategies and tactics. They would not necessarily agree to do desktop publishing, but they will do it because they are producing a newsletter to communicate. It is that kind of approach, and you can measure people’s progress—partly because they will tell you and partly because you see it. It is that kind of approach that we need to replicate. Prisons need to be able to do things themselves rather than outsource them, because that is how staff can get those really valuable relationships.
Q 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 Bill?
Nigel Newcomen: As I said, I impute from the purposes onward that some of the balances that we have been struggling to put across to you are required are implicit in the Bill’s structure. Demand reduction is a necessary partner of supply reduction. If you have only one, you are going to have only part of the solution. It is essential to have supply reduction, both for phones and for drugs, but you equally have to have work to mitigate the demand and the need for those illicit goods. Without that balance, I think we are on a hiding to nothing. There is nothing in the Bill that I can see that precludes that balance.
Q Would you be prepared to suggest additions to the Bill that might make it less implicit and more explicit?
Nigel Newcomen: I am not sure I can think of any. It just seems to me that, unless we are misinterpreting it, the supply reduction issues are necessarily going to be balanced if you want a purposeful, rehabilitative prison. It is implicit that you have to do both. You cannot simply attempt to reduce supply if demand is insatiable.
Martin Lomas: I agree with that, but I would also make the point that there has to be a balance. One goes with the other. I make the observation that it is not perfect. How much is enough? We often report quite positively on some of the demand-side work that we see taking place within institutions, notwithstanding some of the other issues around it. In contrast, when we inspect we survey prisoners and one of the questions we ask is, “How easy is it to get drugs in this prison?” and although I cannot remember the exact statistic, the increase in positive responses in recent years has been striking. We comment on that routinely in our reports—that quite a lot of prisoners are telling us it is easy to get drugs in. Some of that will be over the wall, some will be an interpretation of the question around, for example, the diversion of prescribed medication, which is also an issue. So it is a complex problem and there has to be a balance. Questions of quantity will always be difficult to determine absolutely, but a balance is what is needed.
Mr Simpson, what do you think?
Joe Simpson: On the demand side, the Prison Service has been very successful. When I joined, the drug of choice was cannabis; then, when they started mandatory drug testing, it went from cannabis to heroin and cocaine, for the simple reason that they stay in the body a lot less than cannabis. But we just punish prisoners; if they get a positive MDT, they are punished and that is the end of it. We are not doing anything to say to them, “Why are you taking it?” Why don’t we turn around and start educating them about the drug issue, rather than just punishing them? As long as we punish them, nothing is going to change, because they still want that drug; they will still want it inside.
As long as people are coming into prison and bringing it in—the supply side of it—they do go hand in hand. We have to stop the supply but we also have to start to reduce the demand as well, because if we reduce the demand, the supply will stop coming in because people will no longer want it.
How do we do that? When I was at Holme House we had a successful drug treatment wing there. We turned it on its head: it was run by the prisoners. They looked after everything; they made sure everything was clean and took over the duties of the prison officer. The prison officer was still there; we were still there supervising it and it worked. Then all of sudden, because we ran out of money, it went. We reduced the demand and then, once the money stopped, the demand went back up, because there was nothing there to get prisoners to take charge of their lives in prison. That is what is missing.
Rachel O'Brien: It is an interesting question, in terms of responsibility. I would raise a concern about that being just on the governor, not going any wider. It is interesting to ask about the responsibility to reduce demand and how you might show that. The other parts of the Bill that are important concern education, employment and health commissioning, because ultimately if we do not have more people working, more people getting the treatment they need, the supply will respond to demand. For me, a key question is whether that commissioning going to be more local, more sensitive and more productive. Many prisoners will tell you that they are either in their cell most of the time or they are doing another level 1 catering when they have done four as they have moved around the system. The intention, not so much as reflected in the Bill, but in the education strategy and so on, is to actually look at more progression for people.
Again, it comes back to the fact that a prisoner will tell you exactly how they want to progress, but what if that is not available? I really worry that while what is in the Bill looks like a decentralisation of commissioning, I am not clear that that is actually what is going to happen.
Q I refer the Committee to my entry in the Register of Members’ Financial Interests. I am still in receipt of fees from the Treasury Solicitor for providing legal services to the Ministry of Justice and the Parole Board.
Nigel, I want to follow up on your point about the statutory purposes listed in proposed new section A1. There are four purposes set out and you said that an endless list would be unhelpful for professionals and for the inspectorate. Can you say a bit more about why you think that the current drafting hits the nail on the head and strikes the right balance?
Nigel Newcomen: I did not quite say that the current drafting hits the nail on the head. I said that an endless list would, I think, be unhelpful; I think Martin made the same point. If you are going to have a set of overarching purposes, they need to be relatively discrete, something managers can focus on and, in Rachel’s words, could run through a stick of rock. If it is an endless list, that is a very big piece of rock. This needs to be a means of gaining clarity for the organisation and the institution.
I said in passing, I think, that the word “decency”, for example, was missing. It may be that there are bits of drafting that may be attended to as the Bill goes through. I think a relatively discrete statement of purpose and set of aims is useful. All experience of business management and organisational institutional change is predicated on having a relatively limited set of outcomes that you are seeking to achieve. I think these are pretty good and discrete statements. They could probably be improved, but I do not think I would like to see the list get that much longer.
Q My second point I would like to raise with all members of the panel relates to health and mental health provision in the Bill and also in the White Paper. In those, there is considerable detail on how governors can work together with the local clinical commissioning group or other health providers to assess the health needs of prisoners, co-commission services and assess quality of performance, instilling a bit more responsibility and flexibility in the system to safeguard health and mental health concerns. I would like the panel’s views on the mental health and health provisions.
Joe Simpson: When you are bound to outside agencies, especially in prisons, they are not there 24/7. The only people who are there 24/7 are prison officers and prison staff. One thing that we are going on from mental health is also social care in prisons. We have a lot of older prisoners who need more social care. Between the hours of 7 o’clock at night until 7 o’clock the next morning, they do not have access to that, and we do not have access to that as prison staff. We have no training whatever in order to assist prisoners who have those needs.
Mental health and health wellbeing should start on reception at the prison, when the prison officer brings the prisoner into prison, goes through the reception process and then passes them on to our colleagues for the mental health check. From that should come a plan of care, but that is not there, for the simple reason of time—“Let’s get them through because staff need to get off,” or, “We need to do this; we need to do that.” It is constant pressure on the regime and having the staffing available to do that.
If you are dependent on an outside agency that has its own staffing problems, it is not going to be done. That is the frustrating part from our members’ side. They identify a problem and nothing seems to be done for two or three days because we cannot get that expertise in. Why not utilise the person who is already there—the prison officer—and train them to do those duties, so that we can give better mental health care and increase wellbeing?
Q May I return to the issue of prison officer safety? I have tabled some new clauses that I hope will be helpful in that regard. On Second Reading, we touched on the issue of a prison officer being assaulted in prison by a prisoner. Is that referred to the police, followed up by the Crown Prosecution Service and taken to court, or is it dealt with internally within the prison? What is your experience of the decision making around that process, and what would be the preference of the Prison Officers Association for dealing with those types of incidents?
Joe Simpson: Our view is that somebody who assaults our members should be punished. As for the question of who does that, we are not really bothered. Our experience, and my members’ experience, of the police and CPS is actually getting a policeman in to do the investigation. More often than not, what comes back from the CPS is that it is not in the public interest, because that person is serving a sentence and in prison anyway. That demoralises our members. They feel as if they go to work and they are just punchbags. There was a big campaign by the trade union to try to change people’s thinking on that, because we work behind a wall—people do not look in and we do not look out. We would like our members to be protected by the law and to be taken seriously when they are assaulted at work.
Some incidents are serious physical assaults, but you also have to look at the mental aspects, especially in relation to spitting and biting. Let us say that a prison officer is bitten. We do not know the prisoner’s history. We do not know whether they have any blood-borne disease or anything like that. The officer then has to spend six months on antiviral treatment and everything like that, and along with that goes the mental anguish, not just for the member of staff, but for their family, because they cannot interact properly with their family for six months. That leads to its own problems: high rates of divorce, cases of alcoholism and people just not wanting to come to work. That develops into mental health problems. While they are in the service, they are looked after, but once they are dismissed by the service, all that assistance stops, because the employer turns round and says, “Well, we’re no longer responsible for that care.” Sometimes we are putting really poorly and ill prison officers back into society with no assistance whatever, because of something that has happened in the course of their work.
One of the most disgusting things ever is potting. It is especially the female members of staff who are targeted. A prisoner or prisoners will fill a bucket or whatever with excrement and urine, wait for the officer and then tip it over them. We are seeing an increase in that, because prisoners seem to think that it is more acceptable than hitting a member of staff or hitting a female member of staff. They still see that as a bit of a taboo subject, but that is starting to break down. They are not just targeting male staff; they are now targeting female staff as well, especially with potting, which is absolutely disgusting.
Q Mr Lomas, when you do inspections of prisons, is how assaults on prison officers are investigated something that you would look at?
Martin Lomas: The specific technicalities of how they are investigated, no, but the fact of assaults on staff, yes, it is something we would look at. We would look to disaggregate the data to see whether we can get any learning from them, so we would look at fights and assaults—prisoner-on-prisoner assaults and prisoner on staff. There is no doubt that violence is increasing across the three, but it is notable that violence against staff is increasing; it has increased quite markedly in recent times. At an anecdotal level, we watch videos to try to get some sense of the—this is an unfortunate word—quality of the violence, and yes, some of it can be quite disinhibited, concerted and reckless. There was a case recently in which a member of staff in a midlands institution was very severely assaulted and hospitalised. They went through considerable trauma; the case has been reported in the media.
Yes, we report on violence as a feature of relationships between staff and prisoners, but the questions about policing priorities in a certain area or the decisions of the CPS in terms of public interest and what have you are matters that they would need to account for. But yes, we believe that staff should be supported and that prisons should be safer, and we believe the Bill is a positive measure in supporting that endeavour.
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.
Martin Lomas: We look at outcomes. The process of investigation and whether the investigation was competent, whether the police should be more engaged and certainly whether the CPS should have charged—we would not look at that.
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?
Martin Lomas: We think this is an important step forward. We think the Bill is helpful and useful. We have already talked about what it says to those who run institutions, with regard to their purpose and what they are meant to be doing. As far as the inspectorate is concerned, we believe it strengthens our institutional framework. It recognises us formally as an entity and clarifies our powers. At one level, those powers have not changed, but the Bill clarifies them, which is important in terms of asserting our independence and reflecting the public’s understanding of what we are about. We believe that the reference to OPCAT—the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment—is absolutely critical in emphasising the independence of the inspectorate and consequentially its authority and ability to speak to issues and to all stakeholders, including the Government and others.
We believe the specifics around the requirement to respond on recommendations—reflecting current practice, but raising the importance of the process, formalising it, and making it more accountable—is a very big step forward in terms of our impact. Added to that, the notification arrangement and the significant concerns that are referred to again reflect practice. We would not walk away from a disastrous prison and not do something. We do act, and in fairness to the National Offender Management Service as it is now—Her Majesty’s Prison and Probation Service—it does respond in those circumstances. This is about making that process more transparent and accountable and putting names to the responsibilities. It is most definitely a step forward.
Rachel O'Brien: I agree with all of that. We recommended that stronger role for the inspectorate. There is a question about what happens in between inspections; that is sometimes a bit strange. There are top-level things that drive change for the three or four years in between. That is a question that we did not answer. We looked at the possible role of the independent monitoring boards, for example, to look at the more institutional day-by-day changes in the shorter term, but also new issues that might come up. The danger is that sometimes we say, “Those are the three priorities” and meanwhile something changes over here, in the local drugs market or whatever it is, so there is a question about what happens in between.
My overall accountability freedom issue would be that I worry about the balance. There are a lot of new accountabilities, still from the top-down league tables. Are those governors and new group directors going to have sufficient freedoms to make local decisions? That is the key question. That cannot be defined in primary legislation; it is much more about the narrative coming out from Government and so on.
Joe Simpson: The POA welcomes the changes, but do not think they go far enough, both for the chief inspector and for the Prisons and Probation Ombudsman. We would like to see the same legislative powers given to them as the Health and Safety Executive. If someone is going to inspect prisons, then inspect prisons and everything that goes on. If there are recommendations, someone should turn round and say to the governor “You are not doing something right.” If we are giving governors autonomy, it is not the Secretary of State who is running the prison—it is the governor. He is the employer and the person who is in charge of that prison, so they should get the 28-day notice. What is the point in putting that all the way back up for the Secretary of State, so that she can say, “Yes, we have an action plan”? We would rather see something coming from the chief inspector of prisons go to the governor to improve things, and if they do not improve them, the legislative powers akin to the Health and Safety Executive given to the chief inspector and the PPO. If we are going to have independence—the independent scrutiny of prisons and the independence over deaths in prisons—they should have that legislative power to turn round and make things change, rather than wishing for it.
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?
Joe Simpson: Yes, because we have got a chief inspector of prisons and you cannot just go and do some parts of a prison and not do it all. You have got to look at everything. You have got to look at the safety—are there enough staff, are staff being looked after, are assaults against staff being investigated properly? Then you have to make the recommendations to the governor to get it right.
Q When you mention staff, Joe, is there a level of staffing beneath which you believe it is dangerous to go?
Joe Simpson: There is, yes. You have to have enough staff to do what we call the basics—to ensure that prisoners are safe and getting their meals, access to medication, access to education and access to fresh air and exercise. That is the basic minimum we can give, and everything above it is what we term the fluffy parts of prison. At the moment we are operating at that level. We believe that if the chief inspector has that legislative power things will change, because the governor becomes accountable and so does the Secretary of State.
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?
Joe Simpson: What I am saying is that if the chief inspector goes in and has the 28-day order, the notification to change something comes to the Secretary of State—it does not go to the person who can make that change. The Secretary of State gets it, and then you have a three-month intervention. They then come back down to the governor to say, “This is what is wrong. What are you going to do about it?” They give the plan, it comes back up to the Secretary of State, and then the Secretary of State announces it to Parliament. Why do we not just give it to the governor and, for want of a better word, copy the Secretary of State in so that they know what is happening? Then if things are not improving, the Secretary of State intervenes once the chief inspector turns around and says they need to do that.
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.
Joe Simpson: My answer to that is, why has not anyone done anything about HMP Featherstone?
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?
Nigel Newcomen: Having made that point previously, I have to repeat that it merits consideration at least. I stick with my previous balancing point: we need to minimise the verbosity of the statements and limit the words, although maintaining an environment that is safe and secure will not necessarily ensure an outcome that is a “decent environment”, let alone a “fair environment” —again, Lord Woolf’s phrase. I hope that as the Bill goes through Parliament that will at least be explored.
Martin Lomas: I agree with that. In the inspectorate, one of our key judgments is “return of respect”. It is essentially saying the same thing and we see it as significant in defining a healthy prison.
Rachel O'Brien: I agree. For a long time, “decent, safe and secure” has been the vision, if you go into most prisons. Having that vision should be absolutely fundamental for institutions. How the new stuff is interpreted and kept simple and straightforward is what really interests me, as we talked about before.
Joe Simpson: We welcomed it. I was at Strangeways when it was done and we welcomed everything that was said. Yet again, it is another report that is gathering dust. We have seen this with different reports since I joined in 1987. My colleague has already had a go at the Corston report; it is 10 years old and nothing has happened. There has been the Mubarek report and the Woolf inquiry to end over-crowding—nothing has happened with any of that. If we are going to have a report, let us do what it recommends.
We are coming to the end of the session. Two Members are indicating a wish to speak. We will take their questions and, if any Members wish to declare any interests, they can do so before we wrap up.
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.
Nigel Newcomen: I am very clear that this is a step-change improvement in the situation for the prisons and probation ombudsman and I hope my successor benefits from it. It is quite astounding that a body tasked with investigating some of the most sensitive and secretive contexts in looking at deaths in custody and complaints in custody is basically dependent on the goodwill of those whom it is investigating for access to places, people and documents. The Bill rectifies this. This is something that not just I but parliamentarians of many hues have been calling for for many years.
There have been two previous attempts. You will note that there has been very little objection in any of the materials I have seen from NGOs. I think it will enhance the actual and perceived independence of the office, but more particularly it will improve the practical and investigative capacity and, I hope, contribute to the outcome of greater safety and fairness in custody.
Q 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 that
“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?
Martin Lomas: The Bill sets out the purposes of imprisonment, which are meant to take account of specific needs and rehabilitative agendas. If a needs analysis of a particular population group confirms that view—and I believe it—then that is a priority that the governor will need to emphasise.
If the Bill works, and that is to be seen, it gives opportunities for governors to make decisions locally based on their understanding of what is going on around them and the connectivities they can create with local providers and services. What applies to the specific case you have identified also applies to a range of other things to do with—for example, education or mental health intervention, partnerships with health authorities, safeguarding initiatives and all sorts of opportunities in that regard.
Rachel O'Brien: Yes, I think the implication of that key change is profound, but the prison system does not communicate well, generally, I would say, from top to bottom. It is a huge and complex system. We had Nils Öberg from Sweden over recently. He said the most important thing they had changed was how they communicate across the system. That goes right down to that level of forms and communication on the wings, how you do education, and so on. In my experience the best way to change that is not top down. Again, often the prisoners will say, “The way we are going to try to engage people in this is through a different format”—very visual, very simplistic. They will be best placed, often, alongside officers, to know how to do that, rather than that being mediated from above.
I am doing some work at the moment on something called the New Futures Network, which will look at how you drive innovation through the system. A key part of what we want to look at is the way we use animation, visuals and so on, right across the piece. That requires technology questions to be answered, but absolutely it is about innovation and fairness, and sensitivity in thinking about the audience. I do not think that is a kind of legislative issue in that way.
A final brief question, because I want to give time for declarations, and a brief response, please.
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?
Martin Lomas: I have not really anything more to add to what has been said already. Yes, possibly: it is an issue and a priority. Whether that specific issue of detail should be one of the stated purposes of imprisonment is a judgment call. It could be. As an inspectorate we will inspect it whether it is a stated purpose or not. There will be an obligation to meet that need if you are genuinely meeting the purpose of being rehabilitative and reforming. Mental health, for example, is fundamental. It is a priority. It is in a sense a subset of the stated purposes already. As to whether or not it should be elevated into being a stated purpose itself and whether that will impact all the issues that Nigel referred to earlier—of course we would like it to be stated in those terms, but what about other things of importance? Her Majesty’s inspectorate of prisons has its own criteria. We operate to independent criteria and will look at health outcomes, including mental health.
Are there any hon. Members who want to declare an interest before the end of the sitting?
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.
I am afraid that brings us to the end of the time allotted for the Committee. I thank the witnesses on behalf of the Committee for their evidence.
Ordered, That further consideration be now adjourned. —(Guy Opperman.)
Adjourned till this day at Two o’clock.
Prisons and Courts Bill (Second sitting)
The Committee consisted of the following Members:
Chairs: † Mr Graham Brady, Graham Stringer
Arkless, Richard (Dumfries and Galloway) (SNP)
† Burgon, Richard (Leeds East) (Lab)
† Fernandes, Suella (Fareham) (Con)
Gyimah, Mr Sam (Parliamentary Under-Secretary of State for Justice)
† Heald, Sir Oliver (Minister for Courts and Justice)
† Jenrick, Robert (Newark) (Con)
† Lynch, Holly (Halifax) (Lab)
McGinn, Conor (St Helens North) (Lab)
† Opperman, Guy (Lord Commissioner of Her Majesty's Treasury)
† Philp, Chris (Croydon South) (Con)
† Qureshi, Yasmin (Bolton South East) (Lab)
† Saville Roberts, Liz (Dwyfor Meirionnydd) (PC)
† Smith, Nick (Blaenau Gwent) (Lab)
Swayne, Sir Desmond (New Forest West) (Con)
† Thomas-Symonds, Nick (Torfaen) (Lab)
† Tomlinson, Michael (Mid Dorset and North Poole) (Con)
† Tracey, Craig (North Warwickshire) (Con)
† Warman, Matt (Boston and Skegness) (Con)
Katy Stout, Committee Clerk
† attended the Committee
Jenny Beck, Co-Chair, Legal Aid Practitioners Group
Professor Richard Susskind OBE
Richard Miller, Head of Justice, The Law Society
Polly Neate, Chief Executive Officer, Women’s Aid
Penelope Gibbs, Director, Transform Justice
James Dalton, Director of General Insurance Policy, Association of British Insurers
Brett Dixon, Vice President, Association of Personal Injury Lawyers
Rob Townend, UK General Insurance Claims Director, Aviva
Public Bill Committee
Tuesday 28 March 2017
[Mr Graham Brady in the Chair]
Prisons and Courts Bill
Examination of Witnesses
Jenny Beck, Professor Richard Susskind, Richard Miller, Polly Neate and Penelope Gibbs gave evidence.
We will now hear oral evidence from the Legal Aid Practitioners Group, Professor Richard Susskind, the Law Society, Women’s Aid and Transform Justice. We have until about a quarter past 3 for this session. Would the witnesses please introduce themselves for the record?
Richard Miller: My name is Richard Miller. I am head of justice at the Law Society.
Penelope Gibbs: I am Penelope Gibbs, director of the charity Transform Justice.
Polly Neate: I am Polly Neate, chief executive of Women’s Aid.
Jenny Beck: I am Jenny Beck, co-chair of the Legal Aid Practitioners Group.
Professor Susskind: I am Richard Susskind. I am IT adviser to the Lord Chief Justice and I chaired the Civil Justice Council advisory group on online dispute resolution.
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.
Professor Susskind: The motivation behind this is interesting. If one thinks of low-value claims—say civil claims—the current process is too costly, too time-consuming, largely too combative and largely unintelligible for the non-lawyer. Lord Dyson, the former Master of the Rolls, put it well when he said that any system that has a 2,000-page user manual has a problem, and that is the traditional civil justice system. I have long been an advocate of thinking of different ways of resolving disputes.
It seems to me that one argument that is often put is that we are going to allow people who can afford lawyers and legal advice access to the traditional court system, and those who use an online process will receive a second-class service, but our group—and, I believe, the Government—anticipates a system that is more accessible, more proportionate, quicker, easier to use and does not require people to take a day off work or pore through thousands of pages of rules, which seems to me to be a first-class service rather than a second-class service. It may be that, from a purist’s point of view, one can see advantages in the traditional system—I am a great believer in the traditions of the law—but for small, low-value claims, I think what is proposed here will be a great improvement rather than some pale substitute for the traditional system.
The implications for lawyers are very interesting. In so far as one of the great mischiefs sorted out here is that of litigants in person—that is to say people who represent themselves—then today lawyers are not involved in the process in any event. So for both litigants in person and for the great mass of people to whom we often refer as having unmet legal need—those who cannot afford or find too forbidding entry into the system in the first place—there is no impact on the legal profession at all, because the legal profession is not involved today.
As for the cases—they will probably be slightly higher value cases—that lawyers currently undertake, it is wrong to suggest that lawyers will be excluded from the process. There is a misunderstanding and ongoing debate about this. It has never been anyone’s intention that lawyers should not be allowed to participate; the intention is that this should be a system that people can use without the assistance of lawyers. My research is in medicine, law, tax, audit and architecture, and I think there is no denying that right across the professions we are seeing technology being used in ways that will reduce the number of some traditional jobs. On the other hand, new jobs will arise.
As I often say, the law is no more there to provide a living for lawyers than ill health is there to provide a living for doctors. It is not the purpose of the law to keep lawyers in a living. Lawyers, like all other industries, have to face the challenge of modernising and industrialising, and this is one of the consequences of offering far greater access to justice through technology.
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?
Richard Miller: I think it has been readily accepted among many people who have discussed this issue that the system will work most effectively if there is good legal advice at appropriate points within the process. It may well be that the role of lawyers in this revised system is very different, but people who are looking to enter into any sort of dispute resolution system will want to know whether they have a good case, what evidence they need, whether any defence filed is valid and how to respond to it. There will be key stages within any case where good-quality legal advice will be essential if the system is to work effectively, but that is not to say there will not be a different role for lawyers within the system if it rolls out as is currently envisaged.
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?
Professor Susskind: That is entirely feasible. I take the point entirely that there will be places where it would be beneficial to have the participation of lawyers. It might well be that we can, in an online process, involve lawyers in a more modular, occasional way, rather than an all-or-nothing way. If I am absolutely honest, we are to a large extent on new ground here. We can look at what has happened in Canada and what is happening in Singapore and Holland. We are feeling our way.
The overwhelming evidence is that online dispute resolution provides a cheaper, quicker, less forbidding service, but no one in the world has yet delivered an integrated service of the sort that the Law Society is sensibly anticipating, where lawyers can be involved in a structured, systematic way in the new process. I would welcome that, but again, we cannot forget the swathes of cases just now where people are self-represented or do not go to law at all, and lawyers are not involved. With online dispute resolution, there is the possibility of lawyers becoming more involved in some of those cases that they do not reach at all now.
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?
Professor Susskind: It is important to draw a fundamental distinction—I am doing it in my terms—between virtual hearings and online process. With virtual hearings, there is a hearing: that is to say, there are people communicating with one another at the same time, but they are not all physically in one place; there is a video connection and an audio connection. Technologists would call that “synchronous”. Everyone has to gather together, and it may not be in one physical space, but there is a hearing and they are all attending it virtually. Online process is quite different. It is asynchronous: that means a party can submit a piece of evidence and a judge can respond, but they do not all need to be online at the same time. I am not sure if the Bill or people around the table are completely comfortable with that distinction between virtual hearings and online process. They are very, very different beasts.
The virtual hearing, in a sense, is a natural evolution from the traditional hearing. If people are vulnerable, if they are many miles away, or if it does not seem proportionate for them all to attend in person, why not attend by video and audio? That is the idea of a virtual hearing. It is an extension of the current system. An online process is often entirely different.
Q 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 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?
Penelope Gibbs: With huge difficulty. I would say that the virtual hearings as done now are slightly different from the ones piloted in 2010 in terms of the cost basis, but we still have a huge problem about the relationship between the lawyer and the client. Every piece of research that exists suggests that that communication is impeded.
The other huge problem that came up in that research, which was under-reported, was that actually it reduced the number of people who used a lawyer. In that research, I think only 52% or something of the defendants used a lawyer, despite the fact that all had access to legal aid. So there was something about the circumstances of doing it virtually that meant that they did not use a lawyer, and I would say that the criminal system, in some ways like the civil system, is pretty unsuited to anybody not having a lawyer. It is very complicated and complex, the procedure is difficult and the law is difficult, so there are huge concerns about having people virtually, nearly half of them without a lawyer, with huge decisions being made about remand and sentence, and even the proposition of trial in the Bill by conference call or virtually where you can see people.
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?
Richard Miller: There would be strong argument for that, yes. We see a clear difference between initial hearings in criminal cases where, for example, bail is being decided and subsequent administrative hearings. For subsequent administrative hearings—for example, where the client has been remanded in custody and is already in prison—having the video link from prison makes a lot of sense. Our members report to us that those sort of virtual hearings work perfectly okay.
The real concern is around the initial hearings, where a whole range of interactions lead to decisions on, for example, whether bail should be granted. The lawyer has to talk to their client and to the prosecution, and they might have to talk to the defendant’s family. There may be ongoing discussions while the case is being heard, with the magistrates coming up with ideas for bail conditions that the lawyer needs to take instructions on. All of those interactions are very difficult to have when you are holding a virtual hearing and the lawyer and the client are not in the same place. That is based on feedback from our members who are involved in the existing pilot projects: they find those interactions very difficult. There are real risks, and particularly when the client is vulnerable it is very difficult indeed to build up that necessary relationship of trust between the defendant and the lawyer to ensure that the right outcome is reached.
It is worth remembering that if in the hearing there is a situation where bail might have been granted but because the necessary instructions cannot be taken or necessary discussions cannot take place the client is remanded in custody, that has a significant impact not only on the client but on the public purse. That is particularly noteworthy, given that the Bill has as its first part—the prisons part—a clear aim to reduce the use of prison where appropriate and to make prison more rehabilitative. If we end up sending more people to prison who should not have been there in the first place, that really is running counter to what we are trying to do with the Bill.
Professor Susskind: I want to answer the question in a slightly different way. Incidentally, I think it is very dangerous to make assumptions about the future based on a report about technology that was written in 2010. We are seven years on from 2010 and I presume the technology was from at least a few months, if not a couple of years, before then. The transformation in video calls since then has been absolutely astounding. Think of the way in which we all use FaceTime and Skype. We are now entering an era of telepresence—I joke not. Recently, I offered someone a cup of tea when I was in a telepresence conversation with them by video. These systems are never going to be any worse: they are getting better and better. Strategically—and this is where we have to have a collective vision—our role is not to think, “How was that technology X years ago when we looked at it?” but rather, “How will it be in two or three years’ time?” It is only going one direction.
Is it not interesting when you think of youth, because is that not such a common way for young people communicate now? Relationships are established through FaceTime and other similar types of videolinking. The assumptions we make as “grown-ups”—as one might say—about how we establish trust and communicate comfortably with others cannot necessarily be carried forward to people who have grown up in the internet era, for whom the conduct of a meeting and interaction via video may be more comfortable and comforting and give rise to a greater experience of trust than it would for our generation. We have to think of the next generation too.
Frankly, the research is not in the justice system. It is like the research we do at Oxford Internet Institute—considering how young people are using and adapting to technology. All the signs are that these technologies are becoming more and more powerful and people are more comfortable using them.
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?
Penelope Gibbs: That is a challenge. The Bar Council has suggested that only non-recordable offences should go on to the online conviction system, and I agree with that. To an extent, that would resolve some of the criminal record issues, because non-recordable offences are not added to the police national computer. They can attract a rehabilitation period, but they do not come up in Disclosure and Barring Service checks. That is one of the issues.
If we move on to recordable offences that do attract a criminal record, it is absolutely crucial that people are given full information. A criminal record is not just a barrier to employment: it is a barrier to education, travel and housing. Also, something might be minor and recordable, and you think, “Oh well, that is okay,” but if you have two minor offences, they come up on a DBS check. So if you apply for lots of jobs, they will come up. It is a complex area, and it is crucial that the online conviction system does do that.
It is also important that the system gives people an idea of what a viable defence is. There is an idea that people know whether they are guilty or not. It is true that they might have done the deed, but if they have a legally viable defence, they have a good possibility of being acquitted. This is a complex legal area, and it is crucial that the online criminal conviction court should go through what a viable legal defence is, and refer people to legal agencies that could help with that.
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?
Penelope Gibbs: They have moved on in a tiny way. I went to observe a court the other day and the videolink worked but the camera angle on the defendant was towards the top of his head and he was quite distant from the camera. People had real difficulties understanding what he said. That was just a month ago.
I would like to talk more about that case—
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?
Penelope Gibbs: Can I distinguish between the use of videolink for expert witnesses and other witnesses and defendants? There are different issues with witnesses, who will often benefit from a videolink, and defendants.
Q Rolf Harris watched it from prison.
Penelope Gibbs: It was his choice to do so, but in the 2010 research, the evidence was that those who were on videolink got longer sentences.
On the police station videolink, it is worth going backwards and saying, “Why are so many defendants being detained by the police on quite minor charges?” When I twice observed videolinks the other day, those people had been detained by the police, they are produced in the videolink room and most of them were released immediately after that videolink appearance. One of the police stations that it was linked to was 15 minutes’ walk from the magistrates court and the cost of the journey—in the 2010 report; I do not know if it is the same now—was only £35. For a defendant to be participating in their own process, it is worth £35 to get them into the court, because all the evidence says it is a less good process. Also, crucially in the 2010 report, people on videolink got longer sentences.
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.
Penelope Gibbs: I do not think the basics of what was looked at in the 2010 report have actually changed. Of the lawyers I am in contact with, I have not met one lawyer now who thinks they can have the same relationship and the same communication with somebody who is on videolink as if they are in the court with them.
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?
Penelope Gibbs: I am not opposed to online criminal conviction if we are talking about non-recordable offences and if sufficient, very rich information is put on the net. I have many more concerns about online indications of plea.
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?
Jenny Beck: It is a massive risk. The critical point is that those who are the most marginalised are the most affected. People who have difficulty understanding, people who have learning needs and people who have language difficulties are the most likely to be those facing the most difficulty. I can see a split in access to justice as a consequence. In the absence of really targeted lawyer intervention at very strategic points, including the introduction of early advice across the board for people, which would be a huge step in the right direction, from a qualified lawyer via legal aid, you can get into a situation where people will be pushed to the margins and miscarriages of justice will result.
Professor Susskind: I want to highlight something that is important in civil, family and tribunals, which is that the introduction of the online process is to be accompanied—this is crucial—by a highly simplified set of rules. That does not fully meet Jenny’s point, but I do not want people to think we are cutting and pasting the old rules online. The idea is that the system will be governed by a very simple set of explicit rules, a lot of which will be embedded within the system, so it will be intuitive and easy to use. There will always be the hard to reach, those who do not use technology comfortably, for example, and the Government have in mind some assistive technology services. I think we will need services for people who otherwise would find the process difficult, but for the lion’s share of people, who use Amazon daily or perhaps renew their tax online, the system should not be complex in the sense of its having a vast body of unintelligible rules.
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?
Professor Susskind: Again, we have to have a very clear distinction between virtual courts and online courts.
I am asking about online courts.
Professor Susskind: Okay. Online, my view is that we can make a system that is far more transparent. What we have in mind when we talk about open justice is that members of the public—anyone—can scrutinise the process, understand the results and view justice as it is being administered. When I speak to the judges who are involved in thinking through what the online process will be like, they are entirely happy. For example, in tribunals, an ongoing dialogue between the parties and the judges can be available online and scrutinised. The decisions will be made available online.
I want to challenge the assumption that is often made that you need physically to congregate in a courtroom for a service to be transparent. That is only really available to the public who live nearby. What we have in mind is an internet-based service that could be subject to scrutiny and visibility by anyone who has internet access. It would be a different kind of transparency, but it is transparency none the less, giving far wider access to the process.
Q 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.
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.
Richard Miller: We do not have any major problem with that, subject to the judge’s overall control to ensure that justice is being done in the individual case. On the concern about bail hearings in particular, it is not so much the defendant giving evidence as the whole series of interactions that have to happen during the hearing and whether it is practical to accommodate all that within a virtual hearing.
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?
Richard Miller: Yes, it probably would. We would obviously need to see the detail, but the main concern is to ensure that all those issues properly are taken into account.
Q I 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.
Richard Miller: I want to pose a challenge in response to that: how far has the technology actually available in the courts moved on from 2010 technology? The real issue is whether the courts actually have this up-to-date technology which, as you say, is leaps and bounds ahead of what was going on in 2010.
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?
Penelope Gibbs: I use Skype, FaceTime, everything, but still I think you will find in business, however much increase there is in the use of such things, that people will still get on planes and go halfway across the world to have a meeting with somebody. There is a consensus that seeing a person in reality, as we are in this room, makes a difference, in terms of the relationship, the body language and so on. So I would ask, is it truly necessary?
Here, I repeat that we are talking about very vulnerable people, who while they may be able to do FaceTime, certainly do not understand criminal law or the criminal justice system. They may be unrepresented, so while there may be extra barriers—they may have mental health problems, learning difficulties, et cetera—all these mean that even when they are in the court they struggle to understand what is going on and how to participate. If you put them at one remove, where they cannot talk to their lawyer—
Q Just to challenge you on that: they have to talk to their lawyer in a different way. This is different, is it not?
Penelope Gibbs: They have to talk to their lawyer, but I urge the Committee to go incognito into a court with a video link and watch what goes on, and then look at a court where you have the normal interaction with the lawyer and the client; you will see that it is different. Every lawyer, at the moment, says that it is far more difficult. Obviously, you talk to them beforehand, you talk to them afterwards—you go into a separate room or you clear the court or whatever—but there are various barriers with this.
As I say, we are talking about people who do not understand the criminal justice system and the law already. So I would say it is not ideal to be virtual, even if that person uses FaceTime the whole time with their friends. It is a different situation. We are talking about people’s liberty here, or whether they get a criminal record for life or whatever. These are huge decisions and people meet person to person on purpose for things that are far more minor.
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.
Penelope Gibbs: Can I distinguish the views and evidence about witnesses versus defendants? They are totally different parties with different dynamics going on. Obviously, the defendant has much more to face if they are found guilty. Yes, it is difficult for witnesses: I am not opposed to witnesses appearing virtually, because they are doing a different thing and it is a different role. Even so, we have very, very little evidence in the way of research.
On the 2010 report, it would have been great if the Ministry of Justice had updated that subsequent to 2010 and so on. With witnesses, what we do not know, because we have not done the research, is what impact this has on juries and on the process of the court case. I absolutely agree that it is probably, in most cases, a better experience for witnesses, but I am also concerned that we need urgently to do some research to see whether it has a negative impact on juries. With regard to pre-trial cross-examination of witnesses, where it is not live during the trial and the jury does not hear the witness live, again, this might be a good thing for the witness, but we really need to know whether it is going to have such a negative effect on juries that cases will collapse.
Q Richard Susskind, as the other side of this argument, if you like, how would you characterise the evidence for this working better?
Professor Susskind: When people say there is no evidence, I often say there is no evidence from the future: we have not actually introduced the kinds of system that many of us are anticipating. I suppose as policy makers, as politicians, what you are trying to do is make our country a better place and embrace technology where it is appropriate; I am not suggesting for a second that one introduces technology for the sake of it. All the signs, across so many corners of society, are that we can defeat problems of distance, overcome problems of excessive cost and make public services more accessible and more affordable by using a whole set of technologies.
I was not for a second suggesting that because you use FaceTime to chat, that means you should use FaceTime. I was simply making the point, and there is other research—this is not anecdotal; it is good empirical stuff—to suggest people would prefer to see their psychotherapists; people would prefer to see their doctors. People actually like some of the distance that the technology puts in place. A lot of assumptions are made that somehow the technology is putting people at one remove. In fact, people feel more relaxed.
I think there is sufficient evidence elsewhere to suggest that this is a proportionate way of resolving a great many of the disputes and problems that arise in a highly physical courts system—a system, incidentally, that is inaccessible for many millions of people who are disabled or who can attend only with great difficulty. It seems to me intuitive in the 21st century—I agree that we need to undertake research as we go along—that in a measured and controlled way, we introduce modern technologies as we are doing right across society. I cannot provide evidence from the future, but I can say that in so many other areas this seems to be a sensible direction of travel.
Jenny Beck: Could I make a very small observation from the coalface? I am also a practising lawyer. I use a lot of technology because I am a legal aid lawyer and, as a consequence of the advice deserts that have popped up all over the place because of cuts in funding, we often have to see people via FaceTime or take instructions over the telephone. It is absolutely a fact that the most vulnerable people find it less easy to access their justice via those mechanisms. I am not saying there is not a place for this, but it is a fact, in my experience, that that is the case.
Q 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.
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.
Professor Susskind: I accept that it cannot be polarised. You obviously invite people along who are likely to take a position, and my position is a position of change. I have been involved with this for 35 years, suggesting that technology should be used more in the court system. I cannot say for a second that anyone has ever been rushing in; it has been a very slow, arduous and sometimes painful process.
I travel the world, have spoken in more than 40 countries and visited courts. We are, in this country, falling behind other courts, so we cannot be accused of rushing in. I fully agree, however, that to jump ahead in a foolhardy way would be silly. I am simply pointing out, and will say again, that in the context of civil law the current system is inaccessible, unaffordable and unintelligible—full stop. It seems to me worth at least introducing some of these new procedures to offer access to people who would otherwise never have had it. I do not find that contentious; in fact, on civil, I do not think I have been hearing great opposition to it.
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?
Professor Susskind: Are we talking about the civil system or the criminal system? Because if we are talking about the civil system, I have to come back at you. You say that it is a very well established system, but my view is that it is a system that suffers from very serious difficulties.
The last research was shown to suggest that 1 million people every year have justiciable entitlements and do not, or cannot, pursue their rights in the civil justice system. We have vast numbers of litigants in person who really struggle to understand the system. If our system was great just now, I would be very hesitant about saying we should replace it with technology.
If this is taking a polar position, I am happy to take one—we have a civil justice system just now that is inaccessible for the overwhelming majority of citizens. I want to say to you that it is surely worth introducing, for some low-value claims, a new way of offering access to judges and then monitoring it very carefully—maybe that is the point you want a response on. I think it is vital that we do ongoing research. The point is well made that we need to understand the impact as we go along and we need be willing to change direction.
As for the evolution of technology in the private sector and the public sector, we are not architects. You cannot design the finished building and say, “Here is what it is going to look like.” It is a bit of a journey. If you are hesitant about starting the journey because we do not have the checks and balances in place—we need to have the checks in the place. I think you will find that most leaders, both in the public and private sector, have a sense of direction and say, “Let’s start this together, monitor carefully and ensure we are delivering the benefits.” It seems to me that the option of saying, “Let’s not change at all because we cannot be certain how it is going to unpack,” is not an attractive one. The discussion we should be having is how we ensure, with all these new technologies, that we are monitoring their impact, and that there is an appropriate hand on the tiller when it seems it is taking us in different directions.
Q Could you recommend what form that should take?
Professor Susskind: I am bound to say this, because in part I am an academic by background, but I think we need to move beyond anecdote. I can tell you what I heard in the court room that I visited—it was nothing like what was heard over here—but actually, what each of us says as individuals is less important than engaging serious researchers to undertake attitudinal surveys and surveys of people who have been through the process. That is the kind of work that we have seen someone like Hazel Genn at UCL doing over the decades—understanding why people go to the law, how they feel when they have been through the process and whether they have confidence in the system.
I have been strongly advocating, even for the civil system that I have recommended we introduce, that we should not rush in. We should think big, but start small. We should start small, monitor, evaluate, undertake serious academic empirical research, report back, invest where things seem promising and be prepared to accept if developments do not work out. We do not have the evidence yet so we have got to kick-start it somewhere. This, for me, is a call for an incremental—the technology would say an agile—modular step-by-step approach. If I was getting the sense that the Government were advocating a big bang—one single system, architect in advance—I would be very critical of that, but that is not the approach being taken.
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?
Polly Neate: It is hard to overstate how harmful it is, actually; it is genuinely traumatising. In particular, it makes it very difficult for the family courts to play the role they should play, which is to put the child’s best interests first, when usually the mother of the child is not able to advocate adequately because she is being questioned by somebody who has put her through abuse—sometimes, years of abuse.
The other thing that is really important to understand about this—this is what is worrying about judges’ understanding, if I may say so—is that domestic abuse is not all about incidents of physical violence; it is all about control, and coercive control. The family courts are being used, if you like, as an arena for perpetrators to continue to exert the control over their partner or former partner, and in particular they are using child contact proceedings as a way of continuing to exert that control.
So it is not only that the person might be overtly abusive towards the survivor in the court, although that happens unfortunately. It is also that there are like trigger words and almost code words that a perpetrator can use when talking to the victim, which will mean something to her that is extremely traumatic but to anyone listening it would not necessarily appear to be abusive, on the face of it. That is why we say that the practice just has to be banned, because as an onlooker you cannot necessarily tell the meaning of what is being said between those two people, particularly—this often happens—after years of abuse and coercive control of all kinds, and psychological control in particular.
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?
Polly Neate: Absolutely, the provisions in the Bill will help. As you know, we very warmly welcome the move that has been made; I think it will make a big difference. We work on this issue with quite a number of women who have been through this experience and their reaction to the news that this is coming in the Bill has been quite amazing; there has been a very big kind of welcoming from women themselves. That is really important.
The only bit where I think we really need to take care is the level of judicial discretion in the other cases. So, we know that where an alleged perpetrator has already been convicted or charged, or where there is an injunction in place, automatically they will not be able to cross-examine the witness—the victim. However, there are other cases that will rely on judicial discretion and I guess my concern with that is, as I said, the understanding of judges. Their understanding of domestic abuse is what they will have to draw on in order to use that discretion. Very often their understanding is simply extremely inadequate, to be completely frank—particularly their understanding of coercive control, which is the key issue here.
Either the ban on cross-examination has to apply whenever domestic abuse is alleged, which would be our preference, or it is really vital that training for judges is absolutely ensured, and also that there is much better access to special measures in protection as well, so that the whole family court estate and system can be much safer for survivors of domestic abuse.
Q I do not know whether you would like to say something about all of those issues.
Jenny Beck: Yes, please. I echo all the points that Polly has made. I am also a family practitioner, so I go to court a lot and specialise in domestic abuse work. Last week, I had a client who did not give evidence in the case concerning her children, because she was terrified of being cross-examined. I know that the applicant in that case deliberately was unrepresented in order to be able to cross-examine her. That is a hands-on example of exactly what is happening, which is that perpetrators are using the court process to effect further abuse on their victims. We all know that; it is commonplace. It is not a special trick; it is very well known, so this is a hugely welcome move in the right direction.
Equally, I would like to see a widening of the last provision for the other cases to make sure that the representation covers the victim cross-examining in those cases as well, because that is not quite as clear as it is in the first two clauses. The reciprocity is quite clear in the first two clauses, but in the other cases there is a concern because, although legal aid is still available for victims of domestic abuse, there are still people who are not able to get it, because they have not got the right gateway evidence or because they are excluded on the basis of means or unable to make a contribution. It would be a perverse situation if you found that the perpetrator were able to be represented and the victim were not.
Q Richard Miller, do you want to come in?
Richard Miller: We also very much support the proposals. One of the issues that has been of concern, but I think is understood, is that there is a lot of comparison with provisions in the criminal courts. However, in the criminal courts, the victim is a witness in the case who comes in and gives evidence and leaves, whereas in the family courts they are a party and there is interaction throughout the entire process. It means this is a different situation with more scope for harm to be caused to victims of domestic violence within the family courts. We would want to continue to have dialogue to ensure that as much protection as possible is given in those circumstances.
We have identified a couple of specific points that we want to think about a little further. For example, the first provision talks about instances where someone has been convicted or charged. We wonder whether that ought to cover instances where they have been cautioned for the offence as well. That is something that might be added in.
The other issue that has struck us is that this protection will apply not just to the victim but also potentially to other witnesses, such as a child of the family who has witnessed some of the alleged abuse. In that situation, the child could be called on behalf of either party and therefore the issue might not be strictly cross- examination. That may also need to be looked at to ensure that adequate protection is there for all the vulnerable witnesses we are trying to protect.
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?
Polly Neate: This is why in the other cases where there was judicial discretion, I said we should discuss any alleged perpetrator of domestic abuse, where there is an allegation. I cannot see the benefit in any situation of any perpetrator of abuse being able to use any court directly to question or cross-examine the victim or the children in the situation. Coercive control does not only exist between a couple; it is something that is deliberately exerted by one person on the other members of the family, which very often includes the children. I want to back up that point, which was very well made.
I can think of no reason other than cost for the idea that someone has to have his day in court. I think that notion needs to be done away with altogether. There is no circumstance where that could possibly be a good idea.
Q Jenny, I see you nodding. Do you share that view?
Jenny Beck: Yes. I would also add that it is in the interests of justice being done, of equality of arms and of ensuring that the system is fair. Any area where justice is not done because one person is unable to represent their case properly—it does not really matter which discipline it is—lacks fundamental natural justice. If we can do something to avoid that by putting measures in place to ensure that the evidence given is proper and robust, why would that not happen?
Q The point presumably is that the court should never become an instrument for the extension of coercive behaviour.
Jenny Beck: Exactly, although there are a couple of ways in which that happens; it is not just in the cross-examination of expert witnesses. Perpetrators also prolong cases and bring additional unnecessary litigation within family cases, but this is certainly a welcome move in the right direction.
Penelope Gibbs: I think this is an excellent initiative; it just brings a question mark for me. If the person is to have aid cross-examining throughout a family case, why should they not be legally aided in the first place? It seems to me that the Government will probably spend as much paying the lawyer for their interventions in helping cross-examine as they would if they legally aided the person.
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 Miller: Potentially. This issue is very much in the criminal sphere at the moment, because there is a proposal substantially to reduce the payments for advocates who carry out this role in the criminal courts. One concern is basically that the market will speak—if the rates are set at too low a level, you might find that lawyers are just not willing and able to undertake these cases. It is vital that whatever rates are agreed for this work are sufficient to enable advocates of suitable quality to conduct it. At the moment, we think that it is an issue of potential concern that we will not be in that position in the criminal courts if the proposals go through as currently suggested.
Q I have a question for the representative of Women’s Aid, then two questions on employment tribunals. 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?
Polly Neate: Absolutely. That is the kind of thing that I was referring to when I talked about the need to look at special measures as a backdrop to this. The court reform process now provides an important opportunity to improve the family courts’ ability to provide special measures. We believe that that should be a priority. Separate waiting areas are an obvious example. In the surveys that we have done of women who have been through the family courts and who are survivors of domestic violence, abuse within the court estate is incredibly common. Again, because of the coercive controlling nature of domestic abuse, sometimes it is not visible.
I will give you an example. I spoke to a woman who was in the same waiting room as her ex-partner throughout the whole time the case was going on, and any time she moved anywhere in the building, he would leap up and hold the door open for her as she walked through. To her, that was incredibly intimidating. He was constantly there whenever she went anywhere in the building. Anybody watching would not necessarily have seen that as abusive behaviour, but in fact, given the history of the relationship, it was extremely intimidating behaviour. If there had been separate waiting areas, it could not have happened—so, absolutely, it is very important.
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 Miller: The Law Society is well aware of the research showing the 70% reduction, and what is more significant about the figure is that there has been no change in the proportion of successful cases. That means that legitimate cases have been deterred in the same proportion as frivolous ones. We think that the evidence makes it crystal clear that a lot of people who previously would have had access to tribunals to get justice in employment disputes are now not getting it.
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?
Penelope Gibbs: I sat as a magistrate myself, so I am very much in favour of the use of lay judges in our justice system. It gives a different perspective from that of people who are part of the paid judiciary, of great quality though they are. I also have concerns about judgments made by people sitting alone. If you have two or three people discussing something, they can hear something, notice something, or bring a perspective that is very relevant to the decisions made, which is why we have benches of three magistrates. So I have huge concerns, and I also see it, I am afraid, as part of an ongoing diminution of lay justice, in that it is reducing or, potentially reducing, lay representation on tribunals while, at the same time, the number of lay magistrates has fallen by a third in the past eight years.
Richard Miller: From the point of view of the Law Society, when the proposal was originally consulted on, it was certainly read as suggesting there should be a default position of a single person deciding these cases, rather than the panel of three, and the Law Society was extremely concerned about that. It was particularly in the context of mental health tribunals and social security tribunals that we got very strong evidence from our members as to the benefits of the additional participants in the panel. It is something that has significant benefits across the board. Having it as a discretion for the senior president of tribunals is a much improved position from the idea of a default that there should be only a single person, but it is worth further thought as to whether it is extending the use of a single person panel further than is appropriate.
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?
Penelope Gibbs: The actual effect of this provision in terms of whether benches will be abolished is not quite clear. I would say if it becomes a situation where local benches of magistrates are abolished, that is a big problem. Already, there have been many amalgamations. Magistrates like to be part not only of their community geographically, but to be part of a community of magistrates. Therefore, even if we create a single justice area, I would say it is very important that benches remain, from the point of view of the morale of magistrates but also being able to communicate and have links to local agencies and people. Without benches, who is the local community supposed to go to when they want to interact with magistracy?
There are no further questions. I thank all the witnesses for their evidence and we will move on to the next panel.
Examination of Witnesses
James Dalton, Brett Dixon and Rob Townend gave evidence.
I welcome the next panel of witnesses. We will now hear oral evidence from the Association of British Insurers, the Association of Personal Injury Lawyers and Aviva. We have until 4.30 pm for the session. Please will the witnesses introduce themselves for the record?
Brett Dixon: Hello, I am Brett Dixon. I am the vice-president of the Association of Personal Injury Lawyers. We are a not-for-profit organisation that looks out for the interests of injured people.
Rob Townend: Hi, I am Rob Townend. I am the UK claims director for Aviva.
James Dalton: I am James Dalton, the director of general insurance policy for the Association of British Insurers.
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?
Rob Townend: The first part, yes, we have seen a reduction in road traffic accidents and an increase in injury claims. From our perspective, it is the easy access to cash that has created the problem. In terms of your tariff, I think that will go part way with the other parts of the solution to deal with the problem around whiplash in the UK. It is interesting if you look at places such as Germany, where injury claims have fallen in line with a reduction in road traffic accidents.
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?
Rob Townend: The insurance industry has been part of this in settling claims too quickly. Some of that has been an attempt to avoid ongoing costs. A whiplash claim can get anything from £1,500 to £4,000. It is quite difficult to diagnose whiplash, so the propensity for claims has increased over the last 10 to 15 years.
Q What do you put it down to? What is actually going on?
Rob Townend: I think it is claims farming, nuisance calls and people drawn to easy money. I think it is everything from “cash to crash” gangs to opportunists. Claims management companies are driving up claims and incentivising people to make claims.
Q What about you, Mr Dalton? Do you agree? Do you think the tariff system will help?
James Dalton: I think the way Mr Townend has articulated the problem is exactly right. The behaviours that he described are symptomatic of a system that has too much money in it and incentivises lawyers to farm claims and to push claims into the system for insurers to pay, which drives up the cost of car insurance for everyone.
In terms of the Government proposals in the legislation, the tariff system is an important mechanism to provide clarity to claimants about the amount of damages that they will receive. That is an important clear signal to claimants in terms of ensuring that they get some compensation for the injury that they have suffered.
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?
James Dalton: I am sure Mr Dixon will say that. He is being selective with the numbers he is using. There is absolutely no doubt that the number of whiplash claims has decreased. That is true—it is what the Compensation Recovery Unit statistics will tell you—but at the same time that the number of whiplash claims has gone down, the number of back injury claims has gone up significantly. Claimant lawyers re-labelling what is essentially the same injury as a back injury rather than a whiplash injury does not mean that the claim has gone away.
Q Well, Mr Dixon, are you going to tell us what I predicted, or do you disagree?
Brett Dixon: No, I was going to start by correcting something Mr Dalton said. It is not the claimant’s lawyer who enters the details for the Compensation Recovery Unit; it is the defendant’s representative. If they are being entered as back injuries, it is the defendant’s representative doing so. I am aware of that as a practitioner. The Government CRU statistics seem to me to be crucial to understanding this. If you look back—
Q Can you explain what it is, in case anybody here does not know? It is the DWP, isn’t it?
Brett Dixon: It is. If you have an injury claim, the defendant’s representative informs the DWP—the Compensation Recovery Unit—that a claim is being made. Then there is a mechanism for the Government to recover costs such as NHS costs or benefits paid because someone has been unable to work. It is important that the money from the person who has negligently caused harm finds its way back into the Government system, rather than the Government and the taxpayer footing the bill, but what is important about those statistics is the simple fact that they effectively record the number of claims that go through the whole court system as well as claims settled before the court system.
If you look back six years, you can see that the Government figures show a 41% decrease in this type of whiplash claim. If you look at it in terms of neck and back—there are different recording mechanisms; they are all available and there to be seen—there is an 11% decrease over a similar period. The ABI’s own statistics also show that since 2013, which is roughly after the last major set of reforms, the cost of dealing with these types of claim is down 12%. They are saving approximately £500 million per year. There is not an issue in terms of cost.
I would urge the Committee not to be taken in by the hyperbole prevalent in the sector and think how we as a society we would want to deal with someone who has been genuinely injured as a consequence of somebody else’s negligence. There should be consequences for wrongs, and insurance is there and takes a premium to cover people in those circumstances. If there are issues with people pursuing claims that are not genuine, that is a completely different thing for the Committee to look at. We should not impact on genuine people and the fabric of our society in an effort to deal with that problem.
Q So, Mr Townend, you are exaggerating the figures and these are genuine claims.
Rob Townend: There is a point around it being a choice for society—that is the one thing we agree with—whether people want to pay for these claims in their premiums; whether they want the ongoing nuisance calls; whether they want the fraudulent and opportunistic claims. We seem to think of this as victimless crime where people are not injured, but we have to defend our customers from spurious claims through the courts. We have had serious injuries and fatalities related to “cash for crash”.
In terms of the volume point, our volumes have been flat for the last three or four years. We still see significant variations between different areas of the country in terms of injury as a proportion of total claims. Somewhere like Exeter has 20% of road traffic accidents with an injury. If I go to Manchester, it is nearly two and a half times that. Why do they have weaker necks in Manchester than in Exeter? The road traffic accidents are no different, so that tells you the extent of the problem.
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.
Rob Townend: It is our commitment as an organisation. Most of you are aware of how the market works; it is a highly competitive motor market. There are a lot of underwriters and business providers. Whether claims costs increase or reduce, they typically flow through to our premiums.
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?
Rob Townend: I know others have. I do not know whether James knows more.
James Dalton: There are firms that, like Aviva, have committed to pass on the savings. As Rob said, the market is highly competitive. There are 97 businesses in the UK that write car insurance. If one firm fails to pass on the savings—that may happen—the premiums charged by that firm will be higher, so consumers will switch. There is a report out from the Competition and Markets Authority this morning that indicates that over 80% of consumers use a price comparison website each year to shop around for insurance. It is a highly competitive market, and the dynamics of that competition will ensure that savings are passed on to consumers.
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?
Brett Dixon: In my opinion, the Bill is a missed opportunity to deal with the real drivers of these types of claims, and that is claims management companies. I can see the argument that, in some respects, if you do not regulate claims management companies—which we would firmly support—and you do not ban pre-medical offers and cold calling, you are creating a circumstance where someone who does not have a genuine claim might see this as a one-way bet. By that I mean that you might be encouraged by a claims management company to make a claim. I am told that insurers make pre-med offers without any medical evidence and you can, in effect, make it up and not be able to be called to account, because you can stop before there is medical evidence. If you take rogue claims management companies out of the equation and ban this insurance-led practice of making pre-med offers then I think you deal with most of the problems in the sector that we are hoping to deal with through the Bill and maintain the position of the genuine claimant who wants access to justice.
Q I shall start with you, Mr Dalton. Obviously, the Government are keen to get a definition of whiplash in the Bill, and I think it will be key to this being successful that we get that definition right. Does the current framework definition hit all the right spots, or should we be looking at something else?
James Dalton: This is a critical point. Clause 61 defines whiplash: we have some significant concerns, which go to my earlier comment that the definition does not adequately include cover for back injuries: it includes neck and upper torso but does not include back. We think that is a really important part of the jigsaw that needs to be included within this legislative framework, so that you capture the right type of claims. The risk if you do not do that is that whiplash injuries will become back injuries and they are not covered by this legislation.
Rob Townend: I have the same answer, really. We do not want to see a loophole where back is excluded and you end up with two systems, one for neck and upper torso and one for back. It adds complexity and reduces the number of claims that are caught by the legislation by about 60%.
Brett Dixon: Clause 61, particularly clause 61(1), does contain provisions for further regulations. I think it is important to understand what is intended in the regulations and how that would interact with it. I sound one note of caution as a practitioner: it would be within the realms of a medic or a medical expert to define what whiplash is. If you were to ask a medic, or you were to ask a lawyer to give a go at what a medic would say, they would say it is soft tissue injury to the upper torso and neck that has been caused by hyperextension or hyperflexion. The mechanism is as important: some thought needs to be given to involving a medic in the way that regulations are drafted. That is the most important point.
Q What about the MedCo definition?
Brett Dixon: The MedCo definition is something of a work in progress in many respects. There is a definition there that has been imported into the civil procedure rules and this draws in part from it. Just because it exists in the civil procedure rules and is used for MedCo does not mean that this is either a good starting point or the way to go. This is an opportunity to define it properly by using and involving medics.
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?
Rob Townend: You will see displacement of claims from purely neck injuries to back injuries. The analysis we have done suggests that 60% of the claims that are currently wrapped under small soft tissue injuries will drop out. Without the displacement impact, where people will claim, I think it gives a loophole for fraudsters and I do not think it will help to reduce nuisance calls.
Any other thoughts?
James Dalton: No. I think the revised regulatory impact assessment from the Ministry will be extremely important for understanding the extent to which this definition will deliver the Government’s anticipated savings. Because I do not think it will, for the reasons I have already explained. So if we do stick with this definition, the regulatory impact assessment should show that.
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.
Rob Townend: Let me deal with the exclusion of back, which has the biggest impact in terms of how the definition is written. Having a tariff instead of removing damages in its totality has a smaller impact. I think our analysis—we can share it properly with the Committee—was £4 or £5. So the bigger impact is in the reduction of back. The second part of the question was—
It was around other impacts such as IPT rises.
Rob Townend: The environment around motor pricing at the moment is really dynamic. IPT has been going up and the discount rate has significant impact on premiums for larger injuries. Adding these together, the opportunity to offset premium increases with a reduction in the cost of whiplash claims would be beneficial to consumers.
James Dalton: We have been very public about our view that the decision to reduce the discount rate to the extent that it has been reduced is absurd. There is a very important need to reform the system and we look forward to seeing the Government’s consultation on that in due course. Inevitably that has already led to increased car insurance premiums and an increase in the insurance premium tax. This makes it even more important to progress these reforms in order that premiums will not go up as much as they would were you not to proceed with these changes.
It comes back to the society question: do you want to live in a society where you have a claims culture and compensation system that drives the sort of behaviours that Rob Townend was describing earlier. I think the answer that most consumers give to us is that they are sick and tired of the cold calling and the text messages. This is the system that drives them.
Q 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 cases?
Brett Dixon: I do not think there is any justification for it, to be perfectly frank with you. The use of a small claims track system is to identify those claims that somebody can deal with on their own, rather than it being about a monetary value. If you introduce changes to the small claims track at the same time as altering the court system to provide hearings at a distance—video evidence—you are going to make it incredibly difficult for a litigant in person to deal with and understand all those issues on their own.
Remember, the defendant who has paid an insurance premium has a right to call on those insurers to provide them with legal representation. I always think of it as being the person in the dentist’s chair on their own—that is what you would be as a litigant in person against well-represented opponents. I think that there is no justification, either monetarily as you have put it, or on the basis of the purpose of a small claims track.
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?
James Dalton: No, not really, because the ABI produces statistics which indicate the number of detected fraudulent motor claims each year. In 2015, the last year for which statistics are available, there was £800 million of detected insurance fraud and there were around 70,000 cases. However, I think the really important thing to think about in this context is whether the reforms are designed to address fraud. I think that they will help to address the fraud issues that you have articulated, but again it comes back to the societal question: do you want the text messaging, the spam calls and that type of environment, with the money in the system that drives those sorts of behaviours?
Q In how many of the 70,000 cases where you say fraud was detected were the frauds actually proven before the courts?
James Dalton: I do not have those statistics. Each insurer will decide whether they take further action; maybe Rob can explain how Aviva approaches it. Each insurer will make a decision as to how they deal with the case in question.
Q 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 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.
James Dalton: There are a number of tools at insurers’ disposal to address the type of cases that we have just been discussing. Whether insurers choose to use them is obviously a decision for them and, as I said, Rob might be able to explain what Aviva’s position is.
However, the Government have recognised that fraud is a big problem in insurance. They established an insurance fraud taskforce, which has reported and made a number of recommendations for reform. The Government have delivered. For example, there is now a fundamental dishonesty action that insurers can plead in court, so that those claims that are so flagrantly fraudulent are kicked out of the system. We need those tools and we are using them to get rid of fraud from the system.
Rob Townend: It is a good question; I will answer two questions together. We started defending claims at Aviva a couple of years ago. We stood back and said, “Look, we’re not going to back away quickly. We are going to trust the courts to support us,” and we took a defence excellence strategy on behalf of our customers. If they are saying, “There wasn’t anybody injured. I might have been liable, but the speed of the accident didn’t cause injury,” we have been defending our customers through the courts for the last couple of years. I think we have put 1,700 through the courts; we have a success rate of something like 70%. More recently, we have had great success with fundamental dishonesty and the judges are generally starting to support us. I think we have had 174 cases where we have had fundamental dishonesty.
If we go to the other gentleman’s comment about fraud, we do not pay one in 10 of our whiplash claims. Some of that disappears when we challenge it. I invest millions of pounds in investigation analytics capability technology and we will challenge plaintiffs at the first point where we think the claim is linked to a gang and is spurious. We do not pay one in 10 of our whiplash claims at Aviva.
Q Does Mr Dixon wish to comment?
Brett Dixon: Yes, I would—thank you.
In some respects, the debate has moved on from fraud and low-velocity impact. That is because of the provisions that were enacted in relation to fundamental dishonesty, which are in the civil procedure rules at rule 44.16 and in section 57 of the Criminal Justice and Courts Act 2015.
If a defendant thinks that there is fundamental dishonesty involved in a claim, they have two opportunities to challenge it. They can challenge it at the conclusion of a case, when the case is unsuccessful, and then seek their costs. They can also challenge a case if it is successful but there is a question mark over what has been claimed, and that can lead to a claimant losing all of their damages and to a cost order as well. There are sufficient drivers in the system and levers that can be pulled to discourage any type of claim like that.
It is important, though, to understand this in context. First, the most important thing is to consider proven fraud. I see in practice, from different members of our organisation, many allegations of fraud or fundamental dishonesty that are not made out when tested by the court. You only need to look at a recent Court of Appeal decision by Lord Justice Briggs in Qader & Ors v. Esure Services Limited to see that there is a developing gaming of the system by insurers to prevent people from being able to challenge those cases properly. That case was about trying to prevent a claimant from having access to the same tools to fight the allegations as a defendant has to bring them.
There was an implicit recognition from the Court of Appeal in that judgment that it is important that a person who is accused of something like that has the ability and resources to answer it. It is a serious issue for somebody accused of it and it is about what is proven fraud, rather than vague statistics of about 70,000 cases, where we are not quite sure whether it is fraud, detected fraud or suspicion of fraud and what standard that is at. It is for the judiciary to decide if that is an issue and, if it is found to be an issue, that person should be dealt with. Equally, if you are going to have access to justice and equal rights on a level playing field, they need the ability to challenge it in appropriate circumstances.
Q 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 that?
Rob Townend: I spoke a bit about it earlier: it is encouraging you to make a claim so they can access the cash. The referral fee ban that was put in LASPO obviously is not working. There are marketing fees available for people to attract you to make a claim. I agree with Mr Dixon and his earlier comment about regulation of claims management companies. Insurers and lawyers are heavily regulated; I would still like to see more regulation of the legal fraternity by the Solicitors Regulation Authority. The regulation around CMCs has been pushed back, I understand, to 2019. The referral fee ban has not worked. There is too much money still in the system and they will keep pestering. We know that. We have got a lot of examples where vulnerable customers are being contacted repetitively, like you were, until they make a claim.
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?
James Dalton: The referral fee ban is widely regarded as being relatively ineffective. The mechanism you have articulated is one of the ways people have chosen to get around that ban, including insurance companies and law firms, I would emphasise. That problem is addressed substantially by the reforms in this legislation, because what they do is take that money out of the system and, therefore, take out the incentive to try and circumvent a referral fee ban.
Q Mr Dixon, do you want to add at all to that before I move on?
Brett Dixon: I will with an anecdote, more than anything else. I shared a similar experience to you where I had vehicle damage. I was not in the vehicle. It was in a supermarket car park and an older gentleman was kind enough to leave his details. I was pestered by my insurance company. I was even asked, “Are you sure you weren’t in the vehicle?” Take that on board.
If you have damage to your vehicle—your car that is insured—the first organisation that has access to knowledge that you have had an accident is the insurance company. They take referral fees for work—I am aware of that practice—and they also make a profit from referring such cases on. You only need to look at some of the reports that they make as part of the stock market requirements in relation to that.
Generally, if you take claims management companies out of the equation, you will remove one of the drivers. If you look at banning the practice of insurance companies and claims management companies referring work on, you go some way towards doing that as well. If you ban cold calls, for which the Association of Personal Injury Lawyers has been campaigning for some time, you remove the possibility of what I call the one-way bet and you are focusing then on the real problem, rather than on the genuinely injured person.
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.
Brett Dixon: It is the one-way bet analogy. If you then compound the problem by allowing an insured defendant to make an offer to somebody without seeing medical evidence, where are the checks and balances in the system? Bear in mind that a claims management company may be dealing with that, rather than a lawyer or a solicitor at that point. If you remove those two levers, those two drivers—the cold calling and the effect of a claims management company encouraging somebody to make it, and an insurance company then making pre-med offers without evidence of the actual injury—then you can deal with a lot of the problems that are inherent in the sector.
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.
Rob Townend: Yes; I am one of the insurers who has been defending despite the costs.
Q When you defend a claim and win, do you lose money?
Rob Townend: It depends on whether we then go for a costs order. We will try to if we think we will be successful in that. What is really interesting is that, in the model I operate, the only person I am paying as a result of an injury claim is the party who has been injured and their lawyer. How the CMC gets remunerated for that introduction, I do not really know. The only person I am paying cash to is the plaintiff and their lawyer.
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?
Brett Dixon: We do not recommend that any of our members interact with CMCs.
Q They clearly do, otherwise CMCs would not exist.
Brett Dixon: We have a large membership but it is not all people who practise in the area. There may be areas where they are not APIL members where that practice goes on. To go back to your earlier point about the qualified one-way cost shifting and the effect of it, qualified one-way cost shifting was brought in to replace the after-the-event insurance policy, which was something insurance companies were making money out of.
Now, if a claim is not successful, then there are exceptions to the qualified one-way cost shifting rule. Take the example of the one-way bet, where someone has not actually had an accident. There would be two different provisions in the civil procedure rules whereby a defendant could get their costs paid. There would be fundamental dishonesty, and there would also be the fact that the claim would be struck out for being no cause of action, or an abuse of process. If there was no actual accident, then it is not a viable claim. It would be an abuse of process.
If the claim was successful, there is a provision in section 57 of the Act for them to recover in circumstances where there is a taint of fraud in relation to a fundamental, or large, part of the claim. If a defendant challenges a claim where there is evidence of fundamental dishonesty, or it is based on a one-way bet, there is a mechanism for them to be paid. It is a mechanism that is being used and, like any provision that you introduce into the civil procedure rules, the mechanism takes time for the courts to interpret and to bed in. However, there have been quite a lot of cases—at county court level, High Court level and some in the Court of Appeal—that are starting to shape how that works. The fundamental point is that, in those circumstances, there is a mechanism for a defendant to be paid for the costs they have incurred.
The final point you made was about the cost being two or three times the likely damages. If it is for a whiplash claim that is in the fast track, then that is fixed cost, so you will not get two or three times the damages. The only circumstances in which you would are if you have made a part 36 offer to the defendant and then gone on to do better than it. In other words, you offered to settle at an early stage and that offer was ignored. That is there to promote settlement between the parties and save court time.
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?
Rob Townend: From our perspective, absolutely. We would like to see a pre-med offer ban. In Aviva, we do not make any offers without a medical—again a decision we made—
Q You are unusual in doing that, are you not?
Rob Townend: Yes, we are pretty unusual doing that. We looked at the overall system and said, “We do not want to feed it”. We wanted to make sure we have medical evidence around the settlements we make, and that we then follow through and defend those if we think the injury is not in line with either the accident—
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?
Rob Townend: Yes, I think: do not pay a claim without medical evidence, whether that is a motor accident or a liability claim in the commercial courts.
Goodness me, there we are! A further usual outbreak of unanimity.
Rob Townend: There is one point to go back to. Do not end with a system with your current definition of whiplash that excludes back because, unless you do that, you will have no pre-med offers—
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.
James Dalton: Absolutely correct. I repeat the point I made earlier: getting the definition right is absolutely critical to ensuring the success of this legislation, in terms of delivering the outcome that the Government have articulated that they want to achieve. At the moment, I am concerned that by excluding back you will see a surge in back claims that are not covered by this legislation.
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?
James Dalton: I think you said earlier that Aviva’s figures suggest that 60% of the claims are probably going to be excluded, so take away 60% of £1 billion.
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.
James Dalton: The decision to reduce the discount rate by 325 basis points has imposed substantial costs on the insurance industry. By “substantial”, I mean to the tune of about £6 billion. That is about 60% of the annual claims cost of motor claims. That cost simply cannot be absorbed; it must be passed on to consumers. Premiums will inevitably rise as a result.
A number of firms have indicated in the public domain that that is the case. The Government need to put out the consultation they said they would produce so people can address the principles underpinning how a rate is set. At the moment, it is linked to Government bonds. No one goes and buys Government bonds. It makes assumptions that 100% of a claimant’s damages are invested in one asset class. No rational investor would do that. So the fundamental underpinnings of how the discount rate are set are fundamentally wrong, and we need to address that.
Q In the absence of any change, what is your assessment of the percentage impact on the average car insurance premium in this country?
James Dalton: It will go up significantly. I think the impact on young drivers is going to be particularly bad, because those are the customers who are most likely to have catastrophic injuries. It is estimated that their premiums could increase by £1,000.
Rob Townend: I will not say a lot that differs from what Mr Dalton has said. We have got to sort out the methodology for setting out the discount rate, because I think nobody would say that it fits the current world, either from an investment return point of view or from the point of view of looking after those who are seriously injured.
The fact that there are so many variations of the potential solution that the Lord Chancellor could have chosen tells you that the mechanism does not work. At the moment, while the consultation is happening, there is a world of uncertainty around what will happen in the future. I think it is in everybody’s interest to get clarity around a longer-term rate that can be as formulaic as possible and looks after the long-term interests of those who are seriously injured while looking at the longer-term investment returns that lump-sum payments can achieve. We just plead that the consultation is got on with quickly. We would love to see the piece of legislation that it could be put into.
Brett Dixon: It is important to understand that you are dealing with issues at two ends of a different spectrum. You are talking about a whiplash claim, and in the same breath, in terms of the discount rate, you are talking about the catastrophically injured person. The important point in relation to that is that, first, the insurers have known for some time that this change was coming. It was long overdue. For a number of years they have made provisions in their own accounts for this, so to suggest that this has come like a bolt out of the blue is disingenuous.
Secondly, the changes are to ensure that a seriously injured person has sufficient moneys available to make provision for their future needs because of somebody’s negligent act. A lot of it is about care. If you are not making sure the person who did the damage is paying via their insurance policy, it will be the NHS and the taxpayer who ultimately have to foot the bill to look after that seriously injured person. What you will not change by changing the mechanism for the discount rate is the fact that that person is seriously injured and needs that care. It is right for society that the person who did the damage should foot the bill, not the taxpayer.
Insurers knew this was coming. I hear a lot of talk about how you cannot buy Government gilts. Because of the mechanism chosen in the Damages Act 1996, the person who is investing their money does so on the basis that they are taking a no-risk investment. That is why that is there. There are no other no-risk investments available. If you want a judge to calculate damages, he has to have a methodology and a starting point.
James Dalton: No one is arguing about whether these claimants need the support that an insurance company is going to provide. No one is saying that these people should get less money. What we are saying is that the formula for setting the rate, which is now 20 years old, needs to be updated to take into account the fact that it is linked to Government bonds and assumes 100% compensation. These things do not just happen in practice.
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?
Brett Dixon: I agree entirely. The Lord Chancellor made the decision that she was legally required to make. She was exercising a quasi-judicial function when we made the reforms, introduced the Supreme Court and made other changes. That role was retained by the Lord Chancellor, even though setting damages is properly a judicial function.
James Dalton: I do not agree. The Government undertook consultation exercises in 2012 and 2013 specifically asking questions around whether the regulatory framework for setting the discount rate was right. Indeed, there is going to be a consultation now asking similar questions. To me, that suggests that the Government do not think that the framework is right. In that context, it also suggests that the decision that the Lord Chancellor has decided to take, based on legal advice, is questionable. I do not think that the way that she has taken that decision is right.
If there are no further questions, may I thank the witnesses for their evidence and invite the Government Whip to propose the adjournment?
Ordered, That further consideration be now adjourned. —(Guy Opperman.)
Adjourned till Wednesday 29 March at twenty-five past Nine o’clock.
Written evidence reported to the House
PCB 01 Association of Personal Injury Lawyers (APIL)
PCB 02 Arthur Michael Robinson, Director and Solicitor, Emmersons Solicitors Limited
PCB 03 The Law Society
PCB 04 Prison Officers Association (POA)
PCB 05 Royal College of Psychiatrists