Oral evidence: Pre-legislative scrutiny of the draft Victims Bill, HC 304
Tuesday 28 June 2022
Ordered by the House of Commons to be published on 28 June 2022.
Members present: Sir Robert Neill (Chair); Angela Crawley; James Daly; Maria Eagle; Laura Farris; Dr Kieran Mullan; Karl Turner.
Questions 161 - 306
I: Baljit Ubhey, Director of Strategy and Policy, Crown Prosecution Service; Jan Lamping, Chief Crown Prosecutor for Yorkshire and Humberside, Crown Prosecution Service; Mark Fenhalls QC, Chair, Bar Council; and Tyrone Steele, Criminal Justice Lawyer, JUSTICE.
II: Victoria Atkins MP, Minister of State for Justice, Ministry of Justice; Tom Pursglove MP, Minister for Justice and Tackling Illegal Migration, Ministry of Justice; and Amy Randall, Director for Victims and Vulnerability Policy, Ministry of Justice.
Witnesses: Baljit Ubhey, Jan Lamping, Mark Fenhalls QC and Tyrone Steele.
Chair: Welcome to this session of the Justice Committee. This is our final evidence session on the pre-legislative scrutiny of the draft Victims Bill. Welcome to our witnesses.
Before I come to you, we have to go through our declarations of interest, which we have to do at the start of every meeting. I am a non-practising barrister. Let us go down the line.
Karl Turner: I am a non-practising barrister.
Maria Eagle: I am a non-practising solicitor, Chair.
Laura Farris: I am a non-practising barrister.
James Daly: I am a practising solicitor and partner in a firm of solicitors.
Q161 Chair: Let us move on to our witnesses. Shall we start from the left-hand side?
Baljit Ubhey: I am Baljit Ubhey. I am the director of strategy and policy at the Crown Prosecution Office.
Jan Lamping: I am Jan Lamping. I am the chief crown prosecutor for CPS Yorkshire and Humberside.
Mark Fenhalls: My name is Mark Fenhalls. I am the chair of the Bar of England and Wales.
Tyrone Steele: I am a criminal justice lawyer at JUSTICE, an all-party law reform and human rights organisation.
Q162 Chair: It is very good to see you. Let me start with something that is not directly in the Bill, but it has been suggested might impact the Bill. That is another piece of legislation—the Bill of Rights—introduced last week into the Commons; we have seen its text now. The Victims’ Commissioner, Dame Vera Baird, gave evidence to us last week and raised this area of concern. The Bill of Rights might have an impact of diminution on victims’ rights. She drew the example of the Worboys parole case, where the victims of Worboys had used their convention rights to a full and proper investigation to take action against the police in relation to that.
I accept it is early days, but do you have a view from your reading of it so far whether the Bill is likely to have any impact on the victims’ rights situation and what is proposed in the draft Victims Bill? Who wants to start?
Baljit Ubhey: From the CPS perspective, it is really early days and it is something that we are still digesting. We are not in a position to comment.
Q163 Chair: Mr Fenhalls, maybe the Bar Council has had a look at it.
Mark Fenhalls: It is a good example of how the proposed Bill of Rights should be given very careful scrutiny. It is a pity that so much of what is, in essence, an immigration problem has been conflated with a human rights problem. Within this building, this Committee above all will know that the rights encapsulated within the Human Rights Act and the convention apply to all of our lives in every manifestation and we change them at great risk. If we change them too much, there may be the kind of collateral impact you heard about last week; there may not be.
Could I urge the House generally to reflect on those issues and think about them with all your constituents—human rights are much more than just an immigration issue—and to separate those? We would all be very well served by having a more balanced debate about the effect that would have for legal education generally, the way people understand their rights in this country and so on.
Q164 Chair: Thank you. Mr Steele, do you have any thoughts?
Tyrone Steele: Yes. JUSTICE’s view is that the Human Rights Act is a very finely crafted, delicately balanced piece of legislation. Repealing and replacing it in this manner is wholly inappropriate, unevidenced and unsupported by the independent review that took place beforehand.
Vera’s point, in particular, was on—
Q165 Chair: I am interested for today’s purposes on the Victims Bill.
Tyrone Steele: Yes. So, in particular on positive obligations, that is at clause 5 of the Bill of Rights. This is going to have incredibly damaging impacts on victims and their rights. It is a shame that this provision is not subject to pre-legislative scrutiny as we are doing for this Bill.
Vera was talking, in particular, about positive obligations in clause 5. Clause 5, in essence, will have pre-commencement positive obligations—those currently existing under the law—and a prohibition on post-commencement positive obligations. The courts are forbidden from creating new ones, in essence.
To give a flavour of what are some pre-commencement positive obligations that the Bill wants to circumscribe, these include the case of DSD, as Vera noted, the John Worboys case. There are also many others. You have the example of an article 2 right for proper operational security systems from the Kianna case. You have another case from 2001 with respect to article 3 around the failure of the state to look after a child who should have been brought into care. All of those rights were created through positive obligations from a requirement to get the state to do something.
In particular, one aspect that is going to be very damaging to victims is a provision within the Bill of Rights that would require the courts to take note of whether or not an individual has been involved in criminality. A factor that needs to be taken into account is whether the police are obliged to do something or not do something.
The Committee will be well aware that many victims may have had a brush with the law; that is absolutely true. However, that does not mean that the state should not be required to warn them if there is a risk to their life; they are still a human at the end of the day.
In addition, you might also have scenarios where you have female victims involved in criminal enterprises; maybe they are abused themselves. You can have a dual status of being both a victim and potentially a participant in crime. The police would be under no obligation to help them if the Bill were to pass.
Those are some of the really dangerous consequences that could flow.
Q166 Chair: Your last comments relate to the so-called Osman cases. Do you draw a distinction between the point you make that the victim may be a victim of a sexual offence, who may themselves perhaps have a minor conviction for dishonesty or drugs on the one hand, and a situation that has been raised as a concern by some police forces, that if you took the right to warn to its fullest extent you might be tipping off one set of gangsters that another set of gangsters was after them for some purpose? Do you draw a distinction there?
Tyrone Steele: The case of Osman—the right to life warnings—is one that the Government have pointed to in the consultation. The fact is that it is not really based on that much evidence. The point the Government will make is that this is burdensome for the police or it is operationally impractical. If you go to the Strasbourg case, the court is explicit that operational priorities—the ability for the police to operate in the round—have to be a factor when considering the operation of those warnings.
Q167 Chair: You are saying it is less of a burden then.
Tyrone Steele: Yes.
Chair: That is very helpful. Laura, do you want to come in on this?
Q168 Laura Farris: Can I just pick up on the Worboys case? There is an important question that comes out of that case. Would the claimants in that case have been without remedy had they not had recourse to the Human Rights Act? Would there have been an alternative course of action?
Chair: Do you have any observations on that?
Mark Fenhalls: The answer is that it is difficult to go back and look at the counterfactual.
Laura Farris: Yes.
Mark Fenhalls: Without it at all, it could be that our courts have an equivalent set of rights that could be enforced; one does not know. The other way of looking at it is that changing something that may not be as broken as some think it is, with unintended consequences, is not necessarily wise. It may be politically attractive to some, but it does not mean that the lives of people in this country will get better.
Chair: That is helpful. I appreciate that these are preliminary observations but it is useful to have that as we debate these Bills. Perhaps we could return to the draft Victims Bill itself.
Q169 James Daly: Ms Lamping, in terms of the definition of a victim within this Bill, could I refer this to something we have been talking about in the House today—rape allegations?
I read here that the definition of a victim means, “A person who has suffered harm as a direct result of being subjected to or witnessing criminal conduct.” There is a little bit more to it than that. When we are in a situation where—you must tell me if I am wrong—90% or certainly well into 80% of rape allegations are not even referred to the Crown Prosecution Service, I am struggling to understand whether a victim is somebody who is the victim of someone charged with a criminal offence, or is a victim somebody who has reported an allegation to the police?
Jan Lamping: My understanding is that a victim is somebody who has reported an allegation to the police. It does not have to involve somebody having being charged.
Q170 James Daly: That is quite interesting. I am sure you are correct in respect of that. If we are classing people as victims, what is the impact on the charging standard and the interaction between the police and the Crown Prosecution Service? There is a curious issue that, under this legislation, the state could view somebody who makes an allegation of rape—I will use that as an example; it could be any number of offences—as a victim who never even sees their case referred to the Crown Prosecution Service. Would you agree with that interpretation?
Jan Lamping: That must be right.
Q171 James Daly: Can anybody else comment on that?
Baljit Ubhey: There are a couple of other observations we would like to make on the definition of victim, if we may.
Chair: Yes, do by all means. Of course, please do.
Baljit Ubhey: First of all, from a CPS perspective, we very much welcome the focus on victims’ experiences in the criminal justice system. We absolutely think it is right that the criminal justice system should empower and not demoralise victims of crime. Certainly, from a CPS perspective, we absolutely take that responsibility really seriously.
In terms of the definition, it is fair to say—and you have heard this from other witnesses—it is not aligned to the definition in the victims code. Certainly, bereaved families are excluded at the moment. We think that that is an omission. We, in the CPS, have an enhanced service and a specific policy to deal with families of bereaved victims. So we think that is an important omission at the moment.
The other area, as far as the definition is concerned, that is important to point out—again this has been touched on—is children. The way the Bill is currently drafted, it rather indirectly addresses that issue by talking about witnesses who “suffer harm”. Again, the code is more explicit in how it captures provision for children. There might be some unintended consequences of having that definition because it could capture all sorts of things. It could capture someone who witnesses in public a minor public order offence. There is almost a danger that the indirect approach widens the scope in an unhelpful way, which is an unintended consequence.
Q172 James Daly: I am sorry to interrupt, but I think this is a really important point. This is a hugely significant point, especially in respect of rape allegations. What this Bill does is class somebody as a victim in the terms that we have set. It is a policy and aim shared by all political parties in this place to try to drive up the amount of people charged with offences such as that.
What are the consequence of end-to-end services for people who have been told by the Crown Prosecution Service that there is not enough evidence for a charge to result from the very heartfelt evidence and the experiences they have been through? It seems bizarre to me. Am I wrong? You tell me if I am wrong.
Mark Fenhalls: Clause 4 makes it perfectly plain what the intention appears to be. In determining whether a person is a victim for the purposes of the Act by virtue of any criminal conduct, it is immaterial that no person has been charged with or convicted of an offence in respect of the conduct.
Q173 James Daly: That is the point I am—
Mark Fenhalls: That is the first point; yes, I am agreeing with you. The second is that you can be a victim if you are a witness under this definition, it would appear, from subsection (1). If you could claim that you are suffering direct harm, having witnessed something going on, the answer to your question, if I may say so, is that it creates a potentially huge burden on the state. It would be right to do it because of the breadth of the statute. So, if it is right to do it, this House has to take responsibility for the resources that will be needed in order to give effect to it. If you make it really broad and you do not deliver the resources, it becomes meaningless. If it creates a tension between the prosecuting authorities and what people think their rights are under this, it undermines public confidence.
Q174 James Daly: My final question is this, and let me rephrase it this way. One of the things that we want to see happen is more people charged with rape. That is a nuanced question. It is about a fair charging system, so I am not saying it is a blanket thing.
What I am looking at and thinking is how the Victims Bill assists the CPS, or how do you foresee it assisting the CPS, in leading to more charges? Does this end-to-end service and the duties within it help to get the CPS and the police into a position to get more people charged?
Baljit Ubhey: The Bill is not addressing the issue of increasing the number of cases that are charged for rape; that is not a specific policy objective. Where we have victims of rape, it is about looking at how the experience they have through the system is improved.
One of the challenges is that at the moment it is fairly high level in terms of principles. I do think the devil is in the detail. However, increasing more cases coming into the system is about a lot of joint work between the police and the CPS, which in fact we are doing and it is having an impact.
Q175 James Daly: It would be an interesting question if you said to somebody who has had the bravery to come forward, “You’re a victim but we don’t accept your evidence. We don’t believe there is sufficient evidence.” That is not how, traditionally, you would view a victim. A victim is somebody to whom, as a matter of statement, as a matter of calling them a victim, something has happened. All I would say in respect of that is it causes a real inconsistency between how people will be treated and how they may feel coming into the justice system. Or am I wrong in respect of that?
Baljit Ubhey: When we look at cases, we will take those cases seriously. We will not be perceiving this Bill in that way. What I cannot speak for is what impact it would have on individuals.
James Daly: Thank you, Chair.
Q176 Chair: Mr Fenhalls.
Mark Fenhalls: I do not believe, Mr Daly, you are wrong. There is a real risk of the things you mentioned. Throughout this field, we have all got to be very careful about managing expectations. We all have to fight to bring up charging rates and get more cases through the court; we all agree in relation to that. However, we do not help anybody if we overinflate expectations too quickly.
Q177 Laura Farris: Is there a problem with the title of the Bill—calling it a Victims Bill if the person has not yet proved their case? Would it be better—I know it is not attractive—for there to be a Complainants Bill as in procedures and a code of practice that will set out what you can reasonably expect in your experience through the criminal justice system, without using an emotive word like victim? It may be the case at the absolute other end that you do not prove your case at all.
Mark Fenhalls: I respectfully entirely agree. In every conversation I have ever tried to have on this, with everybody, including the Victims’ Commissioner, everybody always uses the word “complainant”. I understand why it is not politically attractive and why people use this word, but it does not help manage expectations and it can damage public confidence.
Q178 Laura Farris: It could give rise to a sense of grievance if the CPS does not end up taking your case forward. You have been identified as a victim and you have been treated in a certain way because you have been afforded a status that you might not have in law.
Mark Fenhalls: Exactly.
Q179 Chair: It is awkward because you can have a situation, I suppose, where you could have someone who is a victim and you are never able to bring charges. Let us take the hit-and-run driver and you never find the driver. Manifestly, there has been a crime committed and they are a victim of crime; maybe that is one thing. On the other hand—it tends to be sexual offences but it could be others—where the evidence of the crime depends on what is said by the complainant, that creates a slightly more awkward situation. You are still obliged to treat them as a victim, even though you may conclude that you cannot take it forward. That is very helpful.
Mr Steele, do you have any thoughts on that?
Tyrone Steele: The only thing I would add is that I agree that the definition of victim that is contained within the Bill should be aligned, at least as a bare minimum, to what we already have in the code. It is what we understand the definition to be, so that is an alignment that could take place there.
On the point around using the term “victim”, it is important to bear in mind the point that for a lot of victims charging decisions might not happen, but also more broadly a lot of victims do not report crimes in the first place. Some do not want to engage with the criminal justice system; some do not have confidence in it. But they still may have trauma or residual needs to be addressed.
Looking at this just as a criminal justice process or solution is wrong and it should be broadened out to other wider needs, such as mental health provision or other healthcare issues, which should be considered in the round.
Q180 Chair: That plays to Mr Fenhalls’s point about resources, does it not?.
Tyrone Steele: Exactly.
Q181 Chair: It has been suggested that there should be a duty to keep victims informed of progress of these things. From the CPS end, would you be able to quantify what the likely additional resource might be?
Baljit Ubhey: In terms of keeping victims informed and some of the other principles in clause 2 of the Bill, we support the principles of informing, supporting, having the victims’ voice heard and challenging. We have the victims’ right to review, and Jan can speak in more detail about that if you have questions on that.
As for keeping the victim informed, we did some research. We recognise at the CPS that we have more work to do here; we absolutely get that. We are open and transparent about that. On the back of some of the inspection reports we have had, which have said that our communication needs to improve, we did an in-depth piece of work looking at how we are engaging with victims. It did find a few key issues.
One was that people do not understand the role of the CPS and the different players in the system. That can cause frustration and confusion. There was definitely a sense that one size does not fit all. That is a very important point I would like to land today. Sometimes, we leap to a solution that does not work for everyone, and I can say more about that.
There is definitely something in that keeping informed. Once there is a not guilty plea and a case is going to trial, the communication is really important. Then there is something about how we work together, and again this is pertinent to other aspects in the Bill around compliance.
Baljit Ubhey: There are things that we have agreed we will do, and we are really keen. It is almost serendipitous that we have done this work at a time when this Bill is going through. We need more detail on what the code will look like and we want that to be an evidence-based approach. We are keen that the work we have done influences that.
We want to improve our communications to all victims. What that means is that we can look at technology; we can find ways of keeping victims informed. The feedback is that, even if nothing is happening, sometimes an email should be sent saying, “Nothing’s happening at the moment but we will keep you posted.”
There should definitely be an enhanced service for those with the greatest need. Our research found that that is probably predicated on the more serious the offence but also the circumstances of the victim. A good starting point might be looking at protected characteristics. Then you would want to dig a bit deeper, because, again, what we found is that some people wanted to hear from a prosecutor but some did not. Some wanted to hear from an IDVA or an ISVA. It is not just about, “Let’s have meetings with prosecutors in every case,” because that is not what victims want. There is a point about an individual service, which is more practical as well, because there is something about the resourcing challenges of some of that.
What we are also going to do, particularly looking at rape victims, is think about piloting and innovating different ways of engaging with victims. That is a priority for us because we recognise the unique challenges that rape victims face, especially if they have to give evidence. We are doing some work around that. We recognise, in order to give all of this a real impact, that we have to look at our organisational culture.
We are up for engaging more with victims and keeping them informed, but how we do it needs to be done thoughtfully.
Chair: Understood. There is quite a bit to get through, so we will need to give other people time to speak. Did you want to come in briefly on that point, Angela, and then we will move on to Maria?
Q182 Angela Crawley: Thank you, Chair. On that specific point, what you are speaking about is a far more tailored service. In an ideal world of public policy, there would be infinite amounts of money, but there simply isn’t. What, in your opinion, is the gold standard of what could be delivered and what is practical? I guess the title of this Bill is somewhat misleading, so what is the reality of what we can achieve from a Bill of this nature?
Baljit Ubhey: That is what we need to work through. One of the principles is being really up front and honest about whatever processes or changes we make; that we understand the resourcing for the whole system; and it is honestly and thoughtfully done. The worst thing we can do is make promises and not deliver on those promises.
The work we are doing in the Crown Prosecution Service is about looking at our processes and testing different models. We will cost those models and then we will think about what we can afford to roll out and what we can do. We might be able to say that we have found a way of working across the system that is really efficient. Can that inform future resourcing strategies? But there has to be that honesty and integrity around what we can resource, delivering that service alongside the culture shift as well as exploiting technology, which does bring efficiencies.
Q183 Angela Crawley: Is the legislation leading the agenda not practical?
Mark Fenhalls: If I might say something in support of the CPS, my experience of people when prosecuting cases is that they want one person whom they have dealt with from the beginning.
Mark Fenhalls: Usually it is best placed to be a police officer, and a family liaison officer in murder cases is the gold standard. If that person stays with them to the end of the process, that generally leaves the highest satisfaction.
Whatever else is done, I would be very reluctant, as a member of the public, to see CPS lawyers required to do this. There is not enough time and energy in the day for them to make the charging decisions they need to make. All the procedural things that can be done could be done by properly trained police officers, properly trained civilians, IDVAs or ISVAs, or non-lawyers, with a view to communicating, getting it right and giving the level of public satisfaction that we all want to see.
Chair: I can see nods around all of that.
Q184 Maria Eagle: I would like to ask Mr Steele about the interaction between police and the Home Office. We have heard from many of the stakeholders who have contributed to the inquiry so far that there needs to be a complete firewall between the two on the grounds that lots of people will not report things to the police if they believe that that will lead to their immigration status, for example, being raised. Should there be a firewall between criminal justice agencies and those agencies who are responsible for immigration enforcement?
Tyrone Steele: Absolutely. From JUSTICE’s perspective, there should be a firewall. First, victims need to feel confident in accessing their rights as well as all the support they might need. If certain victims from minority communities or from migrant communities who might not have trust in the police, as you pointed to, are worried when they report something or engage with the state, or one function of the state, that that might lead to a punitive outcome for them, of course they are not going to engage. In order to have confidence to engage with the system, there absolutely has to be a firewall; that is essential.
Q185 Maria Eagle: Moving on to clause 4, it says that if there is a failure to perform a duty imposed by the legislation there is no real liability for a breach. I might be being a bit cynical, but that is my reading of it. In respect of that and for the legislation to work, should there be a legal consequence for organisations in respect of non-compliance with the code? What difference will this Bill make to the rights of those who are supposed to benefit from it if there is no consequence for breach?
Tyrone Steele: I am happy to kick off on that one. You are absolutely right; there are no consequences. Ultimately, the Bill is largely without substance; that is evident to anyone who has read it, if I can be that frank.
As for consequences, clause 4 of the Bill mirrors exactly what we have in section 34 of the Domestic Violence Act 2004. It is a copy and paste on that front.
On the issue of enforceability, it might be worth flipping it slightly on its head. We should start from the perspective that public bodies want to adhere to the code; they want to fulfil their duties. It is just about how they are going to go about doing that, when there is not adequate funding to fulfil them. You can take examples from other contexts. When a child in care is released from a young offenders institution, local authorities often battle between themselves by way of judicial review or otherwise as to who should pay for that child. Neither local authority has the budget for it, so it ends up going into litigation.
The situation here is similar. Where you have multiple statutory obligations, public bodies—the ones that are the least enforceable—are those who are doing to drop in the pecking order. That is often what has happened with respect to victims’ rights.
For other practical measures that could be introduced, it is welcome that the MP filter from the ombudsperson protocol has been removed; that is a step in the right direction. There is still more that can be done. There was a good suggestion from the Victims’ Commissioner around introducing a greater role for the Victims’ Commissioner’s Office in assisting victims when they want to make complaints.
Having a tripartite approach of greater clarity over what the rights are within the Bill, greater accountability for those enforcement mechanisms through the ombudsperson or otherwise, and greater funding to make sure that public bodies can fulfil the duties they are bound to do is the approach that needs to be taken.
Q186 Chair: Are there any other observations?
Jan Lamping: From a CPS point of view, as Baljit has already mentioned, we really are working to improve our service, and compliance with the code is really important. It would not be appropriate to make a person who has failed to comply with an aspect of the code liable to proceedings, be they criminal or civil. The consequences of failure should definitely fall to the organisation as opposed to the individual.
What is really important for us at the CPS and something that our research has underlined is the importance of victim satisfaction. Non-compliance with the code does not necessarily mean that a victim would not be satisfied, nor does compliance with the code necessarily mean that they would be satisfied.
Q187 Maria Eagle: The question that then springs to mind is: why are we bothering with this Bill? What difference is it going to make?
Jan Lamping: Clarity around the requirements of the various bodies would be helpful.
Q188 Maria Eagle: Do the very vague overarching principles that the code puts into law provide clarity or vagueness?
Jan Lamping: What sits behind those principles is the important thing. There is more work to be done on that. Baljit, do you want to comment?
Baljit Ubhey: It is definitely high level at the moment. There needs to be more detail and we are very keen to work with the Ministry of Justice on that detail.
Maria Eagle: You are being very kind to the Government’s drafting effort. Just ignore me, Chair, I am just being a bit cynical about this.
Chair: I would never have guessed.
Q189 Maria Eagle: Have you seen the new draft code yet, because we have not?
Chair: Has anybody seen it?
Tyrone Steele: It would have been helpful.
Chair: Yes, but nobody has.
Maria Eagle: Thank you, Chair.
Chair: Kieran, do you want to come in on this point?
Q190 Dr Mullan: Another interpretation might be that you could use the statutory duties it is going to create alongside a code to take a body to judicial review for failing to fulfil the code. The courts would be able to use the guidance to interpret whether or not the overarching principles had been successfully adhered to in the same way that you do with a human right, which is very broad, very vague, but is used to successfully claim against the Government all the time.
Tyrone Steele: Respectfully, if we are getting to the point where victims have to judicially review to get the bare minimum, the ethos of the code has already failed.
Q191 Dr Mullan: Do you think you should only bring in a law with a guarantee that it is going to be adhered to immediately?
Tyrone Steele: Judicial review is a very complicated process; it is very expensive and difficult to bring forward. For the vast majority of victims, they are going to be locked out of that kind of recourse. What we want to do is design a code that culturally, within the different organisations, is going to be adhered to. If we are getting to the point where we want to judicially review, I do not think that is a very good outcome for anybody.
Q192 Dr Mullan: Is that a fair reflection of what happens? Is it not more that public bodies take note of and anticipate judicial action and act accordingly? Particularly, if there has been a successful judicial review, they tend to be reactive in ensuring that their own practices are in line with it. It is not that laws are only enforced on the point of a judicial review; it is more that, when there is a legal framework, bodies take legislation seriously, and adjust and monitor their practices in an attempt to avoid legal action.
Tyrone Steele: Absolutely but you would also need some quite specific parameters as to what you are judicially reviewing. If you have these vague principles that we have pointed to, it is hard to work out how you would hold the public body to account for doing or not doing them.
Q193 Dr Mullan: We do that all the time with the Human Rights Act. They are overarching principles and they are used successfully to create change in bodies and successfully to take them to court. They are just very broad overarching principles.
Tyrone Steele: A lot of the requirements of the Human Rights Act and of the convention are quite specific. There is a lot of case law around how to interpret them. There are also consequences for not abiding by them. What we have in the victims code and the current entitlements are a parallel that would work in practice.
Of course I want to see victims being able to enjoy their rights as much as possible, but there are other things around that as well in terms of knowledge and access to the rights. The Victims’ Commissioner pointed out that 70% of victims do not even know the code exists. There is so much that can be done around the edges to engage victims before we get to the point of judicially reviewing, if you see what I mean.
Chair: Understood, yes. Do you want to come in on this point?
Q194 James Daly: Do you see why this is needed? The CPS is the ultimate example of this. We had the DPP here. I am sorry to say this, Baljit, but as an organisation you need to think about how you treat victims, and we need to review this. We could have been sat here 20 years ago having exactly the same conversation. The reason is because the Crown Prosecution Service and other organisations involved in prosecuting serious sexual offences and others in this country have not done their job properly. That is why we need this; we need something on a statutory basis to try to direct people to carry out their jobs properly.
To me, the idea that failure is an organisational rather than an individual thing is utterly astonishing. That means that no individual is ever held to account for any of their decisions whatsoever. Given your first answer regarding the failures of the CPS over many years in how it interacts with victims, do you agree that that is why this is needed?
Baljit Ubhey: We definitely recognise that we need to improve how we interact with all victims. As far as rape victims are concerned, we absolutely acknowledge and accept that there is a lot of work for us to do to get more of those cases into the system. We fully accept we need to do better, but for the past two years we have put a huge amount of effort into working collaboratively and jointly not just with the police but with ISVAs. Only last week we had a conference of 250 people—frontline police officers, prosecutors and ISVAs—about how to find new ways of working better together, and the data is starting to show an improvement. I am not complacent. I absolutely take the challenge that we need to do better, but we are working hard in that arena and making a difference.
Chair: We will move on.
Q195 Karl Turner: To follow on Mr Daly’s point very briefly, in most cases where the CPS fails victims is it not about financial resources? Is that not what it is about?
Baljit Ubhey: There are a number of issues. As I said, when we have looked at our research there are some issues around how we approach this. There are cultural issues. I do not want to make it completely a resource issue because that is not an accurate reflection of what we need to do. There are absolutely things about how we approach providing a better service to victims and that is what our work will do, but you are right that, if we need to do new activities, whether that is prosecutors or new roles, to do that well it will need to be costed. When we are talking about that enhanced service for those victims with the greatest need, we want to deliver something that will really make a difference. We need to cost that and be clear about that, and then we need to think about how we can deliver that. It is an important part, but not the only part.
Q196 Karl Turner: That brings me to the practicalities, because there is a requirement in the Bill in the victims code requiring the CPS to meet victims in certain cases before hearings. What cases might require that duty? Are there any concerns about over-promising and, frankly, badly under-delivering?
Baljit Ubhey: Definitely the devil in the detail is really key, because it is not just about the type of cases; it is the stage of the case, and it is also who meets. All of those factors can have an impact. What we are saying is: let us look at the evidence base that we have. We want to design a system that will deliver more engagement by the CPS with victims, but, to be blunt, who does that, or when they do that, is missing the point. In our written submission to the MOJ we said that if we wanted to do this in all cases it would cost a huge amount of money.
Q197 Karl Turner: You suggest it would cost £90 million.
Baljit Ubhey: Because the Bill is so high level, we have to be high level with those figures. As we get the granularity—I would like that to be informed by the research that we have done—we can give much more informed and realistic assessments of what the costings are.
Q198 Karl Turner: Is the figure you have suggested at the moment £90 million, or have I dreamt that?
Baljit Ubhey: That is if it is done in all cases at a particular stage. The detail is important here. A one-size-fits-all approach would be wrong and would not provide a better service to victims. We must do this thoughtfully and think about the purpose.
I see a clear purpose for familiarisation visits with rape victims when we know there is a not guilty plea and what is looming for them is the prospect of giving evidence. Then we can be really clear. If we are not clear, the danger is not just a resourcing question but the risk of raising expectations that there can be an influence on decision making that may not feature. We have been very clear in our written response and are grateful that the clause recognises independent decision making as a really important aspect of the criminal justice system. We absolutely take victims’ views into account in the public interest, but we also have to look at broader public interest considerations. There is no suggestion in the Bill that that will change, but it is important that we give clarity to victims and do not confuse the picture.
Q199 Karl Turner: You have identified certain cases where you would expect the duty to exist, but you referred to cases where there is a not guilty plea. For example, if there is a guilty plea on a particular basis, would that create the duty?
Baljit Ubhey: That is the sort of detail we need to work through.
Q200 Karl Turner: That detail is not there at all yet.
Baljit Ubhey: That detail is not there at the moment, but there will be issues around data and privacy. There may be other areas where victims need information and an explanation as to why certain decisions have been made, but when we do that, how we do that and who does that needs careful thought.
Q201 Karl Turner: Does the Bill have any impact on due process or, indeed, on the independence of the CPS? Are there any concerns around that?
Baljit Ubhey: I think, if we cross the decision-making point, that is preserved within the Bill as currently drafted, and that is really important. There is a point around PCCs which Jan can touch on.
Q202 Chair: We will come back to PCCs later.
Baljit Ubhey: Okay; maybe we will come on to that.
Karl Turner: I think I have covered the resource issue, but it does worry me that the CPS is spending something like 625 million quid a year. Without the Government committing, frankly, to more money, it seems inevitable that these things are going to be over-promises and under-delivery. As a panel, would you agree with that?
Chair: Are you in a position to say that? Perhaps not. It is a comment.
Q203 Karl Turner: I would like to put a final question to Mr Steele on behalf of JUSTICE. There is a requirement in the Bill for victims’ personal statements potentially to be used in mental health tribunals. Do you see any concerns around that and any other wider public law aspects that may come into play?
Tyrone Steele: Absolutely. On the issue of mental health tribunals, this is another example perhaps of potentially over-promising but under-delivering, because since at least 2011 the reality is that victims can make representations to mental health tribunals. They can make representations and are entitled to know outcomes. It is all set out in the guidance, which I would be happy to provide to the Committee after this meeting. The status quo is that victims are involved in that process. The Government do not acknowledge that in the consultation and kind of imply that it is a new area when it is not.
The second point is that often a comparison is made between the parole board on the one hand and the mental health tribunal on the other, when they are qualitatively different. One is dealing with the disposal and management of a sentence and assessing the risk of an individual when they are released. The other one is a medical process involving the capacity of an individual and any other medical treatments or whatnot that they might need. Implying or suggesting to a victim that their views will have a material or potentially influential impact on a medical process risks being misleading. It is incumbent on all of us to be up front with what the legal realities are, what would be appropriate in those contexts and to recognise that victims do have a say, or they are able to make inputs at the moment to a mental health tribunal. That is the status quo and I do not think the case for changing that has been made.
Q204 Chair: There has been some talk about community impact statements being used more widely. The CPS has a concern about it not being used as part of the evidential test obviously, because, among other things, it may not be admissible. Subject to that concern, are there any views about the wider use of community impact statements? Is there a broader group of people who might be impacted?
Tyrone Steele: I am happy to make a quick comment on that. The first point is that the Government in the consultation say they are rarely used, but they do not explain or seem to have done any research as to why they are rarely used. That would have been helpful. More generally, my understanding is that there is not much research on community impact statements or their consequences. If you are to tweak this tool or community impact statements, it is important to establish an evidential basis on which to make that policy change.
There are obvious risks from their greater use as well as the potential benefits that the Government highlight. Are we going to end up in a scenario where, if you are convicted of a crime in one area, perhaps a wealthier or better-resourced community, it is possible to make these representations and it can result in a wildly different sentence from what would have happened if the crime had been committed in another area? I think those are some of the obvious risks.
Q205 Dr Mullan: You would rather nobody had a say in case some of them created a disparity.
Tyrone Steele: No, I have not said that. There needs to be research first to make sure that there are not those inherent risks and also that they can operate properly. We have not done that research ourselves at JUSTICE and we are not aware of other organisations that have done so. I think it would be a good first step for the Government to undertake that assessment, look at the evidence and see whether these are things that can operate proportionately and effectively.
Q206 Dr Mullan: I think your evidence in writing was that, if we allow people in the community to have a say, we risk legitimising racial, class and gender biases. Do you think it is a fair or balanced statement to say that the average person in a community who is at a review is at risk of being biased and prejudiced?
Tyrone Steele: I think bias and prejudice do exist in society and that is a risk that could flow from it.
Q207 Dr Mullan: Do you think it is a balanced risk? Most people I come across who have community issues about, say, antisocial behaviour say that it is about their neighbours, very often from exactly the same class and ethnic background. Giving them a say would not really create those risks, but you think it is more important to worry about that than just giving the everyday person a say.
Tyrone Steele: Those are fair points to make, but someone needs to weigh up all of these things independently, do they not? That would be a good first step before we introduce a new policy and do not really understand how it would operate, or why they are not even being used very much at the moment because we do not know.
Q208 Dr Mullan: Your default is to say we should not do it in case it creates a risk.
Tyrone Steele: My default is to make sure that we do not introduce something that will cause prejudicial or rule of law issues. I think that is a good starting point. Once we have evidence for a policy, then we can look at it and consider it.
Q209 Dr Mullan: Do you think it is right to assume that the everyday person in this country, if asked to give an opinion proportionately, is more likely to create a problem than to let them have their voice heard in a balanced way?
Tyrone Steele: No. All I am simply saying is that it is a risk.
Baljit Ubhey: On community impact statements, we have guidance on that and we would take them into account looking at public interest. We have issued specific guidance for hate crime cases, but we recognise there are parameters around sentencing, so that clarity and not raising expectations is very important.
Q210 Dr Mullan: Do you think that from the CPS point of view it would lead to an increase in their use? The Government’s view is that there is room for them to go further and putting them in the code will increase their use.
Baljit Ubhey: It is really hard for us to predict that, in fairness.
Q211 Dr Mullan: I want to move on to the victims code right to review, talking particularly about the CPS but obviously other people might have a view. Do you think there should be a more explicit duty on the CPS and others to make sure that people know about their right to review rather than just have it as something they may or may not know about?
Jan Lamping: It is important that people know about the right to review. It is something we have been looking at as part of victims research, starting to redesign our service to victims.
As far as the CPS version of the right to review is concerned, we launched that in 2013. We are really proud of that. It works well. In the inspectorate’s report published in 2020, it was found that 72% of victims were informed of the right to review. We wanted to improve that figure. Part of the reason for the lack of information about it was simple mistakes about the particular letter being used. We have issued guidance and new templates to assist with that.
As for informing victims of the right to review, our scheme is wide and covers very many types of decisions that we make. We believe it is a robust system. Whether it needs to be codified is not really a matter for us. We will continue to develop that system and ensure that we are open, transparent and honest when we have made wrong decisions, and I think the data we publish about the RR shows that we are.
Q212 Dr Mullan: Can I clarify, when you say “we” in that regard, whether you mean just your region or the whole thing?
Jan Lamping: The CPS.
Q213 Dr Mullan: Some of the examples we have had suggest that people do not feel that it is as broad as it might be—for example, when the CPS decides to offer no evidence. Would it include that in your circumstances?
Jan Lamping: This is where we decide to offer no evidence. The right of review does apply to those. I expect the issue is to do with the fact that we can review that decision, but obviously if we have offered no evidence we cannot resurrect the prosecution. The impact of the right of review is not the same as when we discontinue or do not charge. We would not intend to change our stance on that. In only a very small proportion of RR cases do people ask for a review following the offering of no evidence. The vast majority are at the pre-charge stage, or where we discontinue at an earlier point. We would simply be delaying justice. If we are saying that there is not sufficient evidence any more to prosecute, we believe we should stop the case there and then.
Q214 Dr Mullan: Do you see some value in allowing victims to have an input into that process, just as they do at other stages of a prosecution?
Jan Lamping: Victims have a right to review. In terms of our independent decision making about the evidence, those are decisions that we need to make under the code of Crown prosecutors.
Baljit Ubhey: Case law has looked at this issue and said that you should not delay making a decision, because you obviously have to think about defendants as well, particularly people in custody. Our guidance does say, however, that we should bear all of that in mind when making decisions, but we also have to have regard to that case law.
Q215 Dr Mullan: What would be the typical timeline of transitioning from being at a point where you feel you are going to move forward and then deciding not to offer any evidence? Are you saying it would be impossible to have any kind of timely engagement with victims in that window?
Baljit Ubhey: It is very hard to say. You could not give a timeline because it depends on the case. Information may come to light in a given case at a given moment, so it is hard to generalise.
Q216 Dr Mullan: The other element is what has been described as informal pre‑charging decisions that are part of the discussion between the police and the CPS. It might not necessarily be the police, but at the moment would you say that in your system someone gets input into that discussion?
Jan Lamping: At the moment if the police come to us for a pre-charge decision and we decide not to prosecute, that falls into the CPS victims’ right to review system. If they come to us for early advice and we give that advice, the police are then the decision makers. If that decision falls into the police version of the victims’ right to review, that is where it would sit.
Q217 Chair: Mr Fenhalls, there has been a suggestion that victims in rape and serious sexual offences—RASSO offences—should have the right to free specialist legal representation, for example, if there are issues involving disclosure and so on. What are your thoughts on that? Is it a good idea, or does it run risks?
Mark Fenhalls: For what it is worth, my experience is that what all complainants want is clarity and timely justice, and to have their position explained to them. If we have enough capacity in the system because there are enough CPS lawyers there to make decisions and look after them and explain, and enough capacity to make sure trials take place quickly, you can take the time and space to explain to people. In 30-odd years I have never come across anybody who, once you take the time and space to explain to them, needs an independent advocate.
I suspect, but I do not know, that a lot of the drive towards this is because there are lots of people who rightly feel that the system has let them down. I am not sure that creating new pathways to ligation and controversy will necessarily help. If there is a drive towards it, I urge the House to do it on a very small scale and measure it properly first; otherwise, we will be back in a situation where the system becomes defensive and spends more time arguing about what it has or has not done well rather than just getting on with trying a case properly, fairly and taking full account of the complainant’s rights.
Q218 Chair: Are there any concerns around disclosure rules and victims’ rights to privacy?
Mark Fenhalls: None of us has come to terms with the fact we now live our lives on our phones, and it is not easy. One of the ways we could all be thinking about sorting out this problem is to bring skill back into the police station, with experienced police officers who have not taken early redundancy, and experienced solicitors attending and being paid properly. Then, quite often, you have a situation where somebody is trusted. A proper debate goes on and issues are narrowed, and it is perfectly possible to say that in this case nobody has ever had a communication on a phone. There is not even an issue about somebody’s phone, but if you do not bring that skill back into that early stage it becomes much more difficult to juggle.
Chair: Fair enough; I understand that.
Q219 Laura Farris: I want to ask a few questions about oversight and enforcement. In the Bill, the Government propose to move compliance away from the Victims’ Commissioner to PCCs, so it is a devolved oversight role. Do you have any views about that? In particular, I want to ask about the appropriateness of PPCs exercising oversight over the CPS. I am not familiar with whether that is something it does typically, or not. I have not really encountered any engagement between my local PCC and the CPS, but maybe I am wrong about that.
Jan Lamping: PCCs play a really important role in local partnerships and criminal justice boards and have a key role in supporting victims. We do not have a concern about PPCs having an oversight or convening role, but we would want to clarify the extent of that role. There would need to be a recognition of the operational independence of agencies, particularly the CPS.
Q220 Laura Farris: How would you anticipate the PCCs would assess whether or not the code is being complied with? Would it be basically only by negatives—complaints—or would there just be a general tick-box exercise, for example, “We have had so many complainants and have provided the following service”, and you tick the box each time? I am not sure I have understood exactly how it would be conducted.
Jan Lamping: Compliance with the victims code is quite a complex and nuanced thing, is it not? As I mentioned earlier, it is not a tick-box exercise. The victim satisfaction side of things, as it were, is obviously important. As for data, that might help. From a CPS point of view we provide some data nationally, but broken down to local level, about some aspects of the current code—for example, on the timeliness of letters to victims—but it would not be easy for us to produce a simple dataset to show that in a percentage of cases we have complied with all aspects of the victims code.
Q221 Laura Farris: It might be quite dependent on receiving complaints about failings in a certain area.
Jan Lamping: It is feedback in general. Some of that might be complaints. That would be one way of looking at that.
Q222 Laura Farris: On enforcement, what do you think the PCC should be able to do if, for example, it finds there has been non-compliance with the CPS, or something that is not within its jurisdiction? I think you know what I mean.
Jan Lamping: I would not see the role as being along those lines, enforcing compliance.
Q223 Laura Farris: It is more like data gathering. Would that be part of the dialogue maybe with the Home Office or the MOJ?
Jan Lamping: I would see it working in the way things work at the moment, which is local accountability across the criminal justice agencies for code compliance, or whatever aspect of work we are doing. Where criminal justice boards work closely together—I have seen this in my experience of the areas I have worked in—everybody pulling together to achieve something will deliver results. If we are looking at it from the point of view of the CPS not complying with this aspect, I do not think we will deliver better outcomes for victims. It is very much about agencies working together at local level.
Laura Farris: My next question is to you, Mr Fenhalls, about the comments you made on a radio show in relation to what the Prime Minister said about lawyers aiding and abetting criminal gangs. I want to try to take the heat out of this issue in the way I put the question.
Chair: We are moving away from the Victims Bill.
Q224 Laura Farris: I should have said that. All of this language is inflammatory. First, has anyone from Government spoken to you about any part of that?
Mark Fenhalls: I raised the issue with Government immediately. I raised my concerns in the strongest possible terms on that Tuesday afternoon. I was interviewed by Times Radio and it translated into the front-page story on the six o’clock edition of that when it renewed on the Thursday. I think all lawyers within government understand the damaging and undermining consequences of language like that. As I think I said on the radio, the Prime Minister is, as we all know, an extremely intelligent man, who understands the power of language and understands what he is doing. My concern about this, and, forgive me, I did not mean to cut across you—
Q225 Laura Farris: I suppose there was a follow-up question. I put this in a very neutral way and hope it will be understood in that way. In some strains of the immigration Bar I know there are some barristers who would not contemplate taking a case for the Home Office in any circumstances, so the cab rank rule is not really the way they operate their practice. They are claimant lawyers. Simultaneously, they will sometimes run a social media account which is quite political. Do you think there is a role for you? I am not trying to direct you, or anything like that, but maybe some barristers do embrace quite political aspects.
The question is about taking the heat out of it rather than having lawyers setting themselves up as adversaries to Government, if the Home Office does something inherently evil, because they do not like the Home Office. Perhaps you do not have a view on that. Do you think that is fair, or is there anything in that?
Mark Fenhalls: I have spoken publicly at Bar Council meetings, which are often tweeted around our community, about the importance of barristers not associating themselves with their particular causes and their clients for exactly that reason. I understand only too well that there are consequences flowing from that. Many of us would like to uninvent Twitter for a whole series of different reasons. Everybody has to be very cautious about their language. I already speak publicly about the sorts of risks to which you allude. It does not mean that I have an answer to it.
Q226 Chair: You raise the point fairly. That is helpful, Mr Fenhalls. The other thing I wanted to ask, again topically, is that, as of yesterday, the Criminal Bar Association is undertaking various days of action and, continuing the no returns policy, not taking new instructions in legal aid cases. You put out a statement on behalf of the Bar Council, which we all have in front of us, setting out its views, saying that last week the Government committed to laying a statutory instrument before the summer to bring in a fees uplift in September. You describe that as a welcome first step but one that should be followed swiftly by longer-term planning. Can you give us your assessment of the prospects of a settlement being reached at this stage?
Mark Fenhalls: I cannot tell you about any detailed discussions in relation to a formal settlement, or anything of that sort, but what I can properly say is that it is a source of immense sorrow to me, as someone who has practised criminal law for 30 years, that we have reached this stage. We have reached this stage because of a decade of underfunding from 2008 onwards and people feeling not respected and treated properly as professionals. There is a capacity crisis around the Crown court which does not serve our public properly. That capacity crisis begins with judges and includes court staff, buildings that do not function and insufficient advocates. Unless we start to rebuild and give people the confidence that criminal justice is not a political football, that when you create new offences that go to the Crown court it puts demands on capacity which need to be funded and we are honest about criminal justice governance in that way, we will not solve this problem.
Coming to the incident last week, about 10 days ago the junior Minister put out a piece through the Law Gazette saying that the increases were coming and they would take effect in September. In an interview last week on Sky News, the Lord Chancellor said it will be 15% as far as advocates are concerned. We have not had a formal announcement yet. I am hoping that one comes very swiftly, but that is the first step, as you quoted from my statement. What is key to this is confidence in long-term capacity; otherwise, we cannot help rebuild. This morning I had a conversation with a solicitor approaching 60. He runs a fantastic firm and he is contemplating closing it in the autumn. He will take a lot of capacity out of the system. Because of the experience of the past decade, people do not trust that there is a medium and long-term plan to regenerate and rebuild.
What must happen after the first step is an expression from the Government that they are committed to an evidenced-based assessment of what the country really needs and what expenditure is required in the next phase. That is around the Bellamy recommendations for solicitors and barristers, but we must have that acknowledgment of the fact that this is a beginning. We understand the position that the country is in. This is the emergency infusion, but it is the first step of many—if you like, the first stepping stone across the river. It is that kind of language, positive commitment and process that will build confidence to enable the professionals to make the decisions they want to make, which is to do this kind of work.
Chair: Okay; I understand that. We are going to have to be very quick because the Minister is due to come and we have a short time left.
Q227 Dr Mullan: Building on everything you have just said about this being the beginning of what you hope is an improvement in the situation—we have spent £400 billion of taxpayers’ money supporting a whole load of professions, including the Bar—what impression do you think it gives the public of the legal profession if at the beginning of something positive it chooses to take the action it has taken? What do you think an everyday member of the public will think?
Mark Fenhalls: I have given up trying to second-guess what every member of the public thinks. I read the media coverage like you do and everybody makes their own private assessment. Can I come back to one of the things you have said? As far as the Bar is concerned, almost nobody was helped through the pandemic. The only help that existed was people taking out loans. To the extent to which those loans were guaranteed there was help, but there were no handouts in that sense. Lots of us took out those loans and are replaying them, so there is a balance to be struck in all that kind of language about it. I would dearly love everybody suddenly to begin believing this is the start of something new, but these are independent people, each making their own decision, who are desperate, angry and upset after years of feeling mistreated. That is what I would like to begin to solve.
Q228 Chair: Can you assist us as to what sort of impact you think the actions will have on the justice system, or is it too early to say?
Mark Fenhalls: I know that every barrister out there will deeply regret any personal impact it has upon any individual. There are lots of people who continue to run their cases in spite of all this because they think there is somebody particularly vulnerable they have to look after and they cannot make that trade-off. Nobody does this lightly. Everybody wants to go back to work and nobody is enjoying this process. We would like to have a rapprochement where everybody begins to believe in government again and that the Ministry of Justice is serious and has the power to persuade the Treasury to deliver material that is evidence-based.
The first step, which we have now, is all very well, but if we find in a year’s time that the practice data shows that people are leaving this kind of work and are not doing it because they are going somewhere else, that solicitors’ firms have closed, and, where they can, barristers are choosing to do other kinds of work, we have to understand either that we have to have an awful lot less coming through the system or we have to find a way of funding the people who are willing to do it. All of these people can go off and choose to work for non-crime practices around the country, so that is the market reason.
Dr Mullan: I understand that.
Q229 Chair: That is understood and fair enough. What you have said is helpful.
Mark Fenhalls: If I have gone on for too long, I am sorry.
Q230 Chair: No, not at all. That is understood, Mr Fenhalls. That is fine; I am grateful to you.
That is the end of our questions for this panel. We are very grateful to you. If there are some follow-ups in any areas, as Mr Steele suggested, we would be very grateful for those. I am sure Mr Fenhalls will pick up the other issues as we go along. Perhaps you are able to make sure that the team has the CPS guidance referred to earlier. That would be helpful too.
Baljit Ubhey: I am very happy to share that and a couple of other observations about things that could be helpful in the Bill that we have not covered today.
Chair: That would be most useful. If there is anything you have not covered, please drop us a note. Thank you very much. We are very grateful to you for your free time and your evidence.
Examination of witnesses
Witnesses: Tom Pursglove, Amy Randall and Victoria Atkins.
Q231 Chair: We know the Ministers, and, Ms Randall, you are the director for victims and vulnerability policy at the Ministry of Justice. It is good to see you.
Ms Atkins, perhaps I can come to you on the specific areas I know you have dealt with in relation to the Bill because I am conscious there is some shared responsibility between the two of you. First, I will start with where we are with RASSO offences. One of the things that has been suggested—I know it is an area with which you have been involved—is that victims of rape and serious sexual offences might have the right to free, specialist representation, for example, if there are disclosure issues, which you and I will know from our times in practice arise. What is the Government’s view on that? Does the Government have a view on that?
Victoria Atkins: We have just finished public consultation on exactly that point. We committed in the Rape Review Action Plan, which was published a year ago, to look into this matter because, as part of the preparation for that action plan, we conducted a forensic examination of every stage of the criminal justice system. We came up with a number of measures, eight levers, chiefly, which by now I should be able to recite from memory. One of the main areas we know from victims and those who work with victims are concerns about disclosure, not just in respect of phones but also third-party materials. We have pledged that in relation to phones the Home Office will invest in better technology in order to be able to download phones quickly when it is necessary to do so.
This brings me on to the second part of the commitment, which is that the Attorney General would review the disclosure guidelines, as indeed she has, with particular efforts, I must say, by the Solicitor General, and we have published very recently disclosure guidelines that help to clarify and guide members of the police and the CPS as to their duties and responsibilities when it comes to considering either phone material, or digital device material, or, importantly, third-party material. Indeed, at the moment, there is also an ongoing consultation specifically on third-party material because we know for victims it can be such a blow to them to have social services or medical records collated and then disclosed.
Q232 Chair: Do you know how long that consultation is likely to run for?
Victoria Atkins: The third-party material consultation closes in early August—I think on the 6th or the 9th—and then they will respond in due course. I should say as well that in the police Bill, or now Act, we set into statute the requirements on the police, the CPS and so on in relation to digital devices. With third-party material, as I have said to the Victims’ Commissioner and others, we are very much open-minded as to what the results of the consultation will show and what our action should be thereafter.
Q233 Chair: Thank you very much. Clause 5 of the Bill places duties upon various criminal justice bodies, including police and crime commissioners, to collect certain data. What we are interested in is whether or not there should be a duty included in the Bill to consult victims’ organisations on the data that is going to be collected.
Victoria Atkins: Sir Bob, I hope I am looking at the same draft as you. Is that clause 6, duties to collaborate in the provision of victim support services?
Q234 Chair: What I have here is clause 5.
Victoria Atkins: Review of compliance with the victims code?
Q235 Chair: Can we have a look at clauses 5 and 6?
Victoria Atkins: All right.
Q236 Chair: This is around the scrutiny, among other things, by PCCs.
Tom Pursglove: I can help on that, Chair.
Chair: Yes, okay.
Tom Pursglove: Can I, first, thank you and your Committee for undertaking this PLS around this piece of legislation? I am proud of the fact that the Ministry of Justice is bringing this forward, and we are keen to hear the Committee’s views and to reflect on those and move forward with progressing this Bill at the earliest opportunity.
What I can say about what kind of data should be collected and consultation around that is that it is for the Secretary of State to use their discretion to determine the nature and the extent of consultation that is required when listing certain parties would be more restrictive. It is fair to say that I am very happy to consider that opportunity because, clearly, the sector has a lot of experience and knowledge to be drawn upon in terms of shaping what data should be collected so that we can drive these outcomes in the way that we are all hoping to.
Chair: Thank you very much. That is very helpful, Mr Pursglove. Mr Mullan, this is clauses 6 and onwards.
Q237 Dr Mullan: This is in relation to ISVAs and IDVAs. Some of the concern we have had from the sector is that, if we define it in legislation, it is going to make it difficult for the whole breadth and depth of the service providers to fall under that category. How did you approach striking that balance when it comes to the definition? Do you feel that it strikes the right balance as it stands?
Victoria Atkins: The definition, as set out in clause 9(2), is drafted deliberately broadly, which was precisely because of that feedback from the sector. We were very careful in all of this to listen carefully to those professionals who are working with victims. While we have the definition in the statute—I hope the Committee will agree it is broad enough, but, of course, we will be very mindful of the Committee’s recommendations—none the less, we have quite deliberately restrained ourselves when it comes to how those IDVAs and ISVAs should conduct their business and their duties, and we are confining ourselves to statutory guidance for exactly that point. In due course, after our consultation on the draft guidance, after we have published it, if it emerges that five years hence practices have changed slightly or need tweaking or adding, it is much easier to change guidance as it goes along rather than primary legislation.
Q238 Dr Mullan: That is really helpful. To put it the other way round, are there certain practices at the moment about which the Department thinks, “We are not sure that that is a sustainable way forward, and those are some of the things we do not want to be in the game further down the line”?
Victoria Atkins: Not that I am aware of. I am particularly keen to listen to those who advocate for specialist “by and for” services. There is much more to learn on the importance and value that they bring to victims with protected characteristics or particular needs. Indeed, we have followed this up last year alone with a further £2 million in funding for specialist services in that regard. We are very much working with the sector with the grain on this in the interests of the victims.
Q239 Dr Mullan: You mentioned consulting. Victims’ groups, representative groups and providers would all be people whom you expect to have a voice in the consultation.
Victoria Atkins: Very much so. I want us to replicate what we did with the Domestic Abuse Bill, and Act, and, indeed, the guidance therein. This is a document for the whole of society, so we need to ensure that we have as much expert evidence and so on as we are drafting these documents so that they have the best effect on the ground in our constituencies.
Q240 Dr Mullan: The Children’s Commissioner advocated for children’s sexual and domestic violence advocates to be in the Bill as well. Is that something that you considered, and, if not, why not?
Victoria Atkins: In relation to domestic abuse, we have, in fact, in clause 9(4) specified primary victims of domestic abuse and their children. There was a great deal of debate during the progress of the Domestic Abuse Bill as to whether children needed to be specifically defined within the Act. I listened very carefully to parliamentarians across the House on that. We concluded, following their representations, that there was a need, and we put it in section 3 of the Domestic Abuse Act. We have tried to follow that through in this wording here in subsection (4) because we talk about primary victims and their children. Of course, that does not in any way undermine section 3 of the Domestic Abuse Act, namely that children are victims themselves; we just wanted it to be absolutely clear. Then in subsection (5), we referred to primary victims of sexual offences. Sadly, of course, that will include child victims, tragically.
Q241 Dr Mullan: They are covered as such by the advocates who are defined. They are not limited to adult advocates, it would be argued.
Victoria Atkins: Certainly not. As you can imagine, I visit sexual assault referral centres and other community-based services very regularly, and I have been moved and incredibly impressed by the work of professionals who work with children because that is an extremely important but also very difficult area of work.
Q242 Chair: Thank you very much, Dr Mullan. I have one final thought, Minister, because I know you may have to leave shortly. We have the draft Victims Bill. We also now have the Bill of Rights published.
Victoria Atkins: Ah, yes.
Q243 Chair: Is there some potential tension between the two?
Victoria Atkins: Is there a tension between the two?
Q244 Chair: For example, it has been suggested that victims’ rights may be restricted by the Bill of Rights because it will reduce certain pre-commencement rights. The example that is given is the way that the victims of John Worboys were able to use their convention rights to take action against the police because of the failure to give them a proper investigation, as they are entitled to by right. On the face of it, the Bill might remove that type of right.
Victoria Atkins: First of all, I welcome this sort of scrutiny of the Bill of Rights. I know the Deputy Prime Minister does as well. First and foremost, the convention remains incorporated into domestic law. The Bill of Rights is about the framework and structures around the convention. In the specific case of Worboys—because I appreciate that activists and others have raised this—my starting point is that we do not want victims, first and foremost, to have to go through the pain and distress of years and years of litigation in order to make the point that the police should do their job correctly in the first place.
That is absolutely what the rape review is aimed at correcting. I do not want victims such as the women who pursued the Worboys case, or any victims, to have to go through that. They should be treated properly and rightly, and their cases conducted properly in the first instance. The work through the rape review with Operation Soteria, disclosure guidelines work and so on is very much building that up.
In terms of legal redress in years to come, there is nothing in the Bill, I am assured, that would prevent that scenario from coming into being. Please do not think that I want that to happen. I want, first and foremost, victims to be treated properly.
Q245 Laura Farris: I have a brief follow-up on that. I asked the first panel this, too. What cause of action would the women have had in the Worboys case had they not been able to rely on the Human Rights Act?
Victoria Atkins: I will have to write to you on that, I am afraid.
Q246 Laura Farris: That is my concern, Minister, if you qualify the Human Rights Act in the way that is being proposed under the Bill of Rights. The Human Rights Act has filled in a lot of the grey in different areas of the law. I asked the previous panel this also. In the absence of being able to avail themselves of the protection that they would have had, what law would they have used in order to get the same result from the police?
Victoria Atkins: I am assured that there is nothing in the Bill that changes that. That redress will still exist. What we are focusing on is that we do not believe that courts and litigation are the way in which to guide or to instruct, if you like, the police to conduct their investigations. They are operationally independent. We believe that if there are to be changes in their operating procedures it should be first and foremost with them, as is happening with the rape review, but also through primary legislation and secondary legislation in this place. It is the activism of the European Court that has led to this concern about how litigation is shaping operational procedures.
Q247 Laura Farris: Would you mind writing to us about what cause of action they should have brought the same complaint against the police on, because I am not satisfied at the moment that there would have been an adequate avenue of redress without recourse to the Human Rights Act?
Chair: That would be helpful. We would be grateful to you, Minister, for that. If you need to leave at any stage, please do.
Victoria Atkins: Thank you so much. I am chairing the next rape review taskforce with Baljit and others, so thank you very much indeed, if there is nothing else. I am happy to write on anything else as well that emerges.
Q248 Chair: Thank you very much. I am sure Mr Pursglove and Ms Randall will very adequately deal with all the other matters as well.
Mr Pursglove, can I then come to clause 1 of the Bill, which defines “victim” for the purposes of the Bill? It differs from the definition in the victims code. In particular, the victims code additionally defines “victim” as a close relative or a nominated family spokesperson of someone whose death was directly caused by a criminal offence. Why is that not in the Bill?
Tom Pursglove: The definition is as broad as possible to capture victims and witnesses of crime as far as possible, and that includes people who have been harmed, people who are subject to a crime or people who are a witness of crime. The definition means that people are able to access help and support in the way that they need to, even if a crime has not been proven. We would not want to inadvertently put a barrier in place to people being able to access the help that they need.
Of course, it is also fair to say that measures are included in the Bill that would not be appropriate for certain victims to be able to access. For example, bereaved families would not necessarily need to access ISVA or IDVA support, for obvious reasons. That is why the definition is described and set out in the way that it is. There is certainly no great conspiracy here. Then, obviously, the subsequent detail follows on.
Q249 Chair: If someone was a close relative of a person who was killed as a result of a criminal offence—let us say the widow or the son of somebody who was killed by a dangerous driver—would they be regarded as a victim for the purposes of this Bill?
Tom Pursglove: Yes, they would be able to access help and support.
Q250 Chair: If that person, because of their grieving state, wished to nominate a spokesperson for their family because it was too much for them, would that spokesperson be able to do that?
Tom Pursglove: I believe so.
Q251 Chair: So that is the same as the code, is it, or not?
Amy Randall: It is the same as the code. The only reason the definition is different, as the Minister has set out, is because there are some specific provisions, specially the ISVA one, that do not apply to bereaved families.
Q252 Chair: All right. That is helpful, Ms Randall. You include witnesses in the definition of the code. What are the implications of that?
Tom Pursglove: Sorry, I am not sure I entirely understand.
Q253 Chair: I will put it this way. A victim in this instance can be someone who has witnessed a crime and has suffered as a consequence. Let me give an example. If someone sees a stabbing in the street, they are not the victim of the stabbing, but they are then traumatised by what they have witnessed. They would be regarded as a victim as well as the person who was stabbed. What are the practical implications of that? They will have access to certain rights.
Tom Pursglove: Yes. The intention there is that those individuals are able to access the help and support that they need to recover from the trauma that they have, understandably, experienced in the sorts of circumstances that you describe.
Q254 Chair: Have you worked through what the resource implications of that may be?
Tom Pursglove: As you will know, we are very considerably increasing spending on victims-related issues. I am proud of the work that we are doing. A lot of that commissioning takes place at a local level through police and crime commissioners. The funding settlement that we have put in place runs at £192 million by 2024-25, which is a significant uplift in core budgets to help with that work as well as—and I was very passionate about this—delivering a multi-year funding settlement to try to give certainty to providers to be able to provide the sort of support that is necessary. I would argue that there is significant resource there to meet local needs. It is right that, wherever possible, that is locally driven to be able to reflect crime types and the particular needs of individual communities and circumstances. As a consequence of that, the support would be available, backed by Government, to be delivered locally to support that individual in the way that we would all want to see for our constituents.
Q255 Chair: I understand. I assume that when we have the Bill in its final form there will be an impact assessment.
Tom Pursglove: We will, of course, keep all of the equalities impact assessments and the general impact assessment up to date.
Q256 Chair: That would include resource impact assessments of the cost of these services to a wider group of people.
Tom Pursglove: Yes. Of course, there are duties and measures within the Bill—perhaps we will touch on this—that we are currently still working through. At the moment it is not yet possible to quantify precisely what the costs associated with them will be, but, again, I hope to be able to say more about that when we have managed to finalise the finer detail.
Q257 Chair: From what you say, we are not to include witnesses who have suffered trauma but only looking at psychological harm as being potentially something that brings them within the scope of the Bill—
Tom Pursglove: Yes, witnesses of crime are included within this Bill.
Chair: And whatever harm they suffer. I see.
Q258 Maria Eagle: Considering something like Hillsborough, which was a crime—97 unlawful killings—many thousands of people witnessed it, including some of the police who should have been doing something about it and did not. They were all witnesses. If this Bill had been extant at the time, would all of those people have been classified as victims under this legislation and all had the rights set out under the code?
Tom Pursglove: I think this issue has been raised previously. What was said was that this would be retrospective in the sense that it would be applicable.
Q259 Maria Eagle: We nearly had the same thing happen at the Champions League final recently. I am not saying it should be retrospective, but suppose there was another big disaster of that nature, which we were lucky to escape only as recently as May. Would all of the people who were affected by that, as at Hillsborough, be able to be classified as victims and have all of these rights?
Tom Pursglove: Those who had witnessed a crime would be eligible within the scope of this Bill to access support. What I would say in response to a Hillsborough-type tragedy, which was absolutely appalling, is that Governments tend to put in place additional packages of support to try to make sure that the issues that arise from those sorts of public disasters, tragedies or issues are properly picked up and that people are appropriately supported. In the event of an incident like that happening, I have no doubt that over and above the situation with regard to the Bill we would be looking at what else was necessary to put in place to support individuals.
Q260 Maria Eagle: That deals with point 2, which is to be able to access services that support them, but what about things like the opportunity to make their views heard in the criminal justice process and be able to challenge decisions that have a direct impact on them? There were thousands of people who witnessed what happened at Hillsborough. If that were to happen now, would all of those people be able to challenge decisions that had a direct impact on them? People were very traumatised by Hillsborough, but with some of the even vaguely expressed, as they are, rights that are going into the legislation, it would be very difficult practically, would it not, to enable many thousands of people in a disaster of that nature to be able to challenge decisions in a criminal justice sense?
Tom Pursglove: Undoubtedly, there would be quite considerable challenges, or certainly significant potential challenges, arising out of a situation like that, where we would need to look at potentially what bespoke arrangements would need to be put in place over and above. One of the key principles behind what we are doing here is to try to make sure there is that greater accountability locally that then feeds through to the national accountability structure. That would mean that, if there was a significant issue in a local area, there should be intervention on a local level through collaborative working to try to address that. Where escalation is needed, that is precisely what the changes that we are trying to introduce here are all about delivering, which would then highlight to Ministers and others in Government, and the Victims’ Commissioner as well, where there were particular challenges and problems that we would need to work through. That is the thinking behind this. There should be a better join-up around accountability to try to drive improvement, which would hopefully mean that those sorts of issues would be escalated quite quickly and a plan put in place to work through them and deal with them appropriately.
Q261 Chair: All right, I understand. I will come back to Ms Eagle again with some other questions in a minute. We have talked about people who have suffered harm as a direct consequence of criminal conduct. What is the indirect harm that might be excluded from that? That is the phrase that the Bill uses, ”direct consequence of criminal conduct”. It has been suggested to us that that excludes what you might term secondary victims. Would children born of rape be a victim for these purposes? If someone is murdered abroad, are their family members victims or not for these purposes?
Amy Randall: I believe that we have provided additional information to you overnight on that specific question. To follow up on your specifics, when it comes to victims of crime oversees or bereaved family members overseas, they would not be covered. There is other support available, for example, through the FCDO that they could access, but, no, they would not be—
Q262 Chair: Is that because you have to draw a line somewhere?
Amy Randall: Yes.
Q263 Chair: One other area that has been raised with us is the question of behaviour that can be deeply traumatising to people but does not amount to a criminal offence. Certain types of antisocial behaviour can make people’s lives a misery. In layman’s terms, people would say they are victims of that behaviour, but they would not be included in the Bill because it is not criminal conduct. What is the rationale behind that if we are trying to get to support as many victims of bad behaviour as possible?
Tom Pursglove: The Bill very directly relates to victims of crime; it does not relate to neighbour-related disputes, which is an issue for individuals, but there is appropriate support elsewhere that Government backs to help individuals with that. That is not to say that police and crime commissioners, using their victim funding, cannot commission services that help to address those issues and to provide localised support that is appropriate if they consider that to be a priority for their area. The Bill itself very directly relates to criminal justice system-related victims.
Q264 Chair: The Victims’ Commissioner gave evidence to us last week or so. She suggested that victims of crimes should be given what she described as “participant status”. That would be a new concept in our system, although it does happen in some civil law jurisdictions. I am not sure if there are any common law jurisdiction examples. What is the Government’s response to that?
Amy Randall: It is something that, if the Committee makes recommendations on it, we will look at. It is not an avenue that we have chosen to go down at this point because of how broad that would make it. That is not our intention in this Bill.
Q265 Chair: Is there a risk that sits uneasily with an adversarial system of criminal justice in which the prosecution brings the charges, must prove them against the defendant, and then if you give participant status to the victims that arguably blurs the line as to who is responsible for the prosecution and so on?
Tom Pursglove: There is a careful balance to be struck with all this. I certainly am keen to consider all of the suggestions and recommendations that are made by your Committee and further afield. I would want to read what the Victims’ Commissioner said and in the context in which she has said it. I would argue that the way that we provide better support for victims and the way that we empower victims is through the measures that we are introducing, which I think obviates the need to go down that route.
From my point of view, the work that we are currently undertaking with the CPS to try to support victims to be better informed and better kept updated as to the circumstances of their case about next steps and progress—because this is an issue that is raised with us fairly regularly—I hope will give greater reassurance and will help victims to feel that they are better supported through this process. I think it can be achieved not just through the Bill measures but through the wider work that we are doing. The ISVA and IDVA provision is an important part of that too because we know that victim attrition is a challenge. More victims continue to sustain themselves within the process when they have that support. I would argue our wider package is the right way to tackle this.
Chair: Okay, fair enough.
Q266 Maria Eagle: Minister, what difference does the Bill make? What requirements does it place on agencies to deliver victims’ rights further than the measures that are already in place? What difference does it actually make having this on the statute book if it were to get there?
Tom Pursglove: It is fair to say that there has been a longstanding consensus in Parliament that enshrining the victims code in law is the right thing to do. I am proud that we are getting on and delivering on that commitment. It is something that the Secretary of State is determined to see through, and it is something that I, as the victims Minister, am determined to see through. I say that because it gives greater prominence to the code and those rights. It will help to generate awareness. Again, I am keen to hear views about how we can broaden that awareness.
It is also about improving accountability. It is about having a connection from the local through to the national so that we can highlight where there are issues, where there are challenges, where things are lacking, where improvement is required and where resource should be directed. It is about streamlining complaints processes so that people are not being re-traumatised when bringing forward complaints, that people feel that they are being properly heard, and that those complaints are being dealt with expeditiously.
That is what this is about as well as making sure that there is a proper join-up across services so that the services that are commissioned best meet the needs that exist in local communities. I do not think the Bill itself should be seen in isolation. It genuinely has to be seen within the context of the wider work that we are doing around this. Taken together, this is a pretty seismic moment in terms of improving the lot of victims and making sure that victims feel better supported and better able to navigate their way through the criminal justice system.
Q267 Maria Eagle: Perhaps “seismic” is not the word to use if the victims of tomorrow, once this Bill is on the statute book, have no more rights or ability to enforce their rights than they currently have. Given that clause 4 says there is basically no liability for a breach, what more recourse do victims have if they are denied their rights after this Bill passes than they have now?
Tom Pursglove: If failings are highlighted, the expectation is that a concrete action plan will be drawn up, and that will potentially have come about as a result of the direction of Ministers involving discussions with the Victims’ Commissioner and others to get the agencies to investigate, to get to the bottom of precisely what is lacking, and then to draw up an action plan that directly addresses that particular issue.
We are also very willing to look at non-legislative options—for example, whether there are alterations that can be made to ratings for agencies to better reflect victims’ issues. That is all ongoing work. I would argue that something that may be raised by a victim in a local setting could potentially lead to intervention not just on a local level but also on a national level with Ministers directing the inspectorates to take a look at this, to get to the bottom of it, and to devise a plan that will overcome the challenge and the issue that that individual, or that group of individuals, has highlighted.
Q268 Maria Eagle: I am all for non-legislative action; it tends to be much faster, Chair, but, if I am a victim after the passage of this legislation, it is on the statute book, and I have tried to get a right to which I am entitled and I do not get it, clause 4 says that there is no liability that I can use by way of a cause of action to get my right, to enforce my right. So what difference will having this Bill on the statute book make to me, that person, that victim, defined as such under your legislation, who has tried to get a right and failed to receive it? How am I any better off with this Bill being on the statute book than I am now when it is not on the statute book but there is a code and there are things that I can pursue and questions that I can ask? How does this make a difference to the individual victim who has not received one of the rights that they are entitled to?
Tom Pursglove: Of course, there is the parliamentary ombudsman, and we are taking the lock off complaints at the moment. As we all know, because we deal with parliamentary ombudsman complaints as constituency MPs, people come to us with those complaints. It is right that there is an arbiter who can take a look at the particular issue that is being raised. It is right that we remove that barrier to people lodging those complaints. I am always very mindful that we do not want to re-traumatise victims by making them talk about something that is very difficult for them unnecessarily over and over again. It may be that the individuals still want to come to their MP to raise a particular issue. I would argue that you are perhaps one of the most effective Members of this House in championing issues and injustices and striving for action to put them right. Of course, the ombudsman is part of that. That allows a proper process to be followed where somebody feels that their case has not been handled appropriately and where their right has perhaps been denied.
One of the other reasons why we are taking this approach by setting much more of this out in secondary legislation and through guidance is that we can then be responsive to issues that arise as time passes. If a victim came to you and highlighted that there was a particular challenge where they had been denied support or they felt that there was something lacking within the victim’s space, we could look to address that more directly and more quickly because of the responsiveness and the nimbleness that the system allows.
Q269 Maria Eagle: You have chosen not to put the 12 code entitlements into primary legislation. Instead, you are placing what might be seen to be quite vague and what you referred to as four key overarching principles of the code into the statute. Why is that? Why have you chosen to do it that way?
Tom Pursglove: The reason to develop the entitlements outside primary legislation is for the very reason that I have just touched on: so that we can be responsive; so that we can be nimble; so that if there are new types of criminality that are currently not relevant we can be responsive to that; if there are new forms of communication by which victims could be communicated with, we can be responsive to it.
Let’s be honest, prior to the pandemic, the thought of having meetings virtually in the way that we have become accustomed to would have been virtually unthinkable. Now, that is a perfectly legitimate, established means of communication, and I want to make sure that victims are able to access the help and support that they need in a way that is most appropriate for them. There should be choice and flexibility in this. By developing the entitlements in secondary, we are able to be responsive and nimble and update them as time passes.
The reassurance I can give you—and I am committed to this—is that during the passage of the Bill we will publish those draft entitlements so that they can be seen in the context of the debates that we will be having. One of the reasons why I did not want to publish them at this stage was because I wanted to have thorough consultation and I wanted to have the roundtables and the opportunities for the sector and others to come forward and bring their views to us. Frankly, I consider myself to be a parliamentarian. I value the work that the Select Committees do and I value pre-legislative scrutiny, so I would welcome the input of this Committee.
Q270 Maria Eagle: We are not going to be able to if we have not seen the draft.
Tom Pursglove: But the point is that we will be taking account of the broad feedback that this Committee is making, and that will inform where we go next in terms of publication and the detail of those entitlements.
Q271 Maria Eagle: We can write the new code for you then, Minister.
Tom Pursglove: I will consider whatever this Committee brings to us as being recommendations because that is right and proper. Every submission is being looked at carefully. We have responded to the consultation in the way that is normal practice. This pre-legislative scrutiny is important. If you have ideas, I will absolutely consider them.
Q272 Maria Eagle: It would have been nice, I think, to have had the draft code before us as well as the draft legislation, but I understand the point that you have made, Minister.
Why is there not an obligation to consult on the draft code in the Bill?
Amy Randall: It is a requirement that we will consult on the code. It is set out in the code that we will consult on any changes that we make, so that is entirely the intention going forward as well. It is set out specifically in the Bill as well that any move to significantly restrict who the code would apply to would need to be consulted on.
Tom Pursglove: I think you need to pass primary legislation to do that too. There is a lot of protection in place. You could never do that in secret. Let us put it that way.
Chair: Thank you, that is helpful.
Q273 Dr Mullan: Just picking up on the questions from Ms Eagle about clause 4, my interpretation was that putting it into statute, while it is not an ideal tool, would allow people to access the tool of judicial review and say the state has this legal obligation, or the state body has, and it is not fulfilling it. Do you know, and if you do not know can you write to us to confirm, whether the clause 4 escape clause as such prevents someone from doing that? Can you still take a body to judicial review if they are not fulfilling their statutory duties laid out in the code?
Amy Randall: Yes.
Tom Pursglove: Yes. I am happy to take that away and see if I can provide any further detail, but the crude answer to the question is yes.
Q274 Dr Mullan: I want to ask you about clause 2(3) of the Bill. If you do not mind, because I want to get it right, I am going to read it. It says that the code may restrict the application of its provisions to a specified description of victims and victims of specified offences or descriptions of conduct, mirroring the provisions originally set out in the DVCVA. Essentially, the code may say that this does not apply to certain victims and certain crimes. I am interested in what the purpose of that is in the Bill. What do you envision that being used for?
Amy Randall: Could you repeat which clause that was?
Q275 Dr Mullan: Clause 2(3). It says it may restrict the application of its provision—this is the code—from specified descriptions of victims and victims of specified offences. It sounds like you can say, “This is the code. Actually, we are going to say it does not apply to these particular victims and it does not apply to offence X.”
Amy Randall: I am sorry, we will have to write to you on that.
Q276 Dr Mullan: The other thing I want to ask about is the immigration protocol. We have had a lot of evidence that people feel very concerned that, while there is some sort of a safeguard during the pursuance of a prosecution that there would not be immigration action, it is not an absolute bar on exchange of information that may perhaps further down the line be used for the purposes of immigration offence prosecution.
Do you think that people are right to say that there should be an absolute safeguard and that, on the criminal side of things, when it comes to a criminal prosecution you should not under any circumstances be able to pass information to the Home Office for immigration detention purposes? If not, why not?
Tom Pursglove: At the moment, there is a discretion that exists for the police about whether to refer someone to immigration enforcement. You will recognise that I am a Minister who spans both the Home Office and the Ministry of Justice. This is an issue that I am mindful of. We have said that we will offer relief from enforcement while individuals are co-operating with the criminal justice system or seeking to regularise their status in the United Kingdom and co-operating around that.
There is a commitment to publish a protocol governing this by the end of August. My understanding is that that work is on track, and I hope that that would give the comfort that you and others who I know have been giving evidence to the Committee are seeking about how those matters are handled. I think it is right.
Q277 Dr Mullan: I do not think it necessarily does because the point people make is that, if someone comes forward for the purposes of pursuing a criminal complaint, the information they give over to the authorities, while it might not be used while the prosecution, as you have just said, is ongoing, could be used afterwards.
I am very pro-immigration enforcement, but if that information were otherwise not in the possession of the state but for a criminal complaint, would it not be reasonable to suggest that the state should not make use of that information? It does not create any perverse incentives because it does not stop immigration officials from getting information from other sources and pursuing an immigration offence. It is just saying that information that the state gets hold of in the pursuit of prosecuting people should be kept separate from the rest of the flows of information. You are talking about a hold on prosecution action, which is not quite the same thing as saying the information should be kept separate permanently.
Tom Pursglove: If there are specifics that you want us to consider as part of that ongoing work at the Home Office, we are very happy to do that. I think this protocol will strike the right balance. Clearly, it is right that people have that protection while they are involved in the criminal justice system. It is right that if people are trying to do the right thing in terms of regularising their status that protection is afforded. We would not want to create an adverse situation where people claim to be victims of a particular issue in order to try to work their way around appropriate immigration enforcement.
This has to be handled properly and we have to be really mindful of the circumstances of individual cases. I am conscious of the sensitivity of the issues that we are talking about here and the need for this protocol to be got right. If you have specifics or there are particular examples that have been raised with the Committee, I would be very happy to look at those and see if we can—
Q278 Dr Mullan: I recognise that perverse incentive, and I completely agree that we need to make sure it does not create one. As I said, the argument that people would make is that you can do it in such a way that would not prevent immigration enforcement from other sources of information from continuing at the same time as you keep that bit of information separate.
Q279 Chair: There is one other thing while we are talking about consultations and so on. You have talked about how there will be a consultation on amendments to and restrictions on the code. Given the seismic importance that you attach to putting this into law, why will the regulations that cover the code be dealt with by the negative rather than the affirmative procedure?
Tom Pursglove: We have consulted beforehand of course, and we have been through a consultation process. There has been plenty of opportunity for—
Q280 Chair: You are now going to make regulations on the code. The code will be covered by regulations, will it not? Those regulations will be introduced using the negative rather than the affirmative procedure. I am just asking why.
Amy Randall: We can write to you with further detail.
Q281 Chair: Is that not a basic thing to know?
Amy Randall: We will have consulted and published a draft code ahead of laying those regulations, so there will be ample opportunity—
Q282 Chair: Ministers will have been advised as to which procedures to use, I imagine. You will have taken a decision, Minister, as to whether to use the negative or the affirmative. What is the basis for the decision?
Tom Pursglove: I would go back to the point that has just been touched on. Of course, the intention, as I have set out, is to set the entitlements out alongside the passage of the Bill for Parliament to consider, debate and reflect on. I will very happily, again, take away the Committee’s view that you think that we should perhaps handle that regulation-making process in a different way, but I am confident that there will be plenty of opportunity for Parliament to have consideration and to have the opportunity to debate those regulations. Having been through a consultation process and having been through this pre-legislative scrutiny process, I would not want any undue delay coming in that would mean getting on and doing this, but I am happy to consider the decision.
Q283 Chair: You are basically saying it is a delay point. I am just trying to understand your rationale.
Tom Pursglove: It is more than—
Q284 Chair: That will help us to decide whether or not we want to recommend you to do something different.
Tom Pursglove: I will repeat what I said. I am satisfied that there will have been quite a lot of parliamentary scrutiny in and around those entitlements.
Chair: Okay, understood.
Q285 Karl Turner: Minister, the Bill states that victims should have the opportunity to make their views heard. I do not think that is particularly politically contentious. We all want victims to be heard and we want their views to be heard, but how does the Bill enable them to do that without affecting due process?
Tom Pursglove: I appreciate your broad support for the principle of helping victims to make sure that their views are heard. I would argue that the whole package of measures that we are introducing is geared towards better achieving that outcome, and we have touched on many of the reasons why already. I think you are touching here on the involvement of victims being able to speak with representatives of the CPS prior to a case coming to court.
Q286 Karl Turner: Or indeed after, when decisions perhaps are changed. What involvement and at what point is my concern. If a charge is changed, there is a discontinuance of a case, or there is a decision to be made on bail, are the victims to be spoken to at that point, or is it just in the corridor, in the concourse of the courtroom, that a CPS lawyer instructed perhaps by the CPS, a barrister, has to go away and speak to a victim at that point? At what stage is what I am asking.
Tom Pursglove: There have been issues raised about concerns relating to victims being engaged with and feeling that they are somewhat disconnected and distant from the process, which I know we are all troubled about. That is why we have this ongoing dialogue with the CPS to talk about what more we can do to ensure that victims feel that they are properly engaged with, that they feel that their position is understood, and also that they understand what the next steps are in relation to their case. That is really important because, particularly where we are talking about high-harm, high-volume offences, the impact of those events is profound. The more certainty that you can give around the process and where the process sits and what the next steps are, the better it is. We are currently engaged in that dialogue. That is a picture that is evolving at the moment, but, of course, as soon as we are able to say more, we will do that at the earliest opportunity.
Q287 Karl Turner: I am grateful, Minister. You must have an idea of in what types of cases you expect there to be this very direct, very personal interaction between a CPS lawyer, or indeed an official of the CPS, and a victim. What types of case are you envisaging?
Tom Pursglove: What we are talking about here is rape and serious violence, but we are stilling working through this, as I said.
Q288 Karl Turner: Can I ask you about the financial resources? We have had evidence from the CPS, the chairman of the Bar Council, and, indeed, JUSTICE earlier today. As I understand it, the CPS is suggesting that £90 million will be required in order to do what you are expecting them to do in this Bill. Have you had any discussions with the CPS about the numbers required in terms of extra financial resources? What discussions have you had with the Treasury, if any, about that?
Tom Pursglove: Those discussions are ongoing at the moment at official level. I am not going to speculate about the sorts of sums of money involved or, precisely for the reasons I have set out, where we may get to in a financial destination on what this precise element of the policy looks like. What I can say is that, rather like we are doing in relation to the other aspects of this Bill and the wider victims package that we are putting in place, that will be properly resourced, but I cannot speculate here today about the precise nature of that figure.
Q289 Karl Turner: It will be properly resourced, as you have said.
Tom Pursglove: I am very clear on this. If we are going to do this, it has to be done properly. This is so crucial for victims of those high-harm, high-volume cases that to not do it properly would be doing those individuals a disservice, and I personally could not live with that.
Q290 Karl Turner: That is very good to hear, Minister. There is a concern, I have to tell you, that there is a potential for over-promising and badly under-delivering here, so I am grateful for what you have said to the Committee.
Tom Pursglove: That is why I think it is right that we take care to work through this and make sure that we get it right, and that we are clear about what that then means when we are in a position to announce the finer detail.
Karl Turner: Thank you, Minister.
Q291 Chair: That is helpful. Can I come to clauses 6 to 8, if I might, Minister, please? That is dealing with the commissioning of support services. I have a few questions about that.
In the Domestic Abuse Act 2021, there is a legal duty on relevant statutory agencies to provide accommodation-based services for reasons that are well known. You have not gone down the route of putting a legal duty on the statutory agencies to provide the community-based services in this case. What is the reason for adopting a different approach? Can you help me? What is the rationale behind that?
Tom Pursglove: We think that the collaboration duty that we have set out in the context of this Bill strikes the right balance in that there is a broad range of organisations involved in commissioning, and the landscape is actually quite complex. Again, it varies from area to area as to precisely what the needs are and how those needs are best met. Our argument runs that we think that it is best to intelligently meet the needs particularly where high-harm offences are involved, and through that collaboration involving local authorities, police and crime commissioners and integrated care boards, I would argue that we are helping to facilitate that decision making and helping for that to be resourced through the increased victims funding that we are making available and through the multi-year funding settlement, which is outside the Bill but is materially relevant and runs at £460 million over the next three years. Those commissioning decisions will be made at a local level. Again, and I want to make this point, it is important that as part of that work the sector is able to help inform the conversations to make sure the provision is right.
Q292 Chair: Okay, fair enough. The duty to collaborate is limited to victims of domestic abuse, sexual offences or serious violence. Do you think there is a danger that that is perhaps too restrictive and that you could find inevitably, because of the concentration on them because that is what is required, that other victims who may also suffer significantly will be pushed to the margins somewhat?
Tom Pursglove: No, I do not agree with that. It is right that we highlight and focus on those three particular areas because we recognise that there is a need to have that collaboration to improve outcomes. Clearly, local commissioners are able to meet other priorities and meet other victims’ issues in the usual way, drawing on the funding that we provide as Government. I am conscious too that to a certain extent there are challenges around ringfencing funding in that being prescriptive is not always helpful. We think that that risk is outweighed by the need to drive that improvement through the collaboration that we are highlighting in relation to those three particular areas; but it will be, as is now, for local commissioners to decide what the particular needs are in their area and then to meet them. Clearly, crime types, crime profiles and what is going on in particular areas will undoubtedly continue to dictate that work.
Q293 Chair: Are you envisaging child victims of domestic abuse being in the duty? There is an abusive home. There may be direct crimes against the mother. There may not be a direct crime against the child, but they witness it, and they are perhaps as much a victim of that.
Tom Pursglove: I can give you a really simple answer to that, which is yes. I know there have been some issues raised about this. Again, I would like to give the reassurance that children will be covered, but, if there are discrepancies that organisations feel are out there or this Committee feels are out there, we will deal with them.
Q294 Chair: That is very helpful. Would you be willing, if you have not already, to look at education and children’s services in the duty to collaborate?
Amy Randall: The reason why we have chosen the services that we have is that they are organisations like commissioned services, and that is why we have not gone further to look at education providers. It is not about commissioning services. That is how we have reached the conclusion there.
Q295 Chair: Can you envisage circumstances where you might want to involve the education services that may be supporting a child victim under such circumstances?
Amy Randall: Certainly, in terms of the consultation, the duty to collaborate only lists certain organisations, but, obviously, it can go wider where relevant.
Tom Pursglove: I would hope that those involved in commissioning will want to engage as far and wide as possible to make sure that those needs and those interests are heard, because there is a lot of experience to be drawn upon and that needs to be reflected.
Q296 Chair: You are clear that you want to cover child victims in the Bill.
Tom Pursglove: Yes.
Q297 Chair: That is extremely helpful. Even though it is not explicit at the moment, that is the way you want it to work.
Tom Pursglove: Yes. Child victims are included in this Bill.
Q298 Chair: Okay, that is very helpful. Some of the evidence we have had suggests that, when you deal with what are sometimes termed the “by and for” service providers, it is quite difficult sometimes for people to navigate, and the providers themselves who want to do the job can find it quite hard to compete in the marketplace. The commissioning arrangements require quite a lot of form filling and bureaucracy that may be quite tough for some of the smaller-scale groups perhaps in the charitable sector and voluntary groups and so on. Is there anything that you think the Bill does to help people like that?
Tom Pursglove: It is fair to say that “by and for” services already commission services in local areas working with local commissioners. Clearly, that reflects decision making in those communities about who is best placed and what services are most needed to meet particular needs.
I will go back to this point because it is crucial in all this. I would want those responsible for commissioning, including through the duty to collaborate but also more generally, to be having proper co-operation, communication and dialogue with “by and for” services as part of that to work out what it is that they are able to do to be ambitious about the support that is provided. This is a point that I would certainly be very keen and willing to take away to look at as part of our guidance process to see whether we can get that explicitly included.
Q299 Maria Eagle: We had the benefit of a roundtable yesterday with some of the “by and for” providers. There was a general concern that regional commissioning does not work for the “by and for” sector, and there was some thought that a national pot is needed. It is not just the issue about their own capacity to apply properly in a way that is compelling to those who are commissioning services, but also that they can often be marginalised and seen as not as important as the general commissioning of services that perhaps do not suit the clientele that they are focused on, the “by and for” services that perhaps are not accessible if they are disabled people or that perhaps do not quite provide the same level of service. Do you have a strategy that will deal with that issue? Is there going to be a national pot?
Tom Pursglove: I cannot give you a positive answer on a national pot at this point, but I can say that the Bill requires commissioners to take proper account of and consider the needs of those with protected characteristics when delivering services, and to engage properly and consult with certain people when developing their commissioning strategy. I see that as being integral to the particular point you have just put to me in addressing that directly, which is a Bill measure.
Chair: All right, that is useful. Thank you very much.
Q300 Dr Mullan: I want to ask you a question about the role of the Victims’ Commissioner, who, at present, has a remit to keep the operation of the code under review. While I understand why you might seek to ensure that local PCCs have a similar duty and to drive local improvement, et cetera, it seems a bit odd to remove that operational review at a national level from the commissioner, who is perhaps the only one who has that national voice and ability to amplify concerns that are affecting all regions of the country consistently.
Tom Pursglove: I hugely value the role of the Victims’ Commissioner, and I very much see it as a role that I would like to have even greater national prominence than it does now. Democratically elected police and crime commissioners should be accountable to their electorates for not only the police but also the provision of victims’ services.
Going down the route of saying that police and crime commissioners should lead on this work in their areas, should be making sure that data is correctly collected and is best able to target where the needs are, where the challenges are, and what work needs to be done to improve the situation of victims, is crucially important. It gives that local focus in a way that is difficult for the Victims’ Commissioner to be able to do.
It is important for the Victims’ Commissioner to continue to have that very significant national role. I meet regularly with the Victims’ Commissioner to talk about various issues, as do other Ministers in the Department. There is a particular role for the Victims’ Commissioner to help us to make the right decisions, when it comes to interventions nationally and when it comes to these new accountability structures, to target where we think a joint inspection would be of value and to then see that through. This, to me, is about continuing to promote the Victims’ Commissioner role, but having that local accountability, with what I would argue is an emboldened, boosted national arrangement in place.
Q301 Dr Mullan: Can they not do it in conjunction with the PCCs? Who is going to amplify victims’ concerns at a national level and draw Ministers’ attention to themes across different PCCs when it comes to the victims code if the Victims’ Commissioner does not have a remit to do that?
Tom Pursglove: I am pretty sure that the Victims’ Commissioner will continue to raise issues that come up, whether they are more systemic national issues that need addressing or whether they are more localised issues that come to their attention. I do not have any doubt about that. I am sure that that advocacy will continue as it does now.
We just think that the new structure where the local feeds into the national, with proper accountability at the local level, is a better approach in getting to grips with the nitty-gritty of the challenges that exist and making sure that victims can access the support that they need with those appropriately commissioned services and making sure that complaints are being dealt with expeditiously. There is a view that has been expressed, and I am sure that you will have seen this in your evidence too about victims’ champions in local forces. That is something that some force areas have done and they believe is particularly helpful in addressing victims’ issues, so there are different ways of doing this. With the resources that the Victims’ Commissioner has, having that national focus is where that input is best targeted to help us really get to grips with the challenges that exist.
Dr Mullan: Okay.
Q302 Chair: Thanks very much. The final thing I want talk about is clause 12, if I may, which relates to the role of the inspectorates, Minister. In clause 12 you specify Ministers’ power to direct regular thematic inspections. The suggestion put to us by the inspectorates is that it changes the balance, and that, in effect, it potentially sits uncomfortably with their independence. How do you reconcile that?
Tom Pursglove: Can I just make one more point about the Victims’ Commissioner because it was remiss of me not to say this?
Chair: Yes, sure.
Tom Pursglove: It occurred to me the moment I stopped speaking and you came back in. A significant change is the fact that the Victims’ Commissioner’s annual report will be laid in Parliament going forward, and there will then be a requirement for the agencies to respond to and to properly take account of the issues, the recommendations, the concerns, the criticisms and the scrutiny that the Victims’ Commissioner is bringing forward. That is a significant improvement on where we are now, and that speaks to that national role in a very helpful way.
On the point about joint inspections, it is right to raise the issue about balance, and the Committee is right to scrutinise that. This is not actually, though, a new departure in the sense that I understand that the Home Secretary at the moment is able to direct HMIC in a way that is very much in keeping with what we are proposing here. I do not think there is a particularly significant departure that we are seeing here. It is in line with what has happened previously. We just think that it is right that Ministers who are accountable to Parliament, given the importance that we place on victims’ issues where those issues arise, where we are concerned, where parliamentarians are concerned, where the Victims’ Commissioner is concerned, and where things become apparent in the public sphere, ought to be in a position where we can direct the inspectorates to look into that, to dig into it, and to find out what is going on, so that we can then put that right and make sure that we improve matters.
Q303 Chair: But no interference in the way they actually carry out the inspections.
Tom Pursglove: This is about directing them to look at a particular area, but it is not about us trying to be prescriptive about how they must do that or what the outcome must be, because that, of course would lead to a problem.
Q304 Chair: That would destroy the point.
Tom Pursglove: Yes. We are inviting their input is the way I would describe it.
Q305 Chair: Fair enough. That is helpful. Thank you for putting it that way.
Unless my colleagues have any questions, Minister, and Ms Randall, thank you very much for your time. We have covered quite a lot of ground. You have very kindly indicated a number of topics on which you will come back to us, so we look forward to hearing from you on that. The sooner the better because then we can get a response to you.
Tom Pursglove: We will be on the case. Likewise, can I just thank the Committee for the work that it is doing? If there are any issues that arise subsequent to the meeting I will be very happy to come back on them.
Q306 Chair: That is most helpful. We are very grateful for that. We are grateful to you for your time and your trouble.
Tom Pursglove: Thank you.
Chair: This session is concluded.