Oral evidence: The work of the Ministry of Justice, HC 869
Tuesday 30 November 2021
Ordered by the House of Commons to be published on 30 November 2021.
Members present: Sir Robert Neill (Chair); Rob Butler; Janet Daby; James Daly; Maria Eagle; Laura Farris; Kate Hollern; Paul Maynard; Dr Kieran Mullan.
Questions 1 - 106
I: The Rt Hon Dominic Raab MP, Lord Chancellor and Secretary of State for Justice and Deputy Prime Minister.
Witness: Dominic Raab.
Q1 Chair: Good afternoon and welcome to this session of the Justice Committee. Welcome, Lord Chancellor. It is very good to see you.
Dominic Raab: Thank you, Mr Chair.
Q2 Chair: It is your first time in front of the Committee since your appointment. Congratulations on that. We look forward to working with you as we have with your predecessors.
Dominic Raab: Thank you very much. It is a pleasure to be here.
Chair: We will briefly declare our interests, as we have to every session. I am a non-practising barrister and a former consultant to a law firm.
Maria Eagle: I am a non-practising solicitor.
Rob Butler: Prior to my election, I was a non-executive director of HMPPS and a magistrate member of the Sentencing Council.
Laura Farris: I am a practising barrister.
James Daly: I am a practising solicitor and a partner in a firm of solicitors.
Dr Mullan: I have a close family member who is a serving police officer.
Q3 Chair: I think that covers it. Shall we start? This is a genuine question. How best and properly should we address you under these circumstances? Is it Deputy Prime Minister, Lord Chancellor or Secretary of State?
Dominic Raab: I will leave it to the Chair’s discretion. I am very relaxed.
Q4 Chair: Okay, that is helpful. We will start with Lord Chancellor.
The reason I ask, Lord Chancellor, is a serious point because the Lord Chancellor’s position, as you know—in fact, you referred to it when you were sworn in and in your speech at the opening of the legal year—is a unique one under the Constitutional Reform Act and the oath that the Lord Chancellor takes, and their statutory responsibility to defend the interests of the judiciary and the legal profession, does not apply to any other departmental Minister. When you took on the role as well of being Deputy Prime Minister, did you perceive any potential risk of conflict between being Deputy Prime Minister, the number two in the Executive, and the particular responsibility that the Lord Chancellor, unlike anybody else, has?
Dominic Raab: No, I do not. In effect, if there is a tension, it is inherent in having two roles as Lord Chancellor and Secretary of State. Given the cross-cutting nature of much of our work—the RASSO review is a good example, and I am sure we will talk about it—and to the extent that there is some additional co-ordinating or convening power or influence that comes with the DPM role across the wider criminal justice system brief, I think it is helpful.
Q5 Chair: How is that wider convening role that you have working in practice? I know that you are keen to do more of that.
Dominic Raab: There are Committees of Cabinet that I attend as DPM that are unrelated to the Justice brief. The PM has indicated he wants me to drive forward things with a cross-cutting nature—VAWG, the rape review, and I think you could probably look at the pandemic recovery. It is anything that impinges on the three critical agencies and sectors of the criminal justice system, which include, to my mind—there are probably others—the police, the CPS and the courts and tribunals. That is a good example. Certainly, getting Ministers and Law Officers together, and being able to have a safe space for proper challenge that you might not do outside a confidential setting, is valuable. Perhaps it helps in that respect.
Q6 Chair: That is helpful. In weighing your responsibilities, does that mean you have to spend a certain amount of time in No. 10 and the Cabinet Office as opposed to in the Ministry?
Dominic Raab: Inevitably, but it was the same when I was Foreign Secretary, and it is manageable. I have an exceptional group of civil servants around me, as well as special advisers and PPSs and what have you, so I am not lacking for support.
Q7 Chair: I understand that. There has been quite a churn among the responsibilities of the junior Ministers as well. That is not a criticism; it is a statement of fact. Does that worry you sometimes in the way we do government—the frequent changes of junior Ministers?
Dominic Raab: It is a challenge, isn’t it? It is a balance. We have an exceptional junior ministerial team. The combination, for example, of Vicky Atkins doing not just the prisons side but the VAWG side as well is crucially important. That is a good example. Vicky has ongoing responsibilities in relation to the Afghanistan resettlement programme, which touches on Home Office and DLUHC. We already have Tom and Kit who are cross-cutting. We are working in a more collaborative and integrated way than ever before. You have to lean into that. If you have two separate Departments, you have to try to find a way to knit them together. That will depend a bit on the personalities. Cross-cutting portfolios help.
Q8 Chair: You mentioned very briefly the Afghan resettlement programme. You will know that the particular issue of female judges and prosecutors was raised a number of times. I know you are seized of it personally, and your Ministers have been. There is concern that the scheme has not yet been fully operationalised. Where are we going on that? There is always the fear that, after the initial horrors of what happened after the fall of Kabul, these things can go off the agenda.
Dominic Raab: By the time I left the post as Foreign Secretary, there had been a total of 17,000 since April who had been either evacuated or provided safe passage out, including British nationals, ARAP scheme and others, which included the so-called special cases, some of the categories you have mentioned. If you want an up-to-date stocktake, you need to speak to Vicky or one of the other Secretaries of State.
Q9 Chair: We will do that. I mentioned it because your predecessor as Lord Chancellor was very active in making sure that the issue of the female judges and prosecutors was kept at the forefront of other colleagues.
Dominic Raab: He was very active, and I was very receptive as Foreign Secretary.
Dominic Raab: I think that is important.
Q10 Chair: We can continue to keep that pressure up.
Dominic Raab: Absolutely.
Chair: We are grateful for that.
Q11 Maria Eagle: Congratulations on your appointment, Lord Chancellor. Which Cabinet Committees do you chair, since being appointed Deputy Prime Minister, in that role?
Dominic Raab: Normally, you would expect the Prime Minister to chair the Committees. I sit on the National Security Council, the Global Britain (Strategy) Committee, and the Government Priorities Delivery Committee, where I have a specific remit to try to drive delivery across Government. I sit on the Crime and Justice Taskforce, obviously. When we have meetings between the ones the PM chairs, I chair them. I sit on the Domestic and Economic Implementation Committee. I am also the deputy Chair of the Domestic and Economic (Strategy) Committee. They are all important, but that is the one particularly focused on the economic and domestic reform agenda. I have a particular remit there.
Q12 Maria Eagle: Could you clarify for us—you do not have to go through it this minute—which ones you chair in your role as Deputy PM, which ones you attend as Deputy PM, and which ones you chair when the Prime Minister is not chairing? I am trying to get at what you are doing as Deputy Prime Minister instead of him when he is not available.
Dominic Raab: As I said, formally, I not only sit on but deputise in relation to domestic and economic strategy. That is a formal arrangement, but I can deputise on an ad hoc basis whenever asked by the PM. The Crime and Justice Taskforce is an obvious one as Justice Secretary, but also DPM. There will be other things where, from time to time, I am asked to play a convening role.
Q13 Maria Eagle: I know that when he was ill in hospital you chaired Cabinet. Have you chaired the Cabinet in his stead since your formal appointment as Deputy PM?
Dominic Raab: No, we have not had a commensurable situation, if I can put it like that.
Q14 Maria Eagle: Thank goodness. But you would be the person to do that, if he were off on a trip somewhere or whatever and not available to chair the Cabinet, in your role as Deputy PM.
Dominic Raab: There are two different issues, aren’t there? There is one if he is incapacitated, in which case what happened was that the arrangements were run by the PM before he was, for want of a better phrase, out of action. If he was going away on leave, we would settle the arrangements before. The truth is that, if it was a foreign trip, I suspect the scheduling of the meetings would be done around that agenda.
Q15 Maria Eagle: No former Deputy Prime Minister has also been the Lord Chancellor and Secretary of State for Justice. Do you consider that there are any constitutional issues arising out of your being the Deputy Prime Minister, particularly your role as Lord Chancellor in protecting the independence of the judiciary and the rule of law? You, in fact, as the most senior person in the Executive if the Prime Minister were doing something else, may come into conflict with that. Do you see any circumstances in which that might happen and in which you get placed in a difficult position?
Dominic Raab: I would obviously be very careful to guard against that risk. Actually, the upside for the judiciary is considerable, and the feedback I have had is that they feel very comfortable with the arrangements.
Q16 Maria Eagle: I do not know how true this is, but at the time of your appointment you were reported as being demoted from the Foreign and Commonwealth Office. I know that the newspapers say these things about reshuffles. You were also reported as fighting hard for the title of Deputy Prime Minister. Is that true? Why, if it is true, did you fight for that description of yourself, for that role as Deputy Prime Minister?
Dominic Raab: I do not think any of that sort of reporting is accurate, but you would not expect me to comment on conversations I have with the Prime Minister on those matters.
Maria Eagle: Okay, that is all. Thank you.
Q17 Chair: Fair enough. I understand that. Coming back to some specifics, if I might, one of the things that the Government’s manifesto, on which they were elected, referred to was an updating of the Human Rights Act. I know you referred to that in your speech to the Conservative party conference as well. You have written about the subject before, in 2009, in your book “The Assault on Liberty”, which I have read. Against all that background, can you give us a sense as to what an updated and changed Human Rights Act might look like?
Dominic Raab: Let me give you a few principles. I am keen to consult on this, obviously, so there will be plenty of opportunities to go into the detail. I envisage consulting on it relatively soon, but it is important to get it right and not rush it.
There is in my mind a clear argument for remaining within the ECHR on all sorts of principled and practical grounds. I think that some of the arguments, or speculative arguments, about removing the ECHR would not necessarily solve the problems that they are often aligned with. Having said that, there is a very strong case for an overhaul of the procedural framework of the Human Rights Act; to give you a sense, sections 2 and 3 in particular, clarity around the separation of powers and the independence of the judiciary, but also respect for the democratic prerogatives of Parliament.
We can think of the way section 3 operates. While there will be some limits, given what the ECHR requires, we have seen a number of areas where the UK courts’ licence as a result of the Human Rights Act has gone further than the convention anticipated, and, in some cases, in relation to Strasbourg case law. To give you one example, the case law around article 8 and the right to family life in relation to deportation is something where the UK courts, particularly over the 10 or 15 years leading up to about 2015, but even some of the cases since, went considerably further than the Strasbourg court.
There is a strong case in relation to border controls more generally, when you are dealing with qualified so-called derogable rights rather than non-derogable rights like article 3, for setting out a much clearer framework. I would need to get the up-to-date data, but I am very confident that the lion’s share of appeals that are successful against deportation by FNOs are article 8 rather than the kind of article 2 or article 3 cases that engage either the right to life or the absolute prohibition on torture. It is quite a good example of how you could deal with two thirds of the challenge we face if we dealt with that. That is something we can deal with by revising and overhauling the Human Rights Act without impinging on the ECHR.
Q18 Chair: Okay, that is very helpful. We know that the independent Human Rights Act review panel under Sir Peter Gross has delivered its report to you, and you indicated that you want to consult. Will Sir Peter’s panel’s report be part of the basis for that consultation?
Dominic Raab: Absolutely. First of all, I thank Sir Peter and the panel. They did an exceptional job. I have met him twice. I want to publish that report as soon as we can. It makes sense to do it broadly at the same time as we consult on our overhaul of the Human Rights Act.
Chair: Thank you.
Q19 Kate Hollern: The review was carried out in a two-month period, which seems very short to me. It leads me to think that perhaps you already had some clear examples of where the court system, through the rights, needed changing. I accept the case you gave about the right to family life in a particular case. Can you give me some other examples of where court judgments have been misused?
Dominic Raab: Sure. Let me give you two areas where there is a case for reform that engages the HRA. One is the Osman rulings, which date back to a case from the 1990s. It is a good example, in my view, of the folly of allowing sensible matters that would be determined at a policy level, or at an operational level by police forces, to be turned into individually, judicially enforceable, universally applied human rights. The Osman rulings come from a very heartbreaking case. Effectively, the net upshot is that police have to issue threat to life notices to individuals who are at risk of serious harm. Ordinarily, you would think that that was right. The challenge is that if it is applied universally what you will see, and I am looking at this very carefully at the moment, is police forces finding that a significant chunk of their time is dealing with threat to life notices for those who are engaged in serious and organised crime.
There is a very good question about whether policing priorities should be determined by a piece of precedent that has not taken into account the other priorities that will be displaced as a result. I have written about this in the past. I wrote about it in the book you mentioned. The reason I mention it is that I think it is still a very live issue. That is the kind of thing that shows that we can revise and overhaul the Human Rights Act in a smarter way without touching on the quintessential, or core, fundamental rights that few people would argue with in relation to the convention, certainly as it was conceived in the aftermath of the second world war.
Q20 Laura Farris: Thank you very much, Lord Chancellor. I have a couple of questions also on human rights, specifically around article 8 rights and deportations. It is correct to say that after 2015 the approach of the courts changed. When I was preparing for this, I refreshed my memory. I looked at a recent case in the Court of Appeal, AM (Somalia), which was quite a high-profile case about the deportation of a repeat offender back to Mogadishu, Somalia, a country that he had left as a child and had never been to before. I want to pick out, because it went through the authorities, the principle in the case.
The court “should give appropriate weight to Parliament’s and the Secretary of State’s assessments of the strength of the general public interest in the deportation of foreign offenders...the critical issue…will generally be whether, giving due weight to the strength of the public interest in the deportation…the Article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed—very compelling…will succeed.”
In that case, neither the fact that he had a very young daughter, the fact that he had lived almost his entire life in the UK nor the fact that he had never been to Mogadishu was sufficient to give him an article 8 right to remain. Do you think the primary issue is the misapplication of article 8 or the length of time the FNO can spend appealing cases before they get to that point through three or four appeals, or the fact that when the court reaches a decision there is a still a delay before they are deported at all and sometimes they manage to avoid deportation further on?
Dominic Raab: First of all, Laura, it is certainly true to say that the case law on this has ebbed and flowed. One of the interesting things, looking at it again since 2016 when I last worked on it, was that we have seen a significant shift in the approach, particularly recently, of the Supreme Court. We can think of particular cases. This is certainly not a critique of the Supreme Court or, indeed, its current crop of excellent serving judges. At a general level, the point can be made that it ebbs and flows, but precisely because what ebbs may flow, there is a case for codifying it.
Secondly on article 8, the case law recently has been quite mixed. I can think of cases like the one you mentioned, but there are other cases that go the other way. The one that strikes me was the AP case where a convicted drug trafficker—forgive me if the facts are not 100% accurate, but this is broadly the case—was also convicted of battery of his partner. He did not pay child maintenance, but he relied on his right to family life to frustrate the deportation order.
The public find that kind of stuff perverse. In fairness, that was before the most recent legislative change. One of the things we will explore, and I think the consultation is a good opportunity to explore, is what proportion of the cases of FNOs—serious offenders—frustrating deportation orders are still article 8 claims. There is a world of difference between an article 8 claim and an article 2 and article 3 claim. The short answer to your question is a bit of all the three points of concern that you raised.
Q21 Laura Farris: It is probably agreed between us that the 2014 Immigration Act made a difference in the deportation of FNOs. Do you think that there is any merit in primary legislation or secondary legislation that sets out in more detail what should or should not be considered in an article 8 claim? Is there anything to stop the Government, and indeed Parliament, saying, for example, typically the fact that they have a child and they are an FNO should not be a compelling reason under article 8? Could the Government not assist the courts to reduce the length of time these appeals take?
Dominic Raab: Absolutely. There is no point in us as elected lawmakers sitting here complaining about the human rights framework when we have a chance to do something about it.
Laura Farris: Yes.
Dominic Raab: There are two particular opportunities. The Home Office can provide legislation that goes into the detail, as indeed was the case in 2014 with the balancing act that was put in place. I think I am on record as saying at the time that if you create a balancing act you are still weaving in the licence to interpret in a very elastic way.
Q22 Laura Farris: You could go further.
Dominic Raab: You could go further. You could do it in Home Office legislation, and that is the prerogative of the Home Secretary. The human rights framework that we have could do it in a broad way. That is certainly one of the things I am looking at.
By the way, it is not all about trying to make sure that we have greater latitude in either Parliament or the Executive. There are other areas where we ought to be even more pro-freedom. I have talked about freedom of expression and freedom of speech in the past. There will be certain areas where we want to have the latitude to take robust action. I think of threats online and I want to be clear about that.
The sense that the scope for free speech and democratic debate has closed in a little bit in recent years—a combination of various different things—is something we should look at. One of the quintessentially British traditions is freedom of speech—the freedom that guards all the others. There is a good case not just for looking at the areas where we think it has been too expansive but looking at areas where we think, “Hold on, there is a core issue here. Freedom of speech is what we are all about in this country, subject, of course, to terrorists, paedophiles and the online harms piece. We must protect that space.” To be clear, there is some balance to the work we are doing, and it is not all one way in terms of qualifying and preventing the elastic expansion of rights.
Q23 Dr Mullan: I am going to ask you some questions about the Parole Board and life sentencing. Do you think there is a good understanding among the public of the difference between a life sentence and a whole life tariff?
Dominic Raab: I am not sure. I have not seen polling on it, but I suspect not. I suspect that most people think that all life imprisonment is a whole life tariff. That is my hunch. I have not looked at the detail on it.
Q24 Dr Mullan: I have not seen any polling either, but my experience is similar to yours. Do you think the media report it and make those distinctions? I think of examples like the BBC news talking about someone getting life in prison when they actually got a life sentence.
Dominic Raab: Don’t drag me into criticising the media. It is the devil’s own job. The legal stuff is very complex. I am not surprised that there are popular misconceptions. It is a complex area.
Q25 Dr Mullan: I use the example of the case of Elsie Urry whose three children were killed by David McGreavy. I remember her talking about the fact that she thought the only thing that brought her comfort was that he was on a whole life tariff. I note Sarah Everard’s family made a similar remark; one of their few comforts in that situation was that he was going to get a whole life sentence. Do you think the public are reasonable to wish to see people on whole life tariffs over life sentences more often?
Dominic Raab: You could get into a bidding war with the public for how tough you can be on sentencing.
Dr Mullan: Objectively.
Dominic Raab: It depends on the case, Kieran. I am sensitive to it. We just increased the sentencing for causing death in relation to child cruelty. We did the same in relation to Harper’s law. You have to look at the specific considerations that affect each. There is a case for tougher sentencing in this country. That is why in the PCSC Bill we have ended the halfway automatic release for dangerous sexual and violent offenders.
Q26 Dr Mullan: Yes, I note all those changes, all of which I am hugely supportive of. Do you think there still remains a significant gap between what the majority of the public might like to see for very serious offenders and what we tend to give them?
Dominic Raab: In the absence of seeing polling, I cannot answer the empirical question, but I think the public want justice to be firm but fair, and I would support that.
Q27 Dr Mullan: Moving on to questions about the Parole Board, you will be familiar with the recent case of Colin Pitchfork.
Dominic Raab: Yes.
Q28 Dr Mullan: Without being able to comment on the specifics of the case, can you understand why there will be public concern about one of the most serious offenders being released and so quickly having grounds to be recalled to prison?
Dominic Raab: Yes.
Dr Mullan: That leads on to what you—
Dominic Raab: In one sense, I hope people would feel at the same time at least partially reassured that he is back inside, and that suggests that the radar and the tripwires that are put in place were effective. I appreciate it will also beg the question of whether he should have been released in the first place.
Q29 Dr Mullan: I think it is the proximity to the release that might lend it more towards the latter concern than the prior one. In your reforms of the Parole Board, is the work being done in an internal review that is just for ministerial consideration, or are there plans for reviewing the Parole Board?
Dominic Raab: When you come in as a new Secretary of State, you want to look at it very carefully. I have some very clear views as to what should happen. I want to get it right, not quick. I am not going to disclose the direction of work because I do not think that is particularly helpful. I have no criticism of the Parole Board in terms of the criteria that it works to and the legal framework. If you look at it at the moment, particularly for the high-risk, severe cases—of course, there is a whole load of work that the Parole Board does that does not really touch the public’s consciousness—and cases where the question of risk is very finely balanced, one of the interesting things and issues that I want to address very squarely is that, effectively, the presumption drives in the direction of release unless it is demonstrated that there is risk. There is a good question about whether the presumption should be that way.
If you look at what we have been doing on climate change and environmental regulation, we talk a lot about a precautionary principle. There is a very good question about whether, in relation to the highest risk, it goes before the Parole Board. There ought to be changes that reflect that. We also need some humility because when you are measuring risk you can get many different reports going in trying to gauge it, whether it is from the social worker or those involved in the prison regime, right the way through the full spectrum. Measuring risk is inherently difficult and it is not a science. We have to be honest about that. That is what leads me to take a more precautionary approach. I suspect that is something that, to touch on your earlier point, the public would like to see.
Q30 Dr Mullan: That is interesting. One of the other things that we have looked at is IPP sentences. Some of the evidence we have heard is that that is almost living the precautionary principle; you have to prove that you are not going to reoffend, and that can create problems in the other direction when people who were originally given quite low sentences end up in prison for a very long time, long past their index sentence, because they are not able to prove that they are not a risk. Would you accept that that is a consequence and would you say that is what might happen and we have to live with it, or would it concern you?
Dominic Raab: There are different considerations. In truth, the IPPs have been reformed going forward, and we have an action plan for trying to strike the right balance. You are right that there is a risk, but I would also point to the fact that as of the end of September/beginning of October we were down to something like 1,661 IPP prisoners who have not been released. It was over 6,000 at its peak. It feels to me that, without taking risks, and by adhering to a more precautionary approach, you can strike the right balance.
Our job as a Government is to protect the public. In relation either to very dangerous cases or very high-risk cases where it is difficult to gauge the extent of risk after a considerable period of time in incarceration, we have to show some humility. It is incredibly difficult. I would prefer to err on the side of public protection. I say that about all of these kinds of cases.
Q31 Dr Mullan: Okay, that is a really helpful insight to one feature of reform. Are there any others that are fresh in your mind about what you see might change?
Dominic Raab: For now, that gives you a sense of my direction of travel. Of course, I want to look at it properly and consider, as you rightly say, all the implications.
Q32 Dr Mullan: Moving on to talk about Harper’s law, as you know, I am hugely supportive of the change. Can you articulate why you think that change was necessary?
Dominic Raab: There is a particular responsibility, in relation to unlawfully killing in the course of a crime an emergency service worker who is acting in the course of their duties, to mark the severity, the public opprobrium that goes with that, and, frankly, the fact that our emergency service workers know that we have their back at a very high level. On all of those principled and practical grounds, it was merited. I pay tribute to Lissie Harper and Andy Fiddler who led that campaign; not only was it very emotive but they were very constructive and very reasonable throughout.
Q33 Dr Mullan: The law has an exceptional circumstances element. Can you articulate perhaps an example or a couple of examples where you think that might be appropriate? I know it is all hypothetical.
Dominic Raab: I have looked at this very carefully. On the one hand, it is worth leaving the judiciary with a measure of discretion for the kinds of cases that we cannot predict. We wanted to avoid expectational circumstances being opened up, and it will only be truly exceptional circumstances. It is precisely because there is that measure of judicial discretion that I am not going to speculate on the kinds of cases it would cover. Fundamentally, when it comes to these kinds of things, we must trust our judiciary. We have the finest judiciary in the world, and we need as lawmakers to take responsibility when we think the framework is wrong. Whether it is sentencing or human rights, it is our job.
Q34 Dr Mullan: Did the Department do any modelling on what the impact might be either in deterrent effect or in increased sentencing in terms of the volumes of people who might be caught up in this?
Dominic Raab: Deterrence is inherently difficult to measure. In relation to impact on the numbers coming through, it would be quite difficult to gauge, but it is relatively modest. It will make a material difference, but I am not worried that it creates a prison capacity issue if that was the concern.
Q35 James Daly: Can I ask a quick question on the Parole Board? Some of the evidence we have taken, Lord Chancellor, and we completely understand why this is, is that probation officers are loading conditions on to people who are before the Parole Board. They are released with those conditions, which are onerous and may well be justified. They then breach the conditions and are recalled to prison.
There is a difference between compliance with a range of conditions that may be imposed out of semi-desperation and overloading, in the hope that the Parole Board will be reassured by that, and the actual risk of reoffending and harm to the public. We have at this moment in time people in prison because they are breaching conditions rather than because they are committing offences or there is any evidence that they are a risk. I know you are aware of that. What is your view on that situation?
Dominic Raab: James, feel free to send me some examples. I am really happy to engage on this. In fairness, the conditions are imposed either because they are part of the rehabilitation or reform plan, or precisely not to trip up an offender but to create flags or tripwires around risk. They do a fiendishly difficult job, and they do it very well, so I am very supportive of them. We are looking at this now. James, if you think that there are examples of conditions that set them up to fail, which I think is what you are getting at, please send them through. I want us to take a balanced approach.
James Daly: Thank you.
Q36 Laura Farris: Lord Chancellor, I would like to ask a few questions about VAWG and the rape review. There has been a lot written about this, so I am not going to cover the ground in those publications, but I want to ask questions that engage MOJ considerations.
Last week, the Home Affairs Select Committee, in a private session, heard from some barristers who acted in rape cases. One of the things that they told the Committee, which I want to draw to your attention and ask you about, was about victims withdrawing from the process. One of the reasons that was given was listing and judges reallocating cases when they get to the end of a week and realise that they cannot fit everybody in the next week. James Daly is also on the Committee.
We were told that where the defendant is already on remand those cases are prioritised, and if the defendant has, as is the case in most rape cases, because of the length of time, been released under investigation they are not prioritised. That means that a rape victim can quite frequently find there is a six-month delay—I see James nodding—because their case is kicked off and has been put in at another time, with the effect that they may well lose the barrister they have just developed a rapport with and have somebody else allocated to them. Were you aware of that? I know about the judicial preserve of listing, but is it something that you feel you could get directly involved in given the really important focus on getting rape cases into court?
Dominic Raab: First of all, I am aware of that concern. You hear different perspectives, if I can put it that way, from the different sides in the trials and in the cases. We need to look at that very carefully.
On the broader question of where the line is beyond which as Lord Chancellor and Justice Secretary I should not go for fear of impinging on judicial independence, that is a very good question. On the one hand, I would not want to interfere in any individual case. On the other hand, the generic efficiency of scheduling is something where I already have a sensible conversation with the senior judiciary, and I would be held accountable before your Committee and before Parliament. I would like to try to delineate with a little bit more clarity that line, but in a way that all sides are comfortable with.
I do not know whether this is a good opportunity, but more generally, in order to get prosecution levels back up to 2016 levels, a significant increase from where we were at the start of this Parliament, there are probably around seven things that will matter. The seven most effective levers that are likely to shift the dial are at the three critical stages—reports to police, charging, Crown court receipts and beyond. First, we are going to be publishing scorecards on criminal justice, but specifically on rape, both national and local. That transparency is important. I can see why it is sensitive territory for any agency that asserts operational independence, but I would have thought measuring trend data was a good way to see what is going right and what is not going so well in the pipeline. The localised and regional scorecards will tell us where it is going right geographically.
The second thing is the expansion of victim support to deal with the attrition you described, or alluded to. We have provided that, and we will have extra resource through the SR settlement. I am sure we will come on to that. That will be very important too, particularly things like the independent sexual violence advisers and the domestic abuse equivalents. The third bit is Operation Soteria and changing to the lion’s share of the scrutiny being on the accused, not the victim. There has been some great work done with the CPS and the police on the trials. The resourcing that the police and the CPS have secured is the next lever. Court capacity expansion is another one.
There are then two very interesting areas of very specific technical work that we need to do on the technology around digital disclosure, particularly mobile phones, but also third-party disclosure. I am clear in my mind that we need to look very carefully at section 28, which, as you know, is the capacity to have pre-recorded witness testimony from the victims of rape. We are trialling that in other areas as well.
If we are to achieve our goal, those seven levers are likely to be the most impactful, as well as all the cultural and other smaller things. I would be interested in the Committee’s view, if you think I have missed one or other out, or if there is something that is more impactful. We are looking at a much more granular level at each of those levers across each of the areas of the criminal justice system, and the scorecards will allow us to do that geographically as well as functionally.
Q37 Laura Farris: I agree with everything you have said, and that is the scaffolding on which we are going to turn this around. Can I pick up one point that dovetails with a couple of things that you said and also corresponds to what the barristers said to us? We probably have to be realistic that the reason why Operation Soteria was successful was that there was implied recognition that the police had not been undertaking suspect-focused investigations. They had been looking at the victim: what had she been doing that night; what had she been drinking that night; how was she behaving?
One of the things that we heard last week was that there was a strong case for either a solicitor or a barrister being involved at an earlier stage. A question was raised by more than one of the professionals as to whether or not it was ever appropriate to have a police officer taking the first statement from a rape victim, given the extraordinary sensitivity of what has happened and the difficult details. What is your view on the earlier involvement of lawyers, and what is your view on the continuity of having the same representative all the way through the process?
Dominic Raab: This is something that I want to look at in the victims law consultation, so I will not go into too much detail now. A lot of what you said sounds intuitively right to me.
There are challenges everywhere in the system, but I note that the real challenge we have is that, if you break it down into volumes of victims reporting rape and sexual violence to the police, volumes going to charge and volumes going to Crown receipts, the bigger challenge is in the second and third steps. We still have to do better at reporting and encouraging reporting, but I think the police have made greater strides in recent years, through the practices at the station and elsewhere, in encouraging victims to have the confidence to go forward. The attrition tends to be, for want of a better phrase, later in the process. That does not mean that we should not look at all of those things.
My greater worry is the attrition at the level of CPS and then Crown court receipts. Ultimately, we all know that there is something of a crisis of confidence in the system. It is not a criticism; it is just a factual recognition after the Liam Allan case—let us be honest about that—and the sense that we need to avoid miscarriages of justice, and the British tradition is built on that. It feels to me that the pendulum has swung a bit too much the other way, and therefore we need to give the whole system the confidence to be focused on driving forward robustly based prosecutions. That is where Soteria really adds value.
Chair: Thank you very much. We will move on to prisons now with Mr Butler.
Q38 Rob Butler: Thank you, Lord Chancellor. I would like, before we get on to adult prisons, to touch on youth custody, if I may. The number of young people in custody has dropped dramatically over the last 15 years from something like 3,000 to about 500. I would say that is a hidden success of our youth justice system that perhaps we do not boast about enough. But inspection reports for what remains of the youth custody estate are very poor. There are two STCs, secure training colleges, that have recently received urgent notifications. We spoke to your ministerial colleague about Oakhill just last week. What is your assessment of the youth secure estate in its current form?
Dominic Raab: First of all, can I thank you for all the work you have done in the House and more generally on this? The reality is that the number of children and youths in the custodial estate has declined over time. That also probably means we are dealing with more serious cases, and we are left with a more hard-core rump of cases, and we need to adapt and devolve the system to meet those requirements. I make little apology for saying that, for me, the security of those estates and custodial institutions is important. That must also mean them being stable, secure and safe places internally. The two things go together.
It is difficult. The proportion of those who now go through the children and youth custody estate and end up later on in the adult estate is horrifying. On the one hand, they are quite serious cases. Security needs to be at the forefront of our mind. On another level, we need to do everything we can to give them a chance to take a different direction. It is about finding that balance. The truth is that I do not take a particularly theological approach to it. I look at what works. I do not think there is a public/private sector clearcut universal correlation between performance. There are good examples of secure schools.
There is also a case for youth offender institutes that do well. I think you have particularly mentioned Parc in papers you have been writing, which also does well. There is not a silver bullet answer. We need to recognise the composition of the residual number in custody and try to craft a range of options that can deal with the different types of cases that they reflect. They are all quite serious. Inevitably, with a smaller number, they are inherently complex and quite difficult cases.
Q39 Rob Butler: Thank you. Can I move on to the adult estate? You have mentioned in speeches since your appointment that you are committed to improving rehabilitation in prisons. How do you aim to achieve that?
Dominic Raab: We are working on a prison White Paper. I am quite keen to knock that out for consultation relatively soon. There is a lot of detail going into it.
Fundamentally, we have a programme to build 20,000 additional prison places with £4 billion over the next three years. As with our sentencing in the PCSC Bill and the end to automatic halfway release of dangerous sexual and violent offenders, there is a case—and we all need to be honest about this—that incapacitation in prison will save a number of crimes each year, and, depending on the severity of those, that will be increasingly important to public protection. That is important. I take a very firm approach to criminal justice in that sense.
Equally, we know that the vast majority of offenders will inevitably be released at some point. It seems to me axiomatic that within the period of incarceration we have to try to make sure that for the constituent things that drive their reoffending we do better, and they come out better, not worse. The first thing is that we need much better information early on when an offender arrives in prison on everything from the level of skills, and whether they are numerate and literate. The number of offenders in prison with the numeracy and literacy of a primary school child is shocking. We need to know their mental health state. We need to know their drug options.
Then we need a plan. I have talked a lot about employment in prisons, but there are other areas like drug rehabilitation. In particular, too many offenders are, effectively, placed on methadone and other opiate substitutes because it puts prevention of harm, which it undoubtedly serves a function in achieving, at the forefront—harm to the individual offenders, harm to other offenders, and harm to prison officers. That may be fine temporarily, but methadone is harder to get off than heroin. It is more addictive than heroin. You have to ask yourself, if they are staying on it indefinitely, how much that is driving towards recovery.
There are some very good examples of recovery wings in our prisons. There is a real case for that. I talked at a roundtable recently with some of those who are driving abstinence-based drug rehabilitation. We want to get a better balance. We need early assessment; drugs with a much stronger focus on eventual recovery, and therefore ending the addiction dependency and not replacing it; and skills and work in prisons. There are other things we are talking about as well that will be in the White Paper. If you get those basics right and you then create a structure around the prison estate and prison governors, it gives some courage and some confidence to prison governors who are innovating and gives them a bit more autonomy.
As we said with the criminal justice scorecards, you have to measure. Get the data that shows reoffending rates. Who are the ones pioneering the skills programmes? Who are the ones pioneering work in prisons? Attitudinally, our prisons, with some exceptions, do not really regard getting offenders into work as a primary focus. That is something that should change. I could go on forever, but I will let you have the White Paper. That gives you a sense that there is an approach that is robust and firm on punishment and incarceration, but also recognises that we have to try to encourage those people to take a second chance to turn their lives around, and that it is all possible.
Q40 Rob Butler: Can I take it from that, particularly the point you have just made about innovation because there has been ebb and flow on autonomy for prison governors over recent years, that you would want to see greater potential in prisons for the good prisons to learn from one another, and for prisons that are not so good to learn from those that are better?
The reason I ask that is my own experience, having visited many prisons in previous roles, that they seem to live in a very siloed existence, yet they tend to have reasonably common problems. There is almost a competition between prisons. Each prison identifies very much as its own identity, which has its own value in itself, but is then not as open to learn from other places as it might be. Surely, there is scope for sharing best practice in the prison estate, as in many other Government Departments.
Dominic Raab: In any organisation, you want your brightest stars to shine. If they are doing great things, I want to facilitate the opportunity to learn from that and spread the practice more broadly. We will talk about that a bit more in the White Paper.
Rob Butler: Can I come on to the prison places—
Q41 Chair: Before we move on, you mentioned secure schools, Minister. We do not have any secure schools at the moment in the youth estate. Is that still a plan? Is it still intended?
Dominic Raab: I am open to it. There is probably a place for it. Given the cohort, you have to look at the full range. Yes, it is still on the agenda.
Chair: Thank you.
Q42 Rob Butler: You said there would be almost 20,000 prison places for the adult estate. Can I go through one or two of the technicalities on those?
Dominic Raab: Yes.
Q43 Rob Butler: Do you have a date yet for HMP Five Wells opening?
Dominic Raab: That will provide 1,700 places. Early next year is the aim.
Q44 Rob Butler: Okay. You have also had a consultation on a proposed prison in Buckinghamshire. I should say it is not in my constituency, but it is next door, and I know people in my constituency are concerned, as is my constituency neighbour, Greg Smith. I probably should not put that on the record. I think the consultation closed in January this year. Can you update us on anything that you have been thinking of since then in the Department?
Dominic Raab: It is due to open in 2026. That is the overarching timeframe. It will provide close to 1,500 of the places we need. I think it is in the midst of a planning application, so I should be careful not to say too much more. I am pretty sure that it went to the outline planning application, and that will be determined in due course.
Q45 Rob Butler: There are a further four prisons, I believe, that are committed to, in addition to those. What are your plans to deliver on the remainder of the potentially 20,000 spaces? I think those you have committed to would deliver just under 10,000, if our numbers are correct. What are your intentions for getting to those 20,000 additional places?
Dominic Raab: I can write to you with the detail, but, effectively, there are two currently being built, as well as Five Wells and Glen Parva, which I had the fortune to visit recently. By the way, it is an amazing site. It has in-cell technology, workshops on a scale I have never seen before, with prisoners building the prison. We talked about designing out crime in the context of policing, but the scope for designing prisons in a more reforming way is very positive.
The four others are one in Yorkshire next to the existing Full Sutton, the one you mentioned in Bucks, one close to HMP Garth and another in the east midlands. On top of those, there are some temporary places that are being built. I can write with more detail if it is helpful, but those are the constituent parts of the programme.
Q46 Rob Butler: I think Five Wells and the new prison in Glen Parva you just mentioned were commitments under the “new for old” prison build programme. Is it still your intention to close any older prisons, or does the growing demand for prison places mean that that is no longer going to be feasible?
Dominic Raab: Do you mean particularly in London?
Q47 Rob Butler: There was an intention under one of your predecessors—I believe it was Michael Gove, but I stand to be corrected—that new prisons would be built, effectively, to replace the old. The old ones may even have been sold to create some revenue. There were some problems there with delays.
Do you have any intention to close any of our really ancient prisons, some of which were built well before even the Victorian period, or are we in a position where we just need to keep building new and adding incrementally?
Dominic Raab: I see. Again, I am not theological. I would love to close some of the older estate, particularly in areas of prime real estate. The former Housing Minister in me looks at those with great anticipation. The problem is that they all have so many restrictions on them, so it is quite difficult. It is not whether you get Knight Frank or whichever estate agent to look at them; the problem is that they do not realise the real estate value that many people who write about it think they have, because of the restrictions, the listings, and so on; obviously not you, Rob. Maybe we need to look at that. In an ideal world, you would certainly want to do that because you would not put prisons in the current locations. If you think about what you could do with housing in those areas, it does not make sense, but we are bound by the restrictions in law that we have at the moment.
Rob Butler: Thank you very much.
Q48 Kate Hollern: I was fascinated by your real estate image. I can think of some prisons in town centres that we would like to change. It is interesting.
As we know, mental health issues in prison are extremely worrying. We have heard evidence from people with IPPs, young offenders and women in prison. There was a report commissioned and completed in 2018 that cost £1 million but has never been published. Can you tell us why?
Dominic Raab: I am not familiar with a report that old. It was before the last election. If you want to write to me, I will certainly look into it and I am happy to respond.
Q49 Kate Hollern: It was by Paul Moran.
Dominic Raab: It was before the last election. It was certainly before I was Secretary of State for Justice or indeed even Foreign Secretary. I am not familiar with it. I have, of course, looked very closely at the joint inspectorate review on mental health, and we will talk about it in the White Paper. I am not familiar with that report. Forgive me. If you write to me, I am very happy to respond on any points.
Kate Hollern: We recognise that you are new to the job. I am sure you will get a number of letters from this Committee.
Chair: Janet wants to come in.
Q50 Janet Daby: Lord Chancellor, you have already mentioned the joint inspectorate report in regard to mental health. They identified some serious concerns. One of their key findings was that thousands of people with mental health illness were coming into the criminal justice system each year and their needs were being missed at every stage. Could you let the Committee know what you are doing to address the concerns they identified? That is just one of them.
Dominic Raab: I thought the report was very constructive. When I look at the prison population and the proportion of people who are seriously mentally unwell—not someone with a relatively low level of disorder but someone who is seriously unwell—and see the scope for them to trip up and end up in prison, as bad as their offending is and without reducing their responsibility for it, I think it is not a particularly smart thing for us to do. We ought to be catching them earlier and there ought to be a way to provide safer secure mental health provision in the community.
Prison is not a great place for those who are mentally unwell, for all sorts of reasons. Equally, we need to do much better in prison and on the line from prison through to serving on licence and treatment in the community. We will talk a bit about that in the prison White Paper. One of the things we do not do well enough is very early assessment. We ought to be measuring very early on addiction, numeracy and literacy and mental illness, and have a plan for each offender that takes them further forward but does not allow them to regress or deteriorate.
Prison is a difficult place for anyone who is seriously mentally unwell. I take a tough approach to crime and punishment. I tend not to be accused of being soft in these areas, but it does not seem to me to be a particularly smart thing to do to allow people who are mentally unwell to trip up when they should have got better treatment in the community, and then have prison as a safety net. That is something I am speaking to the Health Secretary about.
Q51 Janet Daby: Can you say what resources you will be allocating to address the problems identified in the report?
Dominic Raab: I can certainly write to you. Do you mean in terms of the allocation from the spending review?
Q52 Janet Daby: In your assessment of the joint inspectorate report. You have already outlined the interventions that need to take place. All of those interventions will need a level of resourcing and commitment by joint Departments. What resources will you be allocating to address the problems that the report identified?
Dominic Raab: A lot of the mental health provision is commissioned by DHSC with MOJ feeding in. I am actively looking at this with the Health Secretary both in the prison White Paper and in work we are doing more generally across Government. I am very happy to write to you and look at the allocations as they affect DHSC but also MOJ.
What I am trying to signal is that we need to get better at creating, if you like, flags that go up and provision that can be made before a crime is committed for those who are seriously unwell. I do not know about you, but I have had quite a significant number of constituent cases coming to me as an MP where you look at the steps along the way and think that more could have been done to prevent the crime. I have seen victims and the families of perpetrators. I think we need to do better at that.
Q53 Janet Daby: You have quite rightly addressed prevention, but obviously there are people already in prison and it is being used inappropriately as a place of safety. You have already mentioned it and I am just pushing you a little bit further. Could you say what is being done to ensure that prisons do not continue to be used as places of safety?
Dominic Raab: Resource is an obvious factor. To be clear, there will be offenders who are criminals and deserve to be in prison, but they will have ancillary mental health aspects. That is inevitable. My focus has been on the central problem that they are mentally unwell and as a result they trip up into prison. The co-ordination between the MOJ and DHSC needs to be better on what we do before a criminal offence is committed, the journey that the offender who is mentally unwell takes through their sentence of imprisonment and the planning done for them on release. In all of those areas I think we need to do better.
Janet Daby: Thank you.
Q54 Chair: One issue that the Committee has raised on a number of occasions with your predecessors has been the question of workforce in the prison system, particularly the difficulty of retaining experienced prison officers. Is that something the White Paper will look at? There is an argument for a proper workforce strategy.
Dominic Raab: It will look at that. We have talked a bit about leadership, I want to inspire, encourage, promote and incentivise the very best leaders. Prison officers and probation officers did an incredible job during the pandemic. They are dealing with all the challenges that you have in prison, coupled with the Covid pandemic. There were issues, but because of that effective handling we did not see the kinds of problems that it was feared would take place in the estate. My view of all these things is that we have some committed and dedicated prison officers and we need to make sure that we incentivise them and make the profession attractive to those coming in from outside, or from other parts of the criminal justice system.
Q55 Maria Eagle: I would like to ask you a little bit about court capacity in the Crown court and the backlogs that have developed there. The Crown court backlog increased by 23% in the year prior to the pandemic, from 32,290 to 41,045. It has increased by a further 48% since the onset of the pandemic. What do you think is an acceptable backlog in the criminal courts, compatible with doing justice for victims, defendants and witnesses who are caught up in trials that are not happening at the moment or are being delayed?
Dominic Raab: Clearly, in the Crown court it has been a real challenge. By way of counterpoint, we went into the pandemic in February 2020 with a backlog 19% lower than the Government inherited in 2010—just saying. That was notwithstanding all the challenges of dealing with the financial situation that the Government inherited.
There is a serious backlog. It is not and should not be a partisan issue. We need to get it down. I know you are focused on the Crown court but, to be clear, we already had the backlog coming down in the magistrates courts, which take 95% of the criminal cases. Obviously, the serious ones in the Crown court with jury trials are the most impacted by the social distancing rules.
We invested £250 million to support recovery in the courts in the last financial year. We got a good settlement in the spending review. We are extending the 32 Nightingale courts until the end of March next year. We have removed the limit on the number of days the Crown court can sit this year. Video technology is another thing, which we can talk about more generally. As part of the story, it was being used during the pandemic. I think it will be part of the new normal, but it will certainly have a big impact on bringing down the backlog. I think that 70% of all courtrooms now have the cloud video platform, which enables 13,000 cases to be heard virtually every week. There is a whole range of other stuff—for example, the super courts in Manchester and Loughborough.
There are other things we can do. Resource is part of it. I am working very closely with the senior judiciary to come up with an effective plan. That is probably one of the things we talked about earlier where Government Ministers and the senior judiciary need to work together. It is not something that attracts the preserve of judicial independence. Of course, Ministers will be responsible for it. We will bear down on that backlog as swiftly as we can. Maria, I accept your premise that justice delayed is justice denied, so we have to get the backlog down as quickly as possible.
Q56 Maria Eagle: You talked earlier to other members of the Committee about the issue of violence against women and girls. Many of these trials involve serious sexual offences. There has been an increase of 90% in cases waiting for trial in that backlog. Some of those will involve serious sexual offences. The consequence of having to wait an excessive time, particularly if the alleged attacker is released under investigation, is that often you have attrition. Witnesses drop out; the victim withdraws the complaint because they just cannot cope with it any more. Are you going to do anything to focus on dealing with those cases to make sure that you do not end up with this circus where people have to wait so long that the trials collapse, which is just about the most inefficient use of public money that I can think of?
Dominic Raab: Totally. There is an interesting debate about section 28 precisely in this regard. If you look at the scheduling of backlog cases, and the pushing to the front of rape cases, there are knock-on effects, and that is a question of priorities. There is a debate around section 28. My personal feeling is that that is a good example where we ought to expand pre-recorded testimony from victims. You have to make choices about these things, but precisely to do better in the respect to which you refer that is something I am looking at very actively.
Q57 Maria Eagle: Why will it take more than three years to reduce the backlog in the Crown court, which is currently 60,692? Why will it take over three years to reduce that by 7,000 cases?
Dominic Raab: It will not take that long to reduce it. Do you mean reduce it to pre-pandemic levels?
Q58 Maria Eagle: That is above the pre-pandemic level. Minister Cartlidge stated in response to a parliamentary question that “the spending review provides an extra £477 million for the criminal justice system.” Congratulations on obtaining it. He went on to say that it “will allow us to reduce the Crown court backlogs…from 60,000 today to an estimated 53,000 by March 2025.” That is higher, even at that stage, than pre‑pandemic levels. Why will it take that long to reduce by only 7,000 this huge backlog in Crown court trials?
Dominic Raab: You are talking about the assumptions that underpinned the SR, but there are other things we can do that are non-financial and which I think will make a difference. I will announce those in due course.
The other point you have to take into account is the impact on other things that increase demand. We are in the middle of recruiting 20,000 police officers, broadly halfway through. The more criminals the police catch, the more demand will increase. We want that demand going through the Crown courts because it shows you that we are cracking down on crime. We also have to make sure that the courts have the capacity to get back to a normal level of backlog. There is always some backlog in the Crown courts and that is important for scheduling, but I accept the premise that we have to get it down as quickly as we can.
I think the question you ask reflects all the other efforts we are making. It is not just police we are recruiting; we have more independent sexual violence advisers. We will decrease attrition rates and get more of the prosecutions that you and other members of the Committee have quite rightly talked about. The more we do of all that stuff, the greater the pressure on the court system. I am confident that we have a plan working with the judiciary, not just the resource—thank you for what you said about the resources being provided—but the technology, smart scheduling and other things we can do, which I will announce in due course, to bear down on the backlog.
Q59 Maria Eagle: The Minister told us in that parliamentary answer that the backlog will be reduced to 53,000 by March 2025. That will be a reduction of only 7,000 from the current level. Do I gather that you expect that to be higher than the reality, on the basis of what you have said?
Dominic Raab: I think that is broadly accurate, but if there are other things—
Q60 Maria Eagle: That is a higher level of backlog than pre-pandemic.
Dominic Raab: But there are other things we may be able to do that are not purely resource based, and as and when we are in a position to put those forward we will use them. We will deploy all the levers we can as vigorously as we can to get the backlog down.
Q61 Maria Eagle: When will the backlog be eliminated? When will it be lower than it was before the pandemic?
Dominic Raab: I think the assumptions you make are the ones we are working to. If we can get it down quicker—
Q62 Maria Eagle: That is like never.
Dominic Raab: No. You have transparency around the data. When we are in a position to update it and say when we will get it down further, of course we will do so.
Q63 Maria Eagle: When the Lord Chief Justice appeared before us, I put to him that it did not seem to be particularly ambitious to seek to reduce a backlog that is now 60,000-plus by only 7,000 by March 2025, and he agreed.
Dominic Raab: You have to take into account the amount of extra demand that will be going in, because we will have more police—
Q64 Maria Eagle: But that will make the backlog higher, not lower.
Dominic Raab: Maria, do you not want us to recruit more police officers?
Q65 Maria Eagle: No, I do. The longer serious crimes that end up in the Crown court for trial are left, the less confidence there is in our criminal justice system. I approve of increasing the number of police officers and tackling crime. Too many people get away with crime, but they get away with it if trials do not take place in a reasonable and sensible time, because trials collapse when victims and members of society do not have confidence in the system. What are you going to do to reduce this backlog by more than your current ambition, because that does not seem to me to be ambitious enough?
Dominic Raab: I appreciate that you want us to go further and faster in each of the different areas, but we also have the impact of the pandemic on the public finances and the hit to the economy, the like of which we have not seen for 300 years. It is easy to say that we should go further or faster in this or that area, but what we have is a balanced approach that takes into account all areas of the criminal justice system and bears down on the backlog. If we can deploy technology faster and use other smarter means of getting through the backlog, we surely will.
Q66 Maria Eagle: How many sitting days will need to be delivered by 2024‑25 to reduce the number of outstanding cases to the 53,000 you aspire to?
Dominic Raab: We have lifted the upper limit. As to how many we will need, it is difficult to give a precise figure, but, if you like, I will take it away and see whether I can give you a range.
Maria Eagle: Thank you.
Q67 Chair: On that point, it is not just sitting days, is it, Lord Chancellor? You also need the judiciary—the man and woman power to do it.
Dominic Raab: That is why it is quite difficult to give a precise figure.
Q68 Chair: You will be aware at the moment of the concerns about the shortage of judges, particularly circuit judges in the recent rounds, and recorders available to sit in crime, and experienced practitioners being available to take some of the serious cases to which we want to give priority. Will that be addressed?
Dominic Raab: Yes. I think that to some degree that comes down to the wider pool of advocates making their way through the courts. That will include not just barristers but solicitor advocates. CILEX has done a very good job of providing routes for non-graduates into the profession. We should look very carefully at all of those areas, as well as the terms we offer the judiciary—for example, retirement age, which, as you know, is being actively addressed.
Q69 Chair: To prosecute a rape case or other serious sexual offence case, you do not want somebody who has recently qualified. You have to make it worth while for an experienced person with a 10 or 15-year call.
Dominic Raab: I totally agree. All I am saying is that you want to expand the pool at every level, and that will have a knock-on effect up the ranks of seniority.
Chair: We are probably going to be interrupted by a vote at some point. The normal thing, as I indicated to your office, is that we suspend the meeting and then come back. We are making good progress and we will use as much time as we can.
Q70 Paul Maynard: Forgive me for returning to Maria’s theme, Lord Chancellor. I listened carefully to what you were saying, particularly with regard to the increase in throughput that you expect to occur due to recruiting extra police officers. Would it be fair to say that you would not expect the backlog to reduce to its historic low level of about 35,000 in 2019, when incidentally I was Courts Minister, not that that was the cause of it at all?
Dominic Raab: We shall try to live up to the high standards you have set, Paul. The assumptions are the ones that James Cartlidge spoke to and that Maria read out. We have been clear about the combined complex challenge of recovering from the pandemic, but also making sure as part of that recovery that we have more police on the street and more advisers supporting victims in the process, and that has a downstream effect on the criminal justice system.
Paul Maynard: Referring to some of the assumptions raised by the Chair about judicial and legal availability, there is one other limiting factor. We shall have to wait to find out what it is.
Chair: We will pause and be back as soon as we can.
The Committee suspended for a Division in the House.
Chair: The session is resumed following the Division. The Lord Chancellor is still with us.
Q71 Paul Maynard: A few weeks ago, we made a very interesting visit to a Nightingale court in the city. What are the Government’s intentions regarding the Nightingale court programme?
Dominic Raab: What specifically? We have extended 32 of the Nightingale Crown courtrooms until the end of March 2022. That is the current plan, but I keep it very carefully under review.
Q72 Paul Maynard: Do you have any intention of extending it beyond March 2022? Is that something you might consider?
Dominic Raab: I will always consider anything, but no decision has been made which way on that.
Q73 Paul Maynard: Are you cognisant of the time factors that would be required for the Nightingale courts to continue? At the one we visited, they told us that they would imminently have to start to wind down their operations unless they received confirmation that they might be continuing. Do you want to make that decision as a means of reducing the backlog we discussed earlier?
Dominic Raab: We have lead times for all of these things, which I monitor very carefully, so yes.
Q74 Paul Maynard: As you know, we had the Lord Chief Justice here about a fortnight ago and we had an entertaining discussion about the court estate and whether it is fit for purpose. The Lord Chief Justice was very clear. He saw the very poor state of the court estate as a material inhibiting factor in reducing the workload. Is there any investment in the court estate that you have obtained through the spending review that can go towards improving the fabric of the court estate?
Dominic Raab: These things are always difficult to eke out in a competitive spending review, but there is. Equally, that is where I also think that technology and innovation can help us, because the more we can make productivity gains in those areas, the more we can free up things like the capital infrastructure.
Q75 Paul Maynard: Forgive the semi-note of sarcasm, but we know that at the Inner London Crown court just last week a faulty heating system meant that jurors had to be sent home. Clearly, that impacts on the throughput of cases through our court system.
Dominic Raab: It is true in prisons as well. You can lose prison capacity. Economically and financially, it is a false economy. I have made these points and, shall I say, they informed the spending review.
Q76 Paul Maynard: Without putting words in your mouth, would you share the Lord Chief Justice’s interpretation of the quality of the court estate currently?
Dominic Raab: It is quite right that we speak autonomously with our distinct voices.
Q77 Chair: One of the things that is raised with us when we visit courts on the issues I referred to earlier about recruitment and retention of the judiciary is that it is not just pay and getting experienced people; it is also the working conditions, which are well below those they will have experienced in private practice in most cases.
Dominic Raab: For private practice, that is almost certainly true. Again, though, I know from the feedback I have had that you are right about this. One of the things that makes the overall offer more attractive is the deployment of the latest technology to try to help make the court schedule more productive. It frees up lawyers to balance and take on more cases; it makes the throughput more efficient. You are right; all of these things matter.
Q78 Chair: There is no silver bullet, but a number of things in the system that have to be put together.
Dominic Raab: Absolutely. You need to look at it in the round. I accept that.
Q79 James Daly: Lord Chancellor, you were asked some questions at the start of this session regarding your role as Deputy Prime Minister. I think that you are in a job that requires a cross-departmental role. With the Justice brief split from the Home Office brief, for the office holder to be effective, they probably have to work closely with the Home Office, the Home Secretary, the Attorney General and various other members of the Cabinet and Ministers. I welcome the role that you have.
I am sorry to take a step back, but I want to return to Ms Farris’s line of questioning regarding rape prosecutions. In Greater Manchester, the charge-out rate is 1%, so the conviction rate is even less than that. We in this Committee are discussing a very small number of the total number of complaints received by the police in many parts of the country. The issue is not the court system. We can have a discussion about the processes within the court system, and I agree completely with Ms Eagle’s point about delays in getting from charge to trial, but it is almost always down to either release under investigation or the amount of time between initial arrest by the police and complaint and charging.
Release under investigation is a massive problem, which I know you are aware of, but I think we should be honest and recognise that the real issue is charging. One issue that arises from that in terms of serious sexual offending is the discretionary test of the Crown Prosecution Service when it is considering evidence. I wonder whether you have thought about that in this wider context and spoken to the Home Secretary about it.
The other thing is that the vast majority of rape cases are not discontinued by the Crown Prosecution Service, but by the police. The reason they are discontinued by the police is that a number of complainants in serious sexual matters have challenges in their lives. In some circumstances, they may be viewed, I think completely wrongly, as potentially unreliable witnesses—for example, because they have drug problems or have been in abusive relationships. It is not for the police to decide that somebody is unreliable and then discontinue a very serious rape allegation. In relation to what happens between complaint and potential charge, do you think any of those issues is worthy of further investigation by yourself?
Dominic Raab: Absolutely. While mindful of operational independence in all the different cases, we need to look at those things systematically. I think the scorecards will help. I suspect—I do not know—this will be a more pronounced problem in relation to the particular point you raise in some areas than in others. In other areas where they are doing better, what is the reason? Have they figured out the modus operandi between the CPS and the police? That is important. There is an issue around victim support to deal with attrition. We have made a £150 million investment in victim and witness support services. We have talked about Operation Soteria. I will not go into that again. Both the CPS and the police got more resourcing in the SR. There is the issue around phone technology and digital disclosure. I touched on, but did not go into a lot of the detail about, third-party disclosure. It seems to take an inordinate amount of time to get third- party disclosure in some of these cases.
While I appreciate what you are saying about the courts, I suspect—I do not know, and lawyers, depending on their own practices will have different views on this—that one of the positives or potentials that section 28 provides is not just securing more prosecutions. It comes at the discretion of the CPS to apply for it; it comes at the discretion of the court to allow it. I cannot see that there is a principled argument against it, but one impact that, anecdotally, it feels that it could increase is the number of guilty pleas as well as the number of convictions. I suspect that will help build the confidence that we want to see at the charging point.
Q80 James Daly: I think that is absolutely right. We have spoken about this before. I was a criminal lawyer for 16 years. I completely agree with Ms Eagle’s point about delays, but there is a misnomer. There have always been delays in the courts, or at least since the time that the Chair and I were in practice.
Chair: It must be a long time ago.
James Daly: Governments of all political persuasions have for many years attempted to address backlogs in the system, but the nature of the system and how it is set up means that no perfect outcome can come from it. When you are looking at the delays and backlog in the system, I think the bigger threat and the bigger issue that may impact it is not in the matters already charged but in the thousands of matters that are currently released under investigation where victims have been waiting for a charge to arise, or not, for sometimes between 12 months and two years.
To make one further point, on the Committee’s visit to the court that Mr Maynard talked about, the Chair and I spoke to some barristers about a kidnapping case. It was three years from the point of complaint to its being in court. That was to do with the delay in release under investigation and release on bail first. How do you feel you can influence the police and the Home Office in how they address the question of release under investigation?
Dominic Raab: On the overall timeliness point, the scorecards will have bespoke measures, so that we will see for the first time gathered centrally, and produced so that everyone can see it, the timeliness at each of the three stages I have identified. You will be able to see the geographical breakdown. I think that will bring with it the scrutiny that transparency attracts. We then need to think about accountability while respecting operational independence in individual cases. Being able to see where those issues are most pronounced will help, particularly because there will be variations; some areas will perform better than others.
Q81 James Daly: In Greater Manchester the problem has been scrutiny, in that the Mayor holds the position of police and crime commissioner and, therefore, overall responsibility in many senses for these matters. He is not scrutinising it in any way, shape or form at local level, and certainly not at national level.
Dominic Raab: Because you do not have the data yet, or the data is collated in a way that all but the most forensic of researchers will be unable to find. To collate it in this way, to allow for easy comparison and to have trend data—let’s say it is produced quarterly—will, I suggest, make a significant difference.
Q82 James Daly: Turning to legal aid, I must declare a previous interest. I am a practising solicitor now and was a legal aid lawyer for a long time, so I have a lot of sympathy for my brethren in the criminal legal aid system.
I want there to be a sustainable system where in every part of the country you are able to get a criminal legal aid lawyer to represent your interests. In certain parts of the country we have legal aid deserts, to say the very least, and an ageing duty solicitor profile. What do you think we need to do to change that?
Dominic Raab: To be clear, last year we spent £1.7 billion on legal aid. That has to be prioritised to protect the most vulnerable and make sure that they have access to justice. By the way, that sum is the equivalent of this year’s budget for the Covid vaccine programme. I am just starting from the baseline. When you compare competing priorities, we are spending a significant sum. Legal aid is only one part of the representation picture. We are providing £5 million to not-for-profit organisations and £3 million to help litigants in person. Obviously, we have the independent criminal legal aid review, which arrived today.
Q83 James Daly: Have you read it, Lord Chancellor?
Dominic Raab: It did not arrive in time for me to go through it in detail, but it follows the first phase of our review that led to up to £51 million being injected into the system. I will take a good, long look at that and respond as swiftly as I can.
There are other things. We have talked a lot about the technology and I will not go over it again, but for many of practitioners, if we are thinking about morale, recruitment and sustainability, those issues matter as well. From the feedback we get in the MOJ, a lot of advocates are very pro the innovation piece, and you can see why. They get more out of their day; they can adjust their scheduling and so forth.
There is a vision for a sustainable and flourishing sector. The end objective is about delivering justice. It is not about fuelling a sector here, there or wherever; it is about delivering justice. Our legal profession, the solicitors and barristers profession, is a source of great pride. I came through the solicitors profession. I was a Foreign Office legal adviser for six years, and I take very seriously the work they do. We have to make it sustainable. Allow me to respond with just a little bit more breathing space to make sure I answer all the questions that inevitably people will have.
Q84 James Daly: I know how seriously you take this, Lord Chancellor. From my own personal experience, I can say that we are seeing reducing numbers of firms and a reducing amount of expertise. We are seeing real problems in that system, with a lack of duty solicitors coming into the profession, and so on. The Crown Prosecution Service is recruiting, taking mainly from the defence body because of the better terms and conditions. I am very pleased for them in that respect, but it creates many problems. I know you are aware of that, and I hope we will have an opportunity to speak to you about Sir Christopher Bellamy’s review in due course.
Dominic Raab: I am sure you will.
Q85 Chair: Do you think we are likely to see Sir Christopher’s review published before the end of the year?
Dominic Raab: I want to do it as swiftly as possible. Let me take me a first cut of it, if you like, before I say too much. I appreciate that it is long awaited and eagerly anticipated. I want us to be as forward-leaning as we can, but let me read it first and get a sense of what is coming.
Q86 Chair: The spending review, separately from the Bellamy review, referred to funding being made available to increase the thresholds for means-tested legal aid. Are you able to say to us where you are and what the threshold might be with the uplift that is coming from the SR?
Dominic Raab: I want to look at that in the round with the other measures, but I will address it.
Q87 Chair: Can I turn briefly to family and civil courts? When the Lord Chief Justice gave evidence to us, he indicated that, while priority had been given to public family law cases during the pandemic and elsewhere, there had been a significant growth over some time in private family law cases. Frequently, those have litigants in person, as you know, and take up particular time in the courts. What is the plan to deal with family law cases?
Dominic Raab: I am concerned about this, not least because I now have a snapshot and I can compare it with 2018 when I was Courts Minister. We sat near record levels in the last financial year in the family courts and have largely restored the disposal levels to those seen before the pandemic. That has allowed us to stabilise growth in the outstanding public law case load at about 10% higher than pre-Covid levels. We also had the family mediation voucher scheme, introduced in March. That is important.
In the private law courts, broadly the range of safeguarding and domestic abuse cases is somewhere between 50% and 60% of their cases. Inevitably, they need to be heard before a judge because of the issues at stake. I have started to talk to the senior judiciary about this and work up a well thought-through approach. The vast majority of the remainder should not really go to court. It should not be so easy just to say, “We’ll go to court.” These are sad and sometimes tragic family break-up matters and they often involve children, and we ought to be much, much better at using ADR mediation in particular. We need to reconcile the incentives for going both to ADR and to court. Frankly, most of those cases should not be going to the family courts. I have been doing this job for only a few months, but I would be in the market for something quite drastic and bold in that area.
Q88 Chair: A lot of people will welcome that, not least many family practitioners and former presidents of the division, but in the interim there is a problem, particularly in the county court, with final resolution hearings. I can think of a constituent of mine who a year on from the divorce is still waiting for the final resolution hearing. Having been fixed for a year, it is taken out of the list on the Friday for hearing on Monday and re-listed for September 2022. In that case, a husband and wife who are divorced are still living in a two-bedroom flat with two teenage kids. That cannot be acceptable. You are totally right about the long term, but what can we do in the interim to blitz, if you like, these outstanding bits of final resolution? People cannot move on with their lives.
Dominic Raab: I agree. We will do everything we can in the short term. For the non-contentious stuff, use of the online procedures, including for probate, has made a big difference for the citizen consumer of judicial or legal services. I think there is a big place for that. The problem is when they are contested. Most of those cases ought to go to mediation in the way I described, and that does not require you to wait in the queue for a court.
Q89 Chair: I understand that. The final point I want to ask about on civil is county courts. As the Lord Chief Justice pointed out, they are still, essentially, paper based and therefore there is far less data available in a reliable form. There are now quite significant claims, of £120,000, dealt with in the county court, and over a year on, cases have been taken out of the list twice at 48 or 24 hours’ notice. Parties are running up costs of £10,000, or £35,000 in one case. These examples come from civil practitioners I know. Will you be bearing down on that?
Dominic Raab: On the civil and family court recovery, we invested £76 million to increase our capacity in the last financial year. I stress that it is not something we have been neglecting. In particular, in the civil courts there is a good example where we have made greater use of part‑time judges. Some of that flexibility is helpful. We have rolled out technology so that hearings can take place remotely, and we are starting to see progress. As a result, final hearings have increased from half of pre‑Covid levels in June 2022 to around 80% in May 2021, but we need to go further and faster.
Q90 Chair: There seems to be a particular tendency for there to be much variation between county courts. Is that something you are picking up from your officials?
Dominic Raab: It comes back to the point about getting data, measuring it and seeing who is doing well, and asking reasonable questions in areas where they are not getting through the cases as swiftly.
Q91 Chair: It takes 10 and a half months to issue a part 8 claim in a trustee appointment, for example, which is an administrative role and a judicial function.
Dominic Raab: I agree.
Q92 Chair: There has been a lot of concern about probate registry recording.
Dominic Raab: Yes.
Q93 Chair: Perhaps you can help us in relation to that. I am told, again by practitioners, that it can be very variable. In some instances, despite centralisation, it is now harder to get probates moved through in a timely fashion than it was when there was a local registry that local practitioners could speak to and contact.
Dominic Raab: Probate is a good example where digital innovation will be our friend. We launched that in 2019. It allows you to do all levels of the process: to apply, pay and complete progress online. Seventy-six per cent of applications are now made online. The satisfaction rates for use of the service are above 90%. During the pandemic, it was absolutely critical. Since the end of July, we have been issuing more grants than we have received and have reduced the case load by 7,500, so waiting times are now improving. The average waiting time from April to June 2021 for an online application was 3.3 weeks. That is one week quicker than for the same period the year before. I am not saying that we have the whole thing licked yet, but that gives you a sense of the direction of travel and it feels positive.
Q94 Chair: You will perhaps have seen the concerns expressed by the Law Society that because of the quality of data the experience on the ground is not as anticipated, if I can put it that way. Do you think it would be worth investing further time on that?
Dominic Raab: We will always look at it. I am giving you my understanding. As you can see, we measure the headlines very carefully, but there will always be challenges and we need to look at those very carefully.
Chair: Perhaps it will be helpful if we write to you with further examples.
Q95 Maria Eagle: On the Court of Protection, Secretary of State, one of the things I have noticed today is delays in various court systems, for whatever reason—I realise you are trying to work on them—which impact on citizens at the very time when they come into contact with the court, whether it is a criminal court, a civil court, the Court of Protection, or any of the courts we have been talking about today. Delays have been a theme.
My own view is that that is because Justice has been a non-protected Department since 2010 and has suffered some of the biggest cuts to resource, which I accept have now been reversed to a degree. As a consequence, there is a backlog of issues. General applications to the Court of Protection currently take 48 weeks to process. There is often a crisis and somebody’s affairs need to be dealt with; property, financial affairs and personal welfare. It becomes apparent only when there is a crisis that they cannot cope themselves any more, and an application to the Court of Protection is necessary. It then takes 48 weeks to process. Surely, that is completely unacceptable, isn’t it? What are you going to do about it? It causes deep distress to constituents of mine who suddenly find that they have to spend that length of time sorting out the affairs of an elderly relative who can no longer do it for themselves.
Dominic Raab: If you have examples, please send them to me. I am very happy to look at this in the round. I accept that these are very sensitive cases and we want to do better in the Court of Protection, as we do across the piece. If you have particular evidence in the feedback to the Committee, please send it my way or point me in the right direction if it is not publicly available. I am happy to add that to the list of things on which I will write back to you.
Q96 Maria Eagle: General applications take 48 weeks—almost a year—to process. How can that ever be acceptable?
Dominic Raab: We want to cut down on all the delays across all the tribunals, and that includes the Court of Protection.
Q97 Maria Eagle: Minister Pursglove wrote to us about enabling families and third parties to access small cash balances without the need to obtain legal authority. I think it is up to £2,500. That will solve a number of small issues, but do you have a programme to deal with reforming the Court of Protection or increasing its efficiency? Is any of your spending review money going to be applied to it?
Dominic Raab: Yes, of course. I can write to you with the allocation and set out some of that in more detail. They are often complex cases and have to be looked at very carefully. If you do not get them right, you create additional problems, but I am very happy to write back to you with any detail you need over and above what James has shared already.
Maria Eagle: If you do not get them done for a year it can create all kinds of problems as well.
Q98 Kate Hollern: The court reform programme that started in 2016 was expected to cost £1.3 billion. Can you tell the Committee how that programme has gone? It was supposed to be completed pre-pandemic in 2019 but does not appear to be on track.
Dominic Raab: Of course, it has been disrupted by the pandemic.
Q99 Kate Hollern: It was supposed to be completed before the pandemic.
Dominic Raab: I understand that. I am sure that the Committee has scrutinised my predecessors on it as well. Just to give you a sense of it, modernising the overall court estate—the physical capacity, the technology and things like the common platform which brings together the police, the CPS, HMCTS and legal professionals—is proceeding at pace. We have rolled it out to 101 courts. That is just under half. That is just one aspect of it.
If you look at the digital stuff on probate and divorce, the feedback is very positive. All of the digital stuff takes the pressure off cases that need an in-person hearing. There is quite a lot of progress. Although in one sense the pandemic has been highly disruptive, it has also encouraged and pushed the reliance, willingness, appetite and probably confidence to make greater use of the technology. There is more to do, but we have a good plan, and the necessity, urgency and focus to do things in a new way that perhaps was not there before. That is at least one of the positives that comes from what is otherwise a pretty appalling pandemic.
Q100 Kate Hollern: There have been statements that the common platform is not fit for purpose and that failures within the platform are causing staff members huge amounts of extra work and stress. What is your assessment of HMCTS’s response to those concerns? I believe the roll-out has been paused.
Dominic Raab: The roll-out is proceeding at pace. We have hundreds of cases being successfully completed in the system every day. You did not mention the date or source of your quote. If you can be more specific, or you want to send it on to me, I can respond to it properly, but it is difficult to know without having the identity.
Q101 Kate Hollern: It was the Public and Commercial Services Union.
Dominic Raab: We will take all constructive criticism. I am happy to go and look at the specifics, but this will be an important tool. It is just one part of the court reform programme and a good example of how we ought to expedite the digital revolution sweeping through the justice system, and a good example of where it will add value in terms of fairness and justice, and in the productivity of the system as a whole.
Q102 Kate Hollern: Are you quite confident that it is a good investment and that when we get it working properly it will give a good return?
Dominic Raab: The objective of integrating the relevant information in a case between the police, CPS, HMCTS and all the other legal staff that support it must be a good thing. Given everything we have discussed in this Committee, I cannot understand why anyone would object to it, if they are focused on the productivity of the system, the justice we are delivering and our scope for getting through things like the backlog. Maria made the point that we now have a much more integrated approach in this way. That is precisely what will help us deliver better outcomes and cut delays.
Q103 Kate Hollern: I do not think anyone would object to it, but what I am asking is whether it is value for money and working to plan, because there appear to be problems.
Dominic Raab: With any Whitehall IT programme, there are always challenges, but you have to learn as you go a little bit, and have a plan for adapting the system. That is difficult the more stakeholders there are engaged in it, but I am confident we will get there.
Q104 Chair: There were some reports of the common platform being paused, but you are telling me that is not the case.
Dominic Raab: There may have been pauses at points, but it is still proceeding at pace and we are still pushing it out. It is a phased project, but we are confident that we will continue with it.
Q105 Chair: If need be, we will write to you about that. Thank you for staying the extra time so that we could finish the topics under consideration.
Dominic Raab: Not at all. My pleasure.
Q106 Chair: It is much appreciated. We look forward to seeing you again no doubt at future sessions.
Dominic Raab: Chair, could I make one further point that has not come up? I have tried to articulate not just how we are dealing with some of the challenges but the reform programme that we are driving forward for victims, criminal justice and human rights. The pandemic has had a huge toll on everyone in the public sector. I pay particular tribute to my staff at the Ministry of Justice. The pace of reform and our agenda are striking and important for all the reasons that your Committee, from Maria to Kieran, has appraised and flagged, but we are really blessed with a terrific team at the MOJ from top down, and I am very lucky to have such an excellent Department. I want to put that on record.
Chair: That is kind, and I think it is justified and much appreciated. We are grateful to you for saying that. I am sure we associate ourselves with it. Thank you very much. The session is concluded.