Criminal Justice and Immigration Bill
The Commissioners complaints remit
Maria Eagle: I beg to move amendment No. 313, in schedule 7, page 160, line 1, leave out from first under to end of line 2 and insert
(a) the Immigration Act 1971 (c. 77);
(b) section 62 of the Nationality, Immigration and Asylum Act 2002; or
(c) section 36 of the UK Borders Act 2007 (c.30)..
Maria Eagle: As this method worked so successfully last time, I just want to say that these are minor technical amendments to schedules 7 and 8, which set out the commissioners complaints and deaths remits respectively. The amendments add a reference to section 36 of the UK Borders Act 2007, which provides for the detention of foreign national prisoners on the
Amendment agreed to.
Schedule 7 , as amended, agreed to.
Eligible complaints: specific requirements applicable to all complaints
Amendment made: No. 289, in clause 31, page 22, line 17, after ineligible insert by virtue of this section.[Maria Eagle.]
Mr. Garnier: I beg to move amendment No. 147, in clause 31, page 22, line 21, leave out one year and insert 3 years.
The Chairman: With this it will be convenient to discuss amendment No. 148, in clause 31, page 22, line 29, leave out three and insert 12.
Mr. Garnier: Clause 31 sets a limitation period for the bringing of complaints. Subsection (2)(a) provides a limitation period of no more than one year. After that year, the complaint is barred. I will read the relevant subsection so that the Committee understands what I am talking about:
Those requirements are...that a period of no more than one year
my amendment would make it three years
has passed since the relevant person first became aware of the matters giving rise to the substance of the complaint.
Amendment no. 148 deals with subsection (2)(c), which states that the requirements are that
where the responsible authority has responded to the substance of the complaint following such a communication (whether by rejecting it or by addressing it in some other way), that a period of no more than three months has passed since it did so.
I would substitute a period of 12 months.
First, I want to know why the Government have chosen a limitation period of one year for making an initial complaint, and a three-month limitation period for bringing a further complaint based on the adjudication. In civil law, a limitation period of three years is not unheard of. I appreciate that some torts have a limitation period of one year, but there is a procedure by which, if the complaint or the cause of action became known to the complainant only after that period has elapsed, the court has discretion to extend the period.
When we are dealing with prisoners, many of whom may be intellectually impaired, mentally ill or badly affected by substance abuse of one sort or another, one year will not necessarily for them to get their heads around the issues confronting them. Equally, three months is quite a short period of time for the typical prisonerthe typical person affectedto take advice or, off his own bat, to do something about the response from the responsible authority.
The amendments are not earth-shattering, but they are humane and sensible, and do not undermine the
Mr. Heath: I have listened very carefully to the hon. and learned Gentleman; I think that there is a proviso in subsection (3) to give the commissioner the discretion to waive the time limits where it seems appropriate to do so. My concern is slightly different. I agree with him about the three-month period; I am not so sure about the 12 months initial complaint limitation, but three months following the response is a relatively short time, particularly in the context of many of the people who find themselves on the prison estate.
My question to the Under-Secretary of State for Justice is different. Perhaps she will be able to help me by pointing out where else in the statute or in other regulations is the time limit for the responsible authority to respond to the initial complaint. Because, in the provision it would be perfectly possible for a not very responsible authority to delay its response to the person to the point where the complaint became time barred under subsection (2)(a). I can find no requirement in this part for the delivery of the responsible authoritys response to the substance of the complaint. As I say, that may be elsewhere in the complaints procedure or the Bill, but I am not sure where and I hope that the Minister may be able to help.
Maria Eagle: We believe that the time limit reflects the fact that investigation by the commissioner, which is an administrative process rather than a judicial one, is most useful when engaged with matters that are reasonably fresh and still capable of worthwhile resolution. We consider that, in the vast majority of cases, the deadlines set out in clause 31 will give complainants sufficient time to raise grievances with the commissioner.
In setting a time limit, we have followed two main principles: first, that the commissioner will not act on complaints beyond a year; and, secondly, that the person must have given the prison or the body complained against a reasonable opportunity to deal with the substance of the complaint, which relates to the point that the hon. Member for Somerton and Frome made. I do not think that we define in part 4 or elsewhere in the Bill what that period should be; it would depend on the facts of each individual case. There will be some minor complaints to which it would be reasonable for the controlling authority to respond quickly and there will more complex complaints that take longer to deal with. Reasonable is one of those words that ought to be clear, one hopes, from the context of the complaintits seriousness, when it was made and so on. That is subject to common sense.
Mr. Heath: I accept that, but at the moment the provision gives comfort to the authority that it will have reasonable time to respond. I agree that common sense suggests that a complex complaint will take longer to investigate. However, the clause does not give
Maria Eagle: The hon. Gentleman has answered his own question in the sense that the person who has made the complaint is not getting a response. He still has three months from when he gets the response to refer the matter to the commissioner. If the controlling authority sits for 12 months without responding, that is a case in which the commissioner might well exercise the discretion that we have given him in clause 31 to act on complaints made outside the deadlines, if he has good reason to do so. If a delay was the fault of the body concerned, that might be a very good reason to deal with the complaint and I am sure that that is what would happen in practice.
This is not a formal judicial court procedure in which the limitation has to go into years. We think that the commissioner is dealing with situations in which the speedy resolution of complaints is best. We believe that the time limits set out in the clause are appropriate, but as a back-stop, the commissioner has the discretion to act outside those time limits if he feels that, in the circumstances, justice would not be served if the deadlines were adhered to strictly. On that basis, I hope that the hon. and learned Member for Harborough feels able to withdraw his amendment.
Mr. Garnier: I did not propose the amendment thinking that it would make the Government change their mind, and I take into account the wording of subsection (3). However, at the moment the default setting would be governed by the periods of one year and three months. Therefore, the complainant would have to persuade the commissioner to do something to extend those periods in the right circumstances. I would prefer there to be a longer period for consideration in subsection (2)(a) and (c). The commissioner would therefore not have to use his discretion in subsection (3). Bearing in mind the sort of people who are likely to be making the complaints, there will be a need for the commissioner to exercise his power under subsection (3) rather more often than he might like. That is the simple reason why I want to change the periods set out in subsection (2).
I shall not press the amendment to a Division, but I urge the Government, if a lot of complaints are coming in out of time once the commissioner is up and running and he is spending far too much time dealing with out-of-time applications, to consider reconsidering the limitation periods. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 290, in clause 31, page 22, line 21, leave out relevant person and insert complainant.
No. 291, in clause 31, page 22, line 38, at end insert
(5) For the purpose of determining whether a part of a complaint is ineligible by virtue of this section, any reference in this section to a complaint may be read as including a reference to a part of a complaint..[Maria Eagle.]
Clause 31, as amended, ordered to stand part of the Bill.
Treatment by Commissioner of complaints
Amendments made: No. 292, in clause 32, page 22, line 44, at end insert
The duty under paragraph (b) is subject to the following provisions of this section..
No. 293, in clause 32, page 23, line 8, leave out subsections (4) to (6) and insert
(4) The Commissioner shall reject the whole or any part of the complaint if
(a) when considering the eligibility of the complaint under subsection (2), or
(b) at any time before the complaint has been fully dealt with,
the Commissioner decides that the complaint or part of the complaint is ineligible.
(5) The Commissioner need not decide that the whole or part of the complaint is ineligible so long as the Commissioner considers that it is or might be eligible.
(6) The Commissioner may (for any reason not relating to eligibility) decline to take, defer or stop taking action to deal with the whole or any part of the complaint.
(6A) Where the Commissioner
(a) rejects part of a complaint, or
(b) declines to take or stops taking action to deal with part of a complaint,
the rest of the complaint shall be dealt with subsequently as if it were the complaint made by the complainant.
(a) the whole or any part of a complaint has been rejected, or
(b) a power under subsection (6) has been exercised,
the Commissioner may decide to re-open (and take action or further action under subsection (3) to deal with) the whole or any part of the complaint.
(6C) But a complaint or part of a complaint may not be re-opened unless the Commissioner considers that it is or might be eligible.
(6D) Where part of a complaint is re-opened it may be dealt with subsequently as if it were a separate complaint made by the complainant..[Maria Eagle.]
Mr. Garnier: I beg to move amendment No. 150, in clause 32, page 23, line 27, after complainant, insert in writing.
The Chairman: With this it will be convenient to discuss the following amendments: No. 151, in clause 32, page 23, line 30, after Notification, insert
to persons other than the complainant.
No. 152, in clause 33, page 23, line 43, at beginning insert not.
Mr. Garnier: The issue is simple: whether the commissioner, having reached a conclusion on a complaint, should make his decision known in writing. The Government seem happy that, in certain circumstances, he should give his answer in oral as opposed to written form. I suspect that when dealing with the sort of people who are likely to make complaints about the conduct of the system of offender management and prisons, a written answer would be preferable and more sensible, as it would prevent misunderstandings.
In amendment No. 150, I suggest that the commissioner should notify the complainant in writing with a brief statement of the reasons for his decision, and may notify such other persons as he sees fit. Amendment No. 151 deals with the notification of other people, which should be clarified so that subsection (8) states: Notification to persons other than the complainant may be given orally. That ties in with amendment No. 150. Amendment No. 152 deals with subsection (2), which states that the Commissioner may make a report orally. I suggest that it should state that the Commissioner may not make a report orally, which is consistent with my other amendments.
By and large, complainants will come from the category of convicted persons. We know about problems of illiteracy, intellectual capacity and drug habits and the difficulties that many offenders have in coming to terms with all sorts of things, and coming to terms with an oral response to a complaint will not necessarily be easy for them. The short answer is why not save us a lot of bother and uncertainty by requiring the commissioner to make the reports in writing? It may well be that, as a matter of practice, he will make the reports in writing, but there is no harm in putting it in the Bill.
Maria Eagle: Amendment No. 150 would require the commissioner to notify the complainant in writing if a complaint was rejected or a complaint investigation was deferred, stopped or reopened. Amendment No. 151 would only permit such notification to be made orally to persons other than the complainant. Amendment No. 152 would prevent the commissioner from making a report of a complaint investigation orally.
The hon. and learned Gentleman has set out his reasons for tabling the amendments. We consider that flexibility regarding the form of the report is needed, and we want discretion to be with the commissioner. He needs to be able to maximise his efficiency and the effectiveness of his responses by tailoring them to the needs of recipients and the circumstances of each case. We expect that in the majority of cases, as the hon. and learned Gentleman ended by saying, written notifications and reports will be the norm, but in some circumstances it may well be appropriate for the commissioner to relay such information orally.
For example, it is possible that some complaints relating to minor or straightforward matters could be resolved by a few brief telephone conversations between the complainant, the commissioner and the prison. In such circumstances, it might be unduly bureaucraticthe hon. and learned Gentleman is rarely accused of wanting thatand burdensome for the commissioner to have to produce a full written report.
We believe that the commissioner is best placed to make judgments and decisions about whether it would be appropriate for such reports or notifications to be made orally, based on the needs of each complainant and the circumstances of each case. However, we expect that the commissioner will produce and publish detailed guidance about the procedures for dealing with complaints, complainants and the bodies against whom the complaints are made. He should set out more fully his views in the guidance. I agree with the hon. and learned Gentleman that the majority of substantive complaints will have written responses or reports. I hope that, on the basis of my explanation, he will be persuaded to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 294, in clause 32, page 23, line 25, after the insert whole or any part of the.
No. 295, in clause 32, page 23, line 26, leave out (5)(a), (b) or (c) and insert (6) or (6B).[Maria Eagle.]
Clause 32, as amended, ordered to stand part of the Bill.
Clause s 33 and 34 ordered to stand part of the Bill.
Further consideration adjourned.[Mr. Khan.]
Adjourned accordingly at twenty-four minutes past Eight oclock till Thursday 22 November at Nine oclock.
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