Schedule
7
The
Commissioner’s 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).’.
The
Chairman:
With this it will be convenient to discuss
Government amendment No.
314.
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 commissioner’s 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
completion of their sentence. The amendments were necessary because of
the new immigration legislation appearing on the statute book and on
that basis I hope that the Committee can be persuaded to support them.
Amendment agreed
to.
Schedule
7
, as amended,
agreed
to.
Clause
31
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 prisoner—the typical person
affected—to 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
power of the commissioner to act properly in any given case, prevent him
from rejecting complaints, or make him do things which he would not
think proper in the ordinary course of. They would provide a little
more
justice.
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 authority’s 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
complaint—its 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
any comfort to the complainant in cases where the responsible authority
simply delays responding. For example, the responding authority may not
respond for 12 months. It could respond on 31 December to a complaint
made on 1 January. I assume that the commission would apply its
discretion in those circumstances, but that complaint would then be
time barred, however unreasonable the response of the authority.
Reasonableness works both ways and there should be not only a
reasonable period for investigation, but a reasonable expectation that
the authority will respond in a timely way to a complaint that is made
to
it.
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.
8.15
pm
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.
Clause
32
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.
(6B)
Where—
(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 bureaucratic—the hon.
and learned Gentleman is rarely accused of wanting that—and
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.
Mr.
Garnier:
On that basis, I am persuaded. I beg to ask leave
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 o’clock till
Thursday 22 November at Nine
o’clock.
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