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Criminal Justice and Courts Bill

Volume 582: debated on Tuesday 17 June 2014

Consideration of Bill, as amended in the Public Bill Committee

New Clause 52

Procedure for certain planning challenges

‘Schedule (Procedure for certain planning challenges) contains amendments—

(a) that require leave of court to be obtained before certain planning applications may be made, and

(b) that set out a procedure for challenging costs orders made in connection with certain planning orders and decisions.’—(Mr Vara.)

This amendment introduces a new Schedule (see amendment new Schedule 3) which provides that challenges to a range of planning-related decisions and other actions may only be brought with the leave of the High Court; and enables challenges to costs orders connected with some planning decisions and actions to be challenged as part of the same application.

Brought up, and read the First time.

With this it will be convenient to discuss the following:

Government new clause 13—Periods of time for certain legal challenges.

New clause 53—Application of provisions to environmental claims

‘(1) Sections 55 to 60 of this Act shall not apply to judicial review proceedings which have as their subject an issue relating wholly or partly to—

(a) the state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b) factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of sub-paragraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making;

(c) the state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in sub-paragraph (b) above.”

This amendment limits the application of the provisions of this Act on judicial review proceedings which relate to the environment, in line with the definition of environmental information in the Aarhus Convention.

Government new schedule 3—Procedure for certain planning challenges.

Government amendment 1.

Amendment 23, page 55, line 12, leave out clause 55.

Amendment 24, in clause 55, page 55, line 16, leave out “must” and insert “may”.

Amendment 25,  page 55, line 18, leave out “not” and insert “decide not to”.

Amendment 26, page 55, line 20, leave out “highly likely” and insert “inevitable”.

Amendment 27, page 55, line 31, leave out “highly likely” and insert “inevitable”.

Amendment 28, page 55, line 32, leave out “must” and insert “may”.

Amendment 29,  page 55, line 35, leave out

“conduct (or alleged conduct) of the defendant”

and insert “procedural defect”.

Amendment 30,  page 56, line 15, leave out

“conduct (or alleged conduct) of the respondent”

and insert “procedural defect”.

Amendment 31, page 56, line 19, leave out “highly likely” and insert “inevitable”.

Amendment 32,  page 56, line 21, leave out “must” and insert “may”.

Amendment 33, page 56, line 28, leave out clause 56.

Amendment 34, page 57, line 25, leave out clause 57.

Amendment 35, page 58, line 2, leave out clause 58.

Amendment 36, in clause 58, page 58, line 11, leave out subsections (4) and (5).

Amendment 51, page 58, line 11, leave out subsections (4), (5) and (6) and insert—

‘(4) On an application to the High Court or the Court of Appeal by a relevant party to the proceedings, the court may order the intervener to pay such costs as the court considers just.

(5) An order under subsection (4) will not be considered just unless exceptional circumstances apply.

(6) For the purposes of subsection (5), exceptional circumstances include where an intervener has in substance acted as if it were the principal applicant, appellant or respondent in the case.’

Amendment 37,  page 58, line 18, leave out “or (5)”.

Amendment 38, page 58, line 34, leave out clause 59.

Amendment 42, in clause 59, page 58, line 41, leave out

“only if leave to apply for judicial review has been granted”

and insert

“at any stage of the proceedings.”

Amendment 39, page 59, line 32, leave out subsections (9) to (11).

Amendment 40, page 60, line 11, leave out clause 60.

Amendment 44, in clause 60, page 60, line 29, leave out “must” and insert “should normally”.

Amendment 41, page 60, line 31, leave out subsections (3) to (5).

May I say at the outset that I propose to speak first to the Government amendments and then to let hon. Members speak to their amendments, to which I will reply at the end of this debate?

Clause 62 creates a permission stage for statutory challenges under section 288 of the Town and Country Planning Act 1990 in relation to English matters. In Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) tabled a number of technical amendments that sought to tidy up and harmonise procedures across the planning regime. I responded that we needed more time to properly consider the amendments.

Following further consideration and discussions with my hon. Friend and the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Grantham and Stamford (Nick Boles), who has responsibility for planning, the Government now seek to advance proposals to extend the permission stage to other planning-related statutory challenges; to simplify procedures to enable challenges to costs awards connected to some planning and listed building decisions to be challenged as part of the same application; and to standardise the start time for various planning-related statutory challenges.

Amendment 1, new clause 52 and new schedule 3 omit clause 62 and replace it with a new clause and schedule that set out where leave of the court is required to bring planning-related statutory challenges. The amendments to section 288 of the Town and Country Planning Act that were originally set out in clause 62 affected only challenges to decisions concerning English matters. The amendments in this new schedule are broader, ensuring that the leave requirement applies in all section 288 cases.

The new schedule also requires leave of the court before challenges can be brought to a range of planning-related decisions, orders, actions and documents. It will affect section 287 of the Town and Country Planning Act 1990, which relates to challenges to decisions concerning simplified planning zones, highways and rights of way orders, and relief of statutory undertakers from obligations. It will also affect section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990, which concerns challenges to listed building consent procedures; section 22 of the Planning (Hazardous Substances) Act 1990, which relates to challenges to hazardous substance consent decisions; and, finally, section 113 of the Planning and Compulsory Purchase Act 2004, which relates to challenges to development plans.

It makes sense to have consistency across these different types of challenges and I am grateful to my hon. Friend the Member for Bromley and Chislehurst for bringing the issue to my attention. I agree with him that requiring leave in some types of cases but not in others could create difficulties for the new planning court, at a time when we are trying to make things simpler and speed up planning cases. The efficiency of the court system is a matter for Government to consider across both England and Wales, and these amendments apply to the whole jurisdiction.

New clause 52 and new schedule 3 also permit challenges to awards of costs relating to planning and listed building decisions to be brought as part of the substantive challenge under section 288 of the Town and Country Planning Act or section 63 of the Planning (Listed Buildings and Conservation Areas) Act.

At the moment, when an award of costs is made, it can be challenged only through an application for judicial review. That is separate to the application for statutory review of the substantive decision. Allowing costs to be challenged as part of the section 288 or section 63 challenge would remove the need for an aggrieved party to make two separate applications to the High Court and pay two separate filing fees.

New clause 13 standardises the date from which various challenges may be brought to the day after the relevant decision has been made. Planning challenges have to be brought within six weeks. Moving the start time to the day after the decision date is consistent with the approach taken in the civil procedure rules for judicial review claims. This is a harmonisation measure designed to assist in the smooth working of the new planning court and to reduce the scope for error by claimants.

I urge the House to accept amendment 1, new clauses 13 and 52, and new schedule 3.

I will address all the Government and Opposition new clauses and amendments, but I will spend more time on the provisions dealing with judicial review than the new clauses on planning, partly because the latter are relatively uncontroversial.

Yesterday, the Prime Minister held a party for the 799th birthday of Magna Carta. He said that it was the foundation of all “our laws and liberties”, and made us citizens not subjects, with “rights, protections and security”. He is right about that. Later this afternoon, we will debate new clauses on sentencing for a second offence of possessing a knife. The Deputy Prime Minister objects to that proposal, partly because it includes minimum sentencing, which carries

“a serious risk it could undermine the role of the judges”.

He is wrong about that in relation to the new clauses, and he and his party have supported minimum sentencing when it has suited them to do so. Right or wrong, however, one has to applaud the sentiment that the rule of law and the importance of a strong and independent judiciary are the most important protections against the arbitrary or incorrect use of Executive power, especially in a country with no written constitution.

Sadly, such sentiments and lip service are all we can expect from a coalition Government who, in no less a person than the Lord Chancellor and Secretary of State for Justice, have done more to undermine the rule of law and the operation of the legal system than any Government in modern times. They have presided over the dismantling of civil legal aid and now of criminal legal aid, the privatisation of the probation service, chaos in those courtrooms that are still open, an overcrowding crisis in our prisons, the expansion of secret courts, attacks on human rights, and restrictions on access to justice for victims and those of limited means. Yesterday, to mark Magna Carta day, protests took place outside courts across the country.

In part 4 of the Bill comes the coup de grace—a frontal assault on the key legal remedy of judicial review. Alongside new fees, cuts in legal aid and shorter time limits, the cumulative effect of the proposals in the Bill is to hobble the principal method by which the administrative court can prevent unlawful conduct by the state in the way in which it, in all its manifestations, makes decisions.

One of the 17 experts who gave evidence to the Public Bill Committee memorably described the Government’s proposals for judicial review as a “constitutional provocation”; 16 of the 17 opposed them outright. The seventeenth, the head of planning for Taylor Wimpey UK, did support them, but slightly undermined his case by confessing:

“I have only had sight of the Bill…and I am attending at late notice”.––[Official Report, Criminal Justice and Courts Public Bill Committee, 13 March 2014; c. 151, Q341.]

It is not surprising that the Secretary of State could find no one qualified to support his position, which, as usual, is based on his gut instinct that judicial review is used to defeat Government policy for political reasons and that, as he confided to the Daily Mail, it is

“a promotional tool for countless Left-wing campaigners.”

The truth is that it is inconvenient for the Government when, for example, the High Court and the Appeal Court rule that they acted unlawfully in trying to close Lewisham hospital A and E. No doubt some doughty left-wing campaigners supported that judicial review—not least my hon. Friends the Members for Lewisham East (Heidi Alexander) and for Lewisham West and Penge (Jim Dowd), and my right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock)—but they won because the Secretary of State for Health acted outside the law.

Clauses 55 to 60 will give protection to such unlawful acts in the future. That is why Labour wholly opposes the proposals for judicial review, and wishes judicial review to be preserved as an essential check on Executive power, as does every serious judicial and professional body that has spoken on the matter. Lord Dyson, the Master of the Rolls, has said that

“there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”.

The former Lord Chief Justice Lord Woolf has said:

“In our system, without its written constitution embedded in our law so it can’t be changed, judicial review is critical.”

He added that the Ministry of Justice is showing a

“remarkable lack of concern for the precision of the facts”.

Lord Pannick has said:

“It is ironic that judicial review now needs protection from a politician whose reforms would neuter its force by the use of political slogans that have no factual basis and are ignorant of legal and constitutional principle.”

Most recently, the Joint Committee on Human Rights—I am pleased that its Chair, my hon. Friend the Member for Aberavon (Dr Francis), is in the Chamber to take part in the debate—found no merit in any of the Government’s arguments. Its report stated:

“We…do not consider the Government to have demonstrated by clear evidence that…judicial review has ‘expanded massively’ in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate.”

The truth is that any problems in the administrative court that were caused by the growth in the number of judicial reviews in the area of immigration were resolved by transferring such cases to the immigration tribunal. The process of rationalising the tribunals system, which we started in government, is continuing with the setting up of the planning court.

The first group of new clauses and amendments complement that approach by bringing planning challenges in line with the processes for judicial review in respect of leave and time limits. First, certain decisions may be challenged only by a statutory review, but leave is not required to bring a challenge. The leave of the High Court will now be required in such cases. Secondly, challenges to costs awards will be dealt with as part of the statutory review of a decision. Thirdly, the six-week challenge period will be calculated from the day after the decision is taken. Those practices are more restrictive than the current ones, but we do not oppose them, on the basis that they are tidying proposals that are consistent with other processes that are in place.

I will move on to the amendments that appear in my name and that of my hon. Friend the Member for Barnsley Central (Dan Jarvis). We do not support any of the Government’s proposed restrictions in clauses 55 to 60, which we seek to leave out of the Bill. As there will not be time to vote on every amendment, however, we will seek to divide the House on removing the two most immediately damaging proposals. Amendment 23 would delete clause 55, which is known as the highly likely test, and amendment 35 would delete clause 58, which imposes costs on interveners. It seems to us that that is the clearest and most thorough way to improve the Bill, but, for completeness, we also support the other amendments in the group that have been tabled by the Chair of the Joint Committee on Human Rights and others to amend the existing clauses to similar effect.

Clause 55 requires that, where a respondent asks, the court should consider whether, had the relevant authority acted lawfully, it would be

“highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

Our belief, which is shared by the Joint Committee, is that that reveals a significant lack of understanding about the purpose of administrative law and the function of judicial review. It confuses unlawfulness with remedy and will encourage bad decision making by the Executive. We want the status quo to prevail. That is, the test should be whether the same outcome would be inevitable. Amendment 23 would leave out clause 55 entirely. The alternative amendments, amendments 24 to 32, would restore the status quo. All those amendments have the support of the Joint Committee in its report.

Amendments 33 and 34 would leave out clauses 56 and 57. Those clauses require the court to consider whether to make an order for costs against any organisation or individual beyond the applicant. Justice, the civil liberties group, gave troubling examples of how those proposals may have a chilling effect. If a charity obtains a donation for the purposes of pursuing litigation, will the court be capable of enforcing a costs order against the donor for any sum? What will happen if a solicitor or law centre acts pro bono when a claimant is unable to secure legal aid? Will family members who support litigation brought by a vulnerable or disabled relative who is seeking to challenge the withdrawal of services be affected? Those questions have not been satisfactorily answered and the changes that are proposed in clauses 56 and 57 should be better defined before Parliament approves them.

Clause 58 states that third parties such as non-governmental organisations, charities and human rights organisations—all those who regularly intervene in judicial reviews—will face orders for costs against them on an application by any party, except in exceptional circumstances. That the Government would target interveners in that way is both chilling and counter-productive. The role of interveners is most often to assist the court, and the most frequent interveners are organisations such as Liberty and Justice, whose expertise has proven invaluable in many cases. Often, in an adversarial system, it is only the intervener who identifies the core issue for the court to decide.

Opposition amendment 35 would leave out clause 58. Amendments 36 and 37 would have much the same effect by restoring judicial discretion as to costs. The hon. Member for Cambridge (Dr Huppert) and others have tabled amendments on this subject. I hope that they will see the force of the argument for voting out clause 58, which would have much the same effect as their amendments. I do not think that we need to split hairs over this matter.

Clauses 59 and 60 place the making of protective costs orders on a statutory footing. Opposition amendments 38 to 40 and 42 agree with the views of the JCHR, which concluded that restricting PCOs to cases where permission for judicial review had already been approved was

“too great a restriction and will undermine effective access to justice.”

It also rejected the

“need for the Lord Chancellor also to have the power to change the matters to which the court must have regard when deciding whether proceedings are public interest proceedings.”

Clause 61 purports to give protection in costs in environmental cases, as required by the Aarhus convention. Although we do not oppose that, we believe that the proposal is flawed because it is not comprehensive and because the precise effect of this important issue is left to the Secretary of State by way of regulations. Opposition new clause 53 would remedy those defects.

Taken as a whole, these changes are designed to hobble judicial review to such an extent that its true purpose—to hold the state to account—may be severely weakened, if not lost. That is an extraordinary position for a Lord Chancellor to take. We know that he is the first non-lawyer to hold the post of Lord Chancellor in more than 300 years, but he must brush up on his British constitutional history. Now that the Secretary of State for Education has stopped the circulation of the Prime Minister’s copies of Magna Carta to schools, there must be a lot of copies lying around in Downing street. The next time the Lord Chancellor is there—unless it is for the reshuffle—perhaps he should read a copy. He will find the memorable words:

“We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Upholding the rule of law and allowing the citizen to challenge the state and other powerful interests are at the heart of our constitution. Judicial review became, in the 20th century, an effective tool for effecting those rights. It is that which the Government now seek to fetter.

I will speak in particular about clause 58 on interveners, about which the hon. Member for Hammersmith (Mr Slaughter) has just spoken, and about amendment 51, which I tabled. I spoke about this issue in some detail in Committee and my view has not changed. In the interests of other Members, I will not go through every single argument that was made in Committee.

There is no doubt that interveners are a positive thing. We should welcome them in our legal system. Baroness Hale of the Supreme Court said:

“interventions are enormously helpful... They usually supply arguments and authorities, rather than factual information, which the parties may not have supplied.”

We should be grateful for that work and for the benefits that we receive.

The status quo does not allow just anybody to intervene. No organisation has a free right to intervene whenever it wants. It is up to a judge who intervenes. The judge can say, “Yes, I would like to hear from you. I don’t want to hear from you about this point. I would like to hear about that issue.” The judge has complete control. They can take lots of interventions or a small number. They can say how much information people are allowed to provide. The judge also has the right to invite somebody to intervene who has not even applied. A court can say, “We would very much like to hear from this person.” Judges therefore have huge discretion. Where there are abusive cases, judges already have the ability to say that they do not wish to hear from somebody.

We made some progress in Committee. We clarified that when a judge invites somebody to intervene, clause 58 will not apply to them. That is very important and it was not clear previously. It certainly was not clear to me and I do not think that it was clear to others. It would obviously be unreasonable to say, “The court has asked you to do something and now you must pay not only your costs, but everyone else’s costs for the privilege.”

I am yet to meet an organisation that intervenes that particularly wants its costs to be covered. That is not the way it usually works. Such organisations accept that they should pay their own costs. What they are concerned about—quite rightly—is the idea that they should have to pay the unenumerated costs of other people. They will have no idea at the beginning of a case how much those costs are likely to be. There could be a very high bill and that will have a chilling effect.

The case the Minister has put repeatedly—as I am sure he will do later—is that there are abusive cases such as when, for example, an organisation finds somebody typically impecunious to front-up a case for judicial review. The organisation then intervenes to make the case, but it knows that the costs cannot be met because the individual is impecunious—I hope the Minister will agree that that is the description he has given. If there are such cases, they are an attempt to avoid the normal rules—fiddling a judicial review—and I share concerns about that. I would be interested to hear how many such cases there have been.

There are, however, many other cases where interveners do not act. In some cases, interveners are intervening on and helping with a specific, exact case, which we should welcome and support. There are also instances where interveners help with a specific case and highlight a general case. To take the example of a child who is not getting support from the local authority—I am aware of many such cases—the problem is not only that that child is not getting help, but that many other children do not receive help. It would be helpful for local authorities and the justice system for everybody to know the rules. We should not just fix one wrong; we must make clear how the system ought to work.

I took a particular interest in the S and Marper case in which Liberty intervened. When it intervened in the Court of Appeal, Lord Sedley said that he found the written submission “of great assistance”—it was a written submission, so it should not have taken long in court—and that the distinction was “crucial” to what the Court had to decide. That was not because of the individuals involved, but because of a broader general issue.

I reject completely the idea that, as I think the Justice Secretary said, such cases are brought only by “left-wing lawyers”—left-wing lawyers such as the Countryside Alliance, the Daily Mail, The Daily Telegraph, the Treasurer of UKIP, Conservative peer Lord Rees-Mogg, and various Conservative councils. All sorts of people make use of the powers for good reason.

In Committee I proposed an amendment to remove clause 58, as that seemed the cleanest and simplest way to keep to the status quo and retain judges’ ability to intervene. Since then, I have accepted that there may be some abusive cases where the current system does not quite work, and although judges still have such power, I accept the argument that in those rare cases something could be changed.

I appreciate the hon. Gentleman letting me make an intervention and therefore be an intervener. He says there may be rare cases of frivolous or exploitative interventions, yet none of the witnesses before the Committee could give examples of when they were aware of that.

The hon. Lady is right and I will not charge her for my costs in responding to her intervention—I am sure the Minister will not want to either. She is right, but my challenge was to the Minister to identify such cases. If there are any cases—I imagine that there are, because not being a lawyer I know that lawyers are creative at finding ways around the rules—we should try to fix that. However, I think such cases are the minority.

I withdrew my amendment in Committee because I wanted to see what the Minister could do, and he agreed to consider whether there was a way to improve the clause before Report. I had high hopes that the Minister—who comes from the wonderful county of Cambridgeshire—would have been able, with all the resources of the Ministry of Justice, to come up with something that would capture what we do. We should make it clear that we are clamping down on abusive cases, and say, “Whether or not they are happening, they can no longer happen”, and leave everything else alone. I hoped that in just under three months since the Committee proceedings the Minister might have achieved that, but it has not happened. I am disappointed, because it does not seem to be too hard.

I have done my best to provide suggestions, and I have met the Minister and sent in a number of possible ways forward. Today I wish to debate one of those possibilities, to see whether I can get a formal response from the Minister and whether he will look at it as a way forward and ensure we address the issue, even if that has to be in the other place. I turned to the Supreme Court rules as a possible approach. The Government seem happy with those rules on interveners and are not proposing to change them in any way. The rules would certainly be accepted by many legal professionals, given that they seem to work for the Supreme Court—I have heard no concerns. Article 46(3) of the Supreme Court rules state:

“Orders for costs will not normally be made either in favour of or against interveners but such orders may be made if the Court considers it just to do (in particular if an intervener has in substance acted as the sole or principal…appellant or respondent).”

That seems to capture what the Minister says he was trying to achieve, and I think we would all be relatively happy with that. There would not normally be such measures, but where somebody has acted as though they should be the person taking the case, it would be covered.

That led me to table amendment 51, which tries to capture that concept—it may not have caught it absolutely and I would be happy to hear the details, but it strikes me as a way forward. It provides a way to deal with the problems the Minister is concerned about, without stifling the interventions that I think all in this House—from the Joint Committee to many Members from all parties who I have spoken to—would want to protect.

The clause is not acceptable as it stands, and I do not think it will or could become law as currently drafted because of the problems it would cause. I hope the Minister will fix this issue promptly at an early stage in the other place, and that he will consider amendment 51 as a possible way forward.

I wish to speak broadly to amendments 23 to 32 to clause 55 in part 4 of the Bill, and to the “highly likely” test on judicial review. I also wish to share my thoughts on the specific proposals for judicial review, based on the recent experiences of the Liverpool City and South Yorkshire regions, which directly affects my constituents. As a precursor, I should say that I accept that the number of judicial review cases has risen in recent years, but I am not certain that the proposed revision of judicial review would give a fair outcome to those parties seeking review, or tackle the reasons why instances of judicial review have increased.

In particular, I wish to address the idea that the likely outcome would be assessed as part of the process leading to the granting of a judicial review, rather than the legality of the process leading to the said outcome. On 7 February the South Yorkshire and Liverpool regions won a joint High Court action that ruled that cuts in European funding were unlawful. Lawyers bringing that action argued that the significant reduction in funding of 65% was disproportionate compared with other areas.

Evidence presented to the Court at the time showed that Ministers allocated €150 million less to Liverpool City region, and almost €90 million less to South Yorkshire, than they had estimated their share to be. Obviously, that could not be fair. It meant that over the next seven years, funding to Liverpool City region worked out at €147 per head, compared with €380 in the previous funding round from 2007 to 2013. A judicial review case was filed in September 2013, and the process, rather than the outcome, was deemed out of order. The judge requested the High Court to order the Government to adjust their allocation of funding from Europe because of the flawed calculation method used to distribute €10 billion from the European regional development and European social funds. Had that decision not been challenged, the funding that would have been allocated to Liverpool City region and South Yorkshire would have been spread across other regions.

Under the judicial review process as it stands, South Yorkshire and Liverpool were right to file for judicial review, as they believed that the process by which the decision was made was flawed. Logic would suggest that if the process behind the decision was flawed, the likelihood is that the decision itself would be flawed. Unsurprisingly, the judge ordered the Government to reconsider the funding arrangement.

The difficulty is that we will never know what would have happened if the Government’s proposals on judicial review had been in place at the time of that specific case. I suspect that the Government, already having a series of funding arrangements in mind, would have granted the same levels of funding to South Yorkshire and Liverpool, regardless of the process under which the funding allocation was decided. If, at the application stage, it was deemed that South Yorkshire and Liverpool would have been likely to receive the same amount of funding, their application would have been taken no further. To be clear: in South Yorkshire and Liverpool, I suspect that the likely outcome would have been assessed as the same in this case, regardless of the flawed process. Therefore, at the beginning of this process, the case may have been unable to proceed—a case in which 3.6 million people living in those regions would have not been able to access €10 billion-worth of funding.

Such considerations—those predictions of likely outcomes—will now become law under the Government’s plans. I have no doubt that in some areas judicial reviews may be seen as wasteful, but at the same time I strongly believe that the case I have referred to would not have made it to court under the new proposals.

Was the process flawed? Yes. Is the outcome likely to be similar? Perhaps, yes. Does that mean that the people of the Liverpool City and South Yorkshire regions should not have been afforded the opportunity to challenge? No. On the slim chance that the outcome would change for them, taking the case to the courts would have seen the two regions immeasurably better off. It is only right that the people of those regions be allowed to challenge that decision.

A faulty process often leads to a flawed decision, and even if the outcome might be the same, we need to consider those rare cases in which the outcome is predicted to stay the same so judicial review is not granted, but the outcome is then prevented from being different. In their current form, these plans would prevent case law from forming based on the one in 100 cases in which the outcome might have been predicted to stay the same but in fact did not stay the same. We are taking the power of the formation of case law away from judges, and we are instead putting the power of decision making into the hands of people less experienced in making such decisions.

I implore the Minister to look at the case of the Liverpool City and South Yorkshire regions as an example of why judicial review should be granted not on the basis of the likely outcome, but on the basis of the process of decision-making. We must allow flawed processes to be challenged, so that for the cases in which an outcome is different, the people involved are granted that outcome, rather than having it snatched away from them before it goes to court.

I thank the Minister for the constructive way in which he has engaged with me and others on the planning amendments. I welcome the stance that the Government have taken on these matters and I know that welcome is shared by the legal profession and planning professionals. The Minister is right to say that these are not necessarily the most headline catching of measures in the Bill, but they are important and valuable because they are consistent with the approach that the Government have adopted—in this instance, also supported by the Opposition, I am glad to say—towards the rationalisation of the planning process and the speeding up of the process of development.

These measures are significant, because a successful and smooth planning process, including the judicial element of potential challenges, is critical, not only to the legal process but to environmental protection and the economy. One of the problems that has been encountered in the past is that some of the duplications and delays in the system were a disincentive to bringing forward the sort of development that we all want to see. This is an opportunity to rationalise the process, and I am glad that the Government have taken it.

I also thank the hon. Member for Hammersmith (Mr Slaughter) for his approach in Committee, as well as the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Grantham and Stamford (Nick Boles). I also thank officials in the Ministry of Justice and the Department for Communities and Local Government—some of whom are in earshot—who took my Lazarus-like reappearance on the scene of planning law in good grace and engaged most constructively with me. I also want to thank Richard Harwood QC and other members of the planning and environment Bar who did a lot of work in the drafting of the detail of the amendments.

My hon. Friend the Minister has given me the bulk of the cherry that I asked for in Committee, but the Government have not been able to make progress on a couple of issues. I invite him to be mindful of the need to keep a careful eye on the operation of the planning court, because some matters may be picked up through the civil procedure rules and may provide a constructive means of taking forward further reforms.

Before my hon. Friend’s fascinating speech terminates too soon, I wonder how much difference he thinks the proposals will make to smoothing planning processes and getting sensible development under way.

My right hon. Friend takes a particular interest in these matters, and we are ad idem—as lawyers would say—on the subject. I think we can achieve a significant saving in time. For example, it will no longer be necessary to bring parallel applications for judicial review and costs, and that will save time and costs, because it is clearly a disincentive to have to bring two separate sets of legal proceedings. Even if they are later consolidated for the purpose of the hearing, costs are involved.

My right hon. Friend makes the important point that there will be a saving in terms of costs to the litigants—the potential proponent of a scheme and those who might have cause to object—and a hidden opportunity-cost saving to the Courts and Tribunals Service. Even if the hearings are ultimately consolidated, there is an administrative burden on the courts in processing the parallel matters. Significant sums—reckoned to be in the millions of pounds—can be saved. That may not seem like a massive amount in the overall scheme of things, but it will be valuable.

I also hope that the proposals will help to change the culture. That is an important point that my right hon. Friend and I have talked about in the past. Litigants in planning matters will be encouraged to resolve matters at the earliest possible opportunity and bring forward cases that have been sensibly brought together.

The setting up of the planning court has been warmly welcomed by the profession, but it has one concern that my hon. Friend the Minister might take back to the Lord Chancellor—and, through him, to the Lord Chief Justice—about the supply of judicial material, if I may put it that way, for the courts. There are a limited number of experienced judges and deputy judges in planning work. Now that we have this new, improved and streamlined structure, it is important that we have sufficient judicial personnel to man the court to carry out the process adequately. It is a rarefied and specialist sphere, although I regret to say that it is not one that I practised at the Bar—probably to my disbenefit, and certainly to the disbenefit of my bank manager. The pupillage in criminal chambers came through before the pupillage in planning chambers that I had also applied for, so I ended up in the same boat as the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright)—as a criminal practitioner.

One further point on planning may be a deliberate or passing omission. I wish to check with the Minister whether he intends to look, in due course, at the time frame for proceedings under section 113 of the Planning and Compulsory Purchase Act 2004. It would seem logical to try to deal with those matters at the same time, and I hope that it will be possible. That does not appear in the new clause and schedule, which encompass most of the other matters, but perhaps it can be considered in the other place. It relates generally to development plan challenges, which we have not discussed, and I accept that it would raise broader issues, but it may be appropriate to return to the subject at a future point.

The unanimity across the House on planning matters may end when we come to the issue of judicial review. I am afraid that I cannot accept the overblown and overstated arguments made by the Opposition spokesman on that issue. Of course judicial review is important, but it is worth putting it into context. Before I unwisely took the criminal pupillage instead of the planning pupillage, I was a young law student at the London School of Economics in the days of the great John Griffith, who was professor of public law. Judicial review was a virtually unheard-of concept. Although the prerogative orders of mandamus and certiorari go back to the common law, judicial review was scarcely ever used.

It is interesting, and ironic given the stance taken by the Labour party, that the growth of judicial review in its modern form is sometimes dated to the judicial activism of the late Lord Denning at the tail end of the Wilson Government in the ’70s. It was a Labour Attorney-General, the late Sam Silkin, to whom Lord Denning addressed the famous words:

“Be you never so high, the law is above you.”

There were legitimate grounds for extending the jurisdiction. It is ironic, therefore, that the Labour party now seeks to pose itself as the proponent and supporter of unrestricted judicial review. That was certainly not the view of the Labour Government in the 1970s.

None the less, things have moved on. Judicial review is essentially an issue of proportion. I very much doubt that Lord Denning envisaged the concept of judicial review developing from the way he had in mind in that very famous case. There is a real concern—I have seen it as a lawyer, in my time as local government Minister and, before that, as a local councillor—that the growth of judicial review has become an inhibitor to good decision making, rather than, as suggested by the hon. Member for Hammersmith, being a tool to ensure good decision making. I suggest that the reverse has been the case. A number of examples of that can be given.

Let me start at the decision-making level within Government and local authorities. The growth of judicial review has encouraged a culture of risk-aversion in decision taking. All too often, good and honest civil servants and local government officers are restricted in taking what can sometimes be bold courses of action. Ministers can sometimes be counselled against taking bold and radical action because of the risk of judicial review. That harms the governmental process, rather than improving it.

I am enjoying all the autobiographical stuff, but I would love to hear why the hon. Gentleman thinks that a remedy that promotes good decision making and careful consideration by civil servants is a bad thing. Should we be having civil servants taking risky and outlandish decisions because they know that they can no longer be challenged? That seems to be what the Bill proposes.

I am sorry to say—perhaps not for the first time—gently, and with the affection of one legal professional to another, that the hon. Gentleman rather misses the point. We all want good decision making and nobody is saying that there is not a role for judicial review. When I listen to some of the rhetoric from the Labour Benches, I am tempted to think that my right hon. Friend the Lord Chancellor is proposing to abolish judicial review. No such thing is proposed and it is nonsense to say so. But there has been a significant degree of mission creep, to use a popular term, in judicial review. It is reasonable to say that that now needs to be rolled back. That is what the Bill seeks to do.

Does not the hon. Gentleman agree that the real risk here is that those people who are least able to access justice—people with the least means to pay for advice—are the most likely to be squeezed? I hope later to give examples of where judicial review has really helped the little people. The problem with these clauses is that we risk giving ordinary people less access to justice.

I cannot say that that has been my experience. If we were removing the process of judicial review and challenge, that would be a legitimate criticism. But we are not. To change a threshold around, for example, the “highly likely” test does not exclude a deserving case from seeking remedy. To deal with the issue of interveners does not remove a deserving case from the prospect of remedy through judicial review. If it imposes a degree of discipline in the thinking behind the bringing of such challenges, that is a good thing and we should not apologise for it.

But the issue is who will pay for the interveners for those people who have least access to finance and justice. Interveners will be allowed but who will foot the bill for people who do not have the means to pay?

With respect to the hon. Lady, it is seldom persons in that category who are the interveners; they are much more likely to be the bringers of the review. I will come to the role of interveners in a moment, but let me finish the point about the way in which there has been mission creep in judicial review and the sometimes damaging effect that that has on the decision-making process.

The situation is a little like what we found with local government finance at one time, when officials tended to play tick the box so that someone qualified for the right number of grants. There is an element of that sometimes in the decision-making process, where decisions are always taken with an eye over the shoulder at the risk of judicial review rather than getting to the merits of the matter. If these clauses help, as I think they will, to move away from that culture, that is a good thing, as it will then encourage imaginative and radical, but always fact-based, decision making. It will always have to be fact-based because, after all, the Wednesbury reasonableness test is unchanged; it remains in any event. There will always be scope for challenge of irrational decisions, or of decisions that are genuinely not based on evidence. But removing the threat of judicial review to the extent that it now hangs over decision makers is sensible and proportionate.

My hon. Friend is making a good point about the impact of the threat of judicial review on local authority decision making. It has almost become the expectation before a decision is taken that it is liable to be judicially reviewed, adding a layer of bureaucracy and a length of time to decisions that sometimes need to be taken in a more timely fashion.

I am grateful to my hon. Friend, who leads me neatly on to the next point I wanted to make. It is suggested somehow that this is the state seeking to prevent challenge. Very often, those on the receiving end of unmerited judicial reviews are local authorities—democratically elected bodies who find their decision challenged by some vested interests. Very often, that vested interest is propped up by an intervener. That is why the proposed changes are legitimate and proportionate. My hon. Friend is quite right. That is an impediment not only in areas such as development and planning matters, but in relation to other forms of decision making such as housing and other types of policy.

Does the hon. Gentleman agree that good and honourable local authority people sometimes get it wrong and that having relatively straightforward access to judicial review is a good thing?

I am not sure whether you would agree, Mr Speaker. I take the hon. Lady’s point, but I do not think that she follows it through logically. It comes back to this: the basic tests of Wednesbury reasonableness remain. The opportunity for judicial review remains and putting some balance or check in the process to say, “Before you intervene, you have to consider the costs” is not unreasonable.

Any decision maker can, of course, get things wrong, which is why we have judicial review. That remains. But equally, it is not unreasonable to say that when a challenge is brought, those who litigate ought to bear in mind the costs of their doing so. I understand the hon. Lady’s points, which she made eloquently in Committee. I have some sympathy with her, but the Bill does not do what she believes it does. I do not believe it undermines the scope for meritorious judicial review. It is not in the interests of anyone that the courts be clogged up with unmeritorious judicial review cases. There is no doubt that there have been a number of those.

On local government, let me suggest two instances of such cases. It is suggested that those who bring judicial review are often the aggrieved small people. That is not always so. When I was a Minister at the Department for Communities and Local Government, my right hon. Friend the Secretary of State and I suffered at the hands of CALA Homes in a very famous judicial review decision when we were attempting to carry out the will of the House and, clearly, of the electorate and remove the regional spatial strategies, which were discredited. A judicial review was brought against the Secretary of State and against the democratically elected planning authority, Winchester city council, which had gone through the process of standing up for its residents who did not wish to have a particular piece of land developed. What happened was that judicial review was used by, in effect, a predatory developer. There are many cases around the country where it is the big battalions who will use judicial review against elected local authorities. Redressing the balance is fair in that instance, too.

I appreciate the hon. Gentleman’s giving way on this point. In Northern Ireland, we have the ludicrous situation whereby one Minister, namely the Attorney-General for Northern Ireland, will take on other Departments to prevent them from implementing decisions that have been taken democratically. Does he agree that we are now in a terrible situation, whereby before a Department takes a decision, it seems to need to have lined up behind it the right person to fight the judicial review, which will inevitably come in any case once the decision is taken?

My hon. Friend is absolutely right. As an ex-Minister, I break no confidence in saying that when decisions are being taken, part of the advice will regularly be about the judicial review risks. Anyone who serves in an English local authority will know that part of the significant conversation nowadays is, “Okay, we think this is the right thing to do. How do we defend it against judicial review? We know, even though we have done the right thing, consistent with our democratic mandates, that a judicial review will be coming.” That cannot be in the public interest.

Order. It is always a delight to enjoy the free-flowing eloquence of the hon. Gentleman as he develops his tutorial, but may I gently ask him to bear in mind that a number of others wish to speak, notably his right hon. Friend the Member for Wokingham (Mr Redwood) and the Chairman of the Joint Committee on Human Rights, the hon. Member for Aberavon (Dr Francis), and time is not limitless? Although we are savouring the hon. Gentleman’s delights, all good things must eventually come to an end.

I rather suspect, Mr Speaker, that you have anticipated how my ministerial career came to an end as well, delightful though it was at the time. I am happy to draw my remarks to a close, because I know that my right hon. Friend the Member for Wokingham (Mr Redwood) has a great deal of expertise on this matter. I will also welcome the contribution of the hon. Member for Aberavon (Dr Francis), not least because his predecessor was a member of my chambers who led me on a number of cases, including some judicial review matters with which he dealt expertly. [Interruption.] I am sorry to have driven you from the Chair, Mr Speaker.

Let me conclude with these thoughts. The judicial process is important for its checks and balances. That position is not being changed by the Government’s proposals; what they are providing is a reality check on the process of judicial review. On the issue of interveners, if someone chooses to intervene in litigation, they should not do so without being aware of the costs that their intervention can bring. That is what we are seeking to do. It is often the intervener, rather than the initial parties, who takes up the bulk of the time in the case. It is logical for someone who seeks to intervene in a case—no one is obliged to do so, after all—to face the discipline of the potential costs.

My hon. Friend is making an important point. When constituents write to me about planning inquiries and the like, they want to know the true cost, because ultimately, one way or the other, the taxpayer is paying for all this. The facts must be clearly put out there. I thank my hon. Friend for the argument he is proposing.

I am grateful, and that provides a suitable point for me to conclude. The costs apply not just to individual litigants and therefore to companies and local authorities, because the cost to a local authority is ultimately a cost to the taxpayer, and then there is the opportunity cost to the planning system and the court system that comes from bringing needless judicial reviews. There is nothing in the Bill to prevent a meritorious claim from coming forward and being heard, but it provides some checks and balances in the matter—a reminder that the common law does not exist independently of the House. Ultimately, accountability lies here through Parliament. The judiciary has an important role to play in interpreting the will of Parliament.

Occasionally, I look at judgments in judicial review cases and gain the impression that one or two of the senior judiciary have rather concluded that the common law somehow exists in isolation. The development of case law is important, as suggested, but it should happen within the framework set by this democratically accountable House. We need to redress the balance to ensure that while the House is accountable, a democratically elected local authority is the right primary accountable body in its sphere of competence. I thus commend both the planning and the judicial review provisions.

It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill), not so much for the content of his contribution as for its tone and humour. I am afraid that I will not be able to match his humour. He beat me to the punch by telling us about his friendship and legal partnership with my distinguished predecessor, Lord Morris of Aberavon. I suspect from the tone of the hon. Gentleman’s contribution that he must have learned it at the feet of my predecessor. The general tone of this debate has been very constructive, so I hope the Minister will respond positively to the constructive contributions.

I particularly commend the contributions of my hon. Friend the Member for Rotherham (Sarah Champion) and of the hon. Member for Cambridge (Dr Huppert)—I was about to call him my hon. Friend—who contributed progressively and constructively to the work of my Joint Committee on Human Rights earlier in this Parliament.

I shall propose my own amendments 42 and 44 and speak in support of amendments 24 to 32 and 36, tabled in the names of my hon. Friends the Members for Hammersmith (Mr Slaughter) and for Barnsley Central (Dan Jarvis) and recommended by the Joint Committee on Human Rights, which I chair. Let me remind everyone that the Joint Committee is made up of members of all parties and that the majority of its members are from the coalition parties. When a report from our Committee is unanimous, it means that it was supported by Government Members.

My Committee has done a lot of work on the implications for access to justice of the Government’s proposals to reform both legal aid and judicial review, and we continue to take evidence on these important matters. Earlier this year, we concluded a detailed inquiry into the Government’s judicial review reforms. Our report, which came out in April, pointed out—as did my hon. Friend the Member for Hammersmith in this debate—the crucial importance of judicial review to upholding the rule of law in this country. It is, I believe, one of the fundamentals that seems to be in everyone’s list of “British values”—much discussed of late.

Amendments 42 and 44 were recommended in my Joint Committee’s report. They are necessary to ensure that the Bill does not go too far in curtailing one of the most important developments in recent years, which has increased effective access to judicial review to hold the Government to account. The courts have carefully developed costs capping orders, which are also known as protective costs orders, to ensure that meritorious challenges to the legality of Government action are not prevented by the fear of a crippling bill for costs. In appropriate cases, they remove the disincentive to litigation of the ordinary “winner takes all” costs rules.

Corner House Research, a non-governmental organisation with expertise in countering bribery and corruption, brought judicial review proceedings against the Department of Trade and Industry for not doing enough to counter bribery and corruption through its export credits guarantee scheme. The courts believed that the legal challenge raised important issues of public interest that needed to be decided. The case was, however, brought only because of a costs capping order limiting the costs exposure of this important NGO.

The Government are concerned that the test for providing such costs protection has become increasingly flexible, as a result of which costs capping orders are being granted too frequently. The Lord Chancellor and Secretary of State for Justice said that they seem to have

“become the norm rather than the exception”.

According to his way of thinking, a lot of well-off campaign groups are bringing cases safe in the knowledge that their costs exposure will be kept down by a costs capping order. My Committee looked into this issue in detail and found the Lord Chancellor’s concern to be exaggerated. The senior judiciary, in its response to the consultation, also doubted the Lord Chancellor’s claim. Other than in environmental cases, where a special cost regime applies because of the UK’s EU obligations, the judges’ experience is that the use of costs capping orders is not widespread.

We welcome much of what is in the Bill on costs capping, including the Government’s decision to put costs capping orders on a statutory footing and to enshrine the common law principles into a statutory code. This seemed to my Committee to be a welcome recognition in principle of the importance of costs capping orders as a way to ensure practical and effective access to justice. We also found that the new statutory code in clauses 59 and 60 is a broadly accurate reflection of the principles developed by the courts, and for the most part merely reflects the restrictions on the availability of costs capping orders that are already applied by the courts.

In one very important aspect, however, the Bill includes a restriction that has the potential to limit very severely the practical effectiveness of costs capping orders. Clause 59(3) provides that a costs capping order may be made by the courts

“only if leave to apply for judicial review has been granted.”

The Government’s justification for this restriction is that only cases with merit should benefit from cost capping orders, and the test of whether a case has merit is whether it is granted permission to proceed by the court. In practice, however, this provision seriously undermines the utility of costs capping orders and may lead to meritorious judicial reviews not being brought because the cost risk is too great.

Can the hon. Gentleman provide any examples of where that might have occurred? I am finding it very difficult, and I think the taxpayers of South Derbyshire will find it very difficult, to think that people’s rights to open justice are being curtailed in any way when we are not seeing meritorious cases that ought to come to court. Judicial reviews have got out of hand, my friend.

That is not the view of my Committee. I commend our report to the hon. Lady, if she has not read it, because it deals with this point very thoroughly.

Pre-permission costs in judicial review proceedings are often substantial: the Bingham Centre for the Rule of Law told our inquiry that they may comfortably exceed £30,000, and that restricting the availability of costs capping orders until permission is granted will in practice undermine their usefulness in ensuring effective access to justice. It is worth repeating the words, which we quote in our report, of the Bingham Centre on judicial review proceedings:

“The risk of unknown and potentially substantial pre-permission costs is a risk that those who would otherwise qualify for costs protection cannot possibly take. If a PCO cannot be obtained to protect against such a costs risk, very many claims with substantial wider public interest will not be brought. A PCO that cannot be obtained until it is too late to prevent the chilling effect”—

the chilling effect—

“of uncertain and unlimited costs exposure is a pointless PCO: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk.”

The whole point of costs capping orders is that they provide assurance to litigants in advance, before the defendants to judicial review proceedings start running up costs that, without a costs capping order, the claimant may have to pay. To ensure that costs are not a barrier to upholding the rule of law, that protection should be available in relation to costs incurred at the very outset of the proceedings, before permission is granted. That is what amendment 42 is designed to achieve.

My Committee recommends amendment 44, which would prevent the Bill from going too far in the provision relating to cross capping. A cross-cap is a reciprocal order limiting an unsuccessful defendant’s liability for the claimant’s costs. The Government, in their consultation paper, proposed that, where a costs capping order is made, there should be a presumption that the court will make a reciprocal order capping the defendant’s costs. The Bill, however, goes further than this by imposing a duty on the court to make such a cross-capping order.

In conclusion, the Committee thinks there should still be room for judicial discretion in deciding whether it is appropriate to make a cross-capping order in the circumstances of a particular case. Amendment 44 would achieve this untying of the courts’ hands by replacing the duty with a presumption. I support amendment 39, in the name of my hon. Friends the Members for Hammersmith and for Barnsley Central, which is recommended by my Committee. It would remove from the Lord Chancellor the unnecessary and problematic power the Bill gives him to change the matters to which a court must have regard when deciding whether proceedings are public interest proceedings.

I support the Government’s aim to tame, but not to undermine, judicial review. As I understand the Minister’s wish, it is that judicial review should remain as a necessary way of challenging bad decisions, but that there needs to be some control over the large number of inappropriate or frivolous applications that can now be made thanks to cost control and to the way our lobbying system seems to work.

I start from the proposition that the main way people should still get redress for bad government is through their Members of Parliament, as their representatives, and through this House of Commons putting pressure on Ministers; or through their elected local councillors doing the same thing to change or get redress for mistakes and errors by local councils. Resort to the courts is not open to many people; they have to be either very rich or very poor to gain access to the courts. It is difficult for people on modest means to do so. Largely, it is lobby groups and institutions that have the access that many of our individual constituents do not have, because of the fear of the costs of the legal process, and we need to bear that in mind.

I am quite happy with part 4, which is the subject of this group of amendments, because I think it seeks to make that balance. If anything, it is really quite cautious. The main thing it does, just to remind the House, is to say that, when considering whether to grant leave to make an application for judicial review, the High Court has to look into it. If it appears to be highly likely that the outcome for the applicant of that judicial review would not be substantially different if the conduct complained of had not occurred, it should not proceed. That is a very cautious amendment to our right of judicial review. It makes the common sense point that there are certain cases where even if the process or the way the decision was taken was not strictly correct, if none the less it had been done properly and the outcome would have been the same, there is no real point in proceeding with the judicial review. It is just a lot of cost for lawyers. Were the court to find eventually that the judicial review was correct, the decision would remain the same, so the litigant would not succeed.

There are two major differences. First, bad decision making is bad decision making, whatever the outcome, and we would like to see better decision making. Secondly, this will invoke a trial process on the issue—not on the decision making, but on the issue—probably at the permission stage. It will front-load judicial review and change the whole nature of it. This is the most obnoxious clause of all. Far from being mild, it would be extremely radical in its effect.

I beg to disagree. I entirely understand what the Government are trying to do. They are trying to warn certain potential users of judicial review that it is a fatuous process if it turns out that the original decision was perfectly reasonable, although there may have been some difficulties with the process. If too many decisions are subject to too much court examination continuously, it is often possible for a clever and well-paid lawyer to find something slightly inappropriate or questionable in the way in which a council or Government Department made a decision, although the decision itself was correct. It might be better if the money were not spent, and if the courts’ time were not taken up with applications when the position cannot be improved for a litigant who remains in dispute with the council or the Government, and who will not secure a reversal of the original agreement.

The bulk of the work to which the new clauses and amendment relate lies in the intricate and sometimes opaque drafting of new schedule 3, with which we non-lawyers are perhaps struggling a little. It is a complex piece of work, because it amends various pieces of underlying legislation. I have one or two queries with which the Minister may be able to help me, knowing as he does that I approve of what he is trying to do, and am merely trying to clarify some of the ways in which it would operate. For instance, I do not quite understand the logic of paragraph 4(7) of new schedule 3, which provides for new subsection (6) of section 288 of the Town and Country Planning Act 1990 to state:

“The High Court may not suspend a tree preservation order under subsection (4C) or (5)(a).”

That is not entirely similar to some of the other proceedings.

I am also interested in the timings. The period during which due consideration must take place seems generally to be specified as six weeks, but I wonder what the overall period will be when the High Court finds that the judicial review process should proceed. In the case of planning issues in particular, delay can impose complexity, blight and difficulty in the area involved, and if the end result is that the development goes ahead anyway, it becomes a real issue. I am sure that questions of timing and delay lie behind some of the work that the Government have been doing.

I think that my right hon. Friend has hit on a very interesting point. It seems to me iniquitous to build in delay in cases in which the result could not have been changed in the first place. I hope that the Minister will be able to explain why he considers this to be such an important tidying-up mechanism.

I do wonder whether a period of six weeks is required. Presumably the proposal relates to a typical case in which those who are likely to object have followed the earlier processes of the application in great detail. After the original decision there may have been a planning appeal, and they will surely have all their arguments prepared and be ready to move before six weeks have passed. That period seems fairly generous in the circumstances. I wonder how much longer the process is likely to take, and how much High Court capacity there is for dealing with such cases expeditiously.

While I am keen to defend the green fields in my patch from inappropriate development, and am very accustomed to the techniques that we sometimes need to use for the purpose, I am also aware that we need land for building, and that people sometimes object to developments in certain locations that independent-minded people would deem perfectly reasonable. I suspect that in the case of applications of that kind, we might get into difficulties. I am pleased to see that you know exactly what I mean, Mr Deputy Speaker. When we seek to represent our constituencies, we all try to balance such considerations. I am strongly in favour of new growth and new development, but I am equally strongly against its taking place in certain localities where I would find it objectionable, as would many of my constituents.

Let me make two more brief points. I note that new schedule 3 proposes an amendment to the Planning (Hazardous Substances) Act 1990. It states, of course, that leave cannot be granted without the High Court’s approval, but I think that the main issue is whether it poses problems of a different kind, which, given that hazardous substances need to be controlled carefully, might make a more timely result even more crucial.

The new schedule also refers to the Planning and Compulsory Purchase Act 2004. Perhaps the Minister will tell us whether any different considerations apply when someone’s property is the subject of compulsory purchase. I would expect a higher standard of proof, and more rights for people to object, to apply when the estate or the council envisages a better use for land that they own than when a piece of land which is near to where they live, but which belongs to someone else, has been subject to various planning processes and the owner wishes to develop it. I think that those are slightly different cases, and that litigants should be given more protection when they are subject, under the Act, to a compulsory purchase to which they object or which they do not welcome.

I hope that the Minister will be able to clarify some of those points.

The Government tell us that they want to make changes to the judicial review process because too much money is being spent in court and people are making frivolous, vexatious or irrelevant claims, but the statistics do not bear that out. It is true that there has recently been an increase in the number of judicial review cases, most of which have involved immigration. However, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, immigration cases now go to the upper tribunal to be resolved. In reality, the number of cases dealt with by judicial review is no greater than it was some years ago. I must therefore tell the Government, with all due respect, that the cost-based argument is complete hogwash. Something else is motivating the Government and, in particular, the Secretary of State, who has made the telling comment that judicial review is generally

“a promotional tool for countless Left-wing campaigners.”

In his speech, the hon. Member for Cambridge (Dr Huppert) listed a number of organisations that were not of the “loony leftie” variety. The Government’s motivation has become clear, and I think that it is very sad for our judicial system that they are curtailing the basic right of judicial review for the sake of their own political agenda.

The hon. Member for Bromley and Chislehurst (Robert Neill) seemed to suggest that virtually all judicial review cases were frivolous and a waste of time, and that we did not need the process. He even made what I would describe as the rather irrelevant political point that in the 1970s the Labour Government had not been particularly pro-judicial review. Governments of all complexions make wrong decisions, but that does not mean that 40 years later a political party cannot change its mind about a matter such as judicial review. I know that the hon. Gentleman is a lawyer, although I do not know whether he still practises.

Does the hon. Lady not understand the point that I was making? It is erroneous to suggest, as the hon. Member for Hammersmith (Mr Slaughter) did, that placing a restriction or limitation on judicial review undermines fundamental freedoms, Magna Carta and so forth. In fact, it is a fairly recent innovation in our public and administrative law.

I happen to believe otherwise, and I do not think that I am alone. For instance, Lord Dyson, the Master of the Rolls, has said that

“there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review.”

I agree with him. Although the concept is only 30 or 40 years old, it has resulted in one of the most revolutionary developments in our legal system.

It is very easy to say about some of the more political cases, “These are loony leftie agendas”, but the hon. Gentleman may remember from his study of the courts—I remember studying them when I was doing my law degree—the number of cases where judicial review came in and was the only mechanism open to people who had suffered incredibly because of decisions made by a local authority, a public authority or the Government. To say that judicial review only came into being about 40 or 50 years ago and that it is a new concept is irrelevant. It may be newish, but it has had an important effect on our judicial system, and there are a lot of rights and benefits that people now take for granted—whether they are in a care home or one of the many different types of institution in our country, or in respect of public authorities that pass legislation or take actions that affect a whole range of ordinary people. For such people who are not able to get justice, it is judicial review and our courts being proactive that allow them to have their rights asserted. The hon. Gentleman talked about Lord Denning. It is absolutely right that he was one of the most brilliant judges we have had, and he truly helped ordinary people.

Does the hon. Lady not accept that judicial review can be used by people on the right as well as the left—and, indeed, it is so used—and that the Government probably would not welcome a judicial review from UKIP any more than they would from the Greens? Are certain things not so political that they ought to be hammered out here in Parliament and in general elections, not in court?

Walter Bagehot talked about the fact that in our system we needed the three separate bodies—the Executive, the judiciary and obviously Parliament—and that all three must be strong to be able to act as a check on each other.

The fact that we in Parliament are elected does not mean that we do not make mistakes. In the history of Parliament, some appalling pieces of legislation have been passed which have turned out to be wrong. It is only because we have a strong judiciary and a proper judicial review system that those pieces of legislation have been found to be wrong. It is because of that that ordinary people have been able to get justice—the people of this country, the people we are supposed to be representing.

Does the hon. Lady not accept that in a democracy the remedy for bad legislation is at an election, through removing the legislators? That is democracy.

Order. Both hon. Members cannot be on their feet at the same time. If the hon. Lady gives way to the hon. Gentleman, she must let him make his point before jumping back up. Bob Neill, have you finished?

Although we talk about democracy, bad laws have been created, and we cannot wait five years until the next election for such laws to be changed. I say with respect to the hon. Gentleman that that would be completely wrong. If an election takes place tomorrow and a bad law gets passed, are you really saying our people should have to wait five years and change the Government?

I think I am getting a little confused, and it may be entirely my fault. I was under the impression that judicial review was about challenging in court the method by which the decisions of public authorities and the Executive had been arrived at. The judicial review court does not say that a decision was right or wrong; it criticises the process. So there is no question of a court repealing legislation, as the hon. Lady seems to be implying.

I entirely agree with that. Those of us who have been practitioners of law—a few such Members are present—will know that since coming into existence judicial review has been revolutionary for our country. We do not have a written constitution, and Lord Woolf has said:

“In our system, without its written constitution embedded in our law so it can’t be changed, judicial review is critical”

and the Ministry of Justice is showing a

“remarkable lack of concern for the precision of the facts”.

You might say, “Well, maybe Lord Woolf has an agenda here because he’s a lawyer and perhaps he wants money to be available,” but I am sure that highly respected individuals such as Lord Dyson and Lord Woolf, who understand the issue about the public purse as well legal matters, would not be saying these things if they did not believe that these parts of the Bill are fundamentally wrong.

In the 21st century, when we have now got a society that is fairer and kinder to its people, it is sad to have a go at people who are challenging the might of the state. Local authorities, institutions and Departments are still more powerful than the individual litigant or even pressure groups. You may not agree with a pressure group’s policy, but they are not as strong as the might of the state, and we should always have equality of arms. That is one of the fundamental principles of our law. You cannot have one side—local authorities and Departments—with all the money at its disposal and the best legal brains available against the ordinary person on the other side who has none of those benefits, or even pressure groups, who often do not have enough money to be able to spend hundreds and thousands of pounds on top barristers. They therefore cannot afford to lose.

We have to have parity of arms, instead of the state effectively using this opportunity to strangulate and stop the individual—the little person—or even the pressure group, many of which represent a group of our people who are interested in an issue. Pressure groups do not exist just for themselves: they are there because a whole lot of people in the country object to something or feel that there is a problem with an issue. They do not have the resources and they are being strangulated, yet the hand of the state is being strengthened.

I am surprised that a Conservative Government are trying to do this, as they have always taken pride in protecting liberties. What you are doing through all the various provisions and the changes being made to the judicial review, however, is effectively preventing the ordinary person from challenging the decision.

We say that judicial review will somehow make civil servants or public officials think, and wonder whether they might be challenged. Well, I think that is right. In a proper democratic system, local authority or state civil servants should be thinking about the effects of their actions. They should not be above the rule of law. They should be thinking about whether everything is right or not.

As a lawyer who has done some judicial review cases in my life and as somebody who worked in the Crown Prosecution Service as an in-house lawyer, I think it is right that a decision made by a prosecutor should be subject to challenge. When I am making my decision on whether a case should or should not proceed, it is right that that should be able to be challenged, because that would make sure I did my job properly as well as holding me to account. That is very important in our system. Civil servants and local authority officials absolutely should have to look over their shoulder to see whether they are making the right decision, because at the end of the day they are paid by the state and they are supposed to represent and govern our country in a proper way. If they are acting properly, professionally and honestly, they have nothing to worry about from judicial review. Only people who are not acting properly should be worried about judicial review.

What would the hon. Lady say to the residents of Wickford near the Dale farm estate whose local council was found by the courts to have acted entirely properly, but removal of a Gypsy Traveller site was delayed for years by the abuse of the judicial review process? What defence does she have for those people?

I am not going to talk about individual constituents in particular constituencies, and I cannot comment on their issues, but your using that example as a reason to constrain judicial review is not very credible. In doing so, you are detracting from the seriousness and importance of judicial review. By introducing this provision, you are effectively reducing the number of cases in which judicial review can take place. It is very easy to say, “The local authority got involved but the Traveller sites could not be removed and there were delays”, but that is just one small aspect of judicial review. You and I know—

Order. I have let “you” go a few times, but in fairness, I am not guilty of any of this and I certainly did not want to intervene in the Dale farm situation.

I am sorry, Mr Deputy Speaker; I got a bit carried away.

In a civilised society and a democratic country, access to law is very important, and that includes judicial review and those who have been charged with criminal offences. It is fundamental to a civilised society. The Government’s proposed restriction of judicial review is wrong and will cause problems. I ask them to reconsider, especially as immigration cases have now been taken out of the judicial review process. The number of judicial review cases is therefore similar to past levels, so the argument that there are too many such cases and money is being wasted is not credible.

It has been said that people can simply go for judicial review without any challenge: that they can walk into the High Court and say, “I want a judicial review” and get one. Everybody knows that the first thing someone has to do is to seek leave to obtain judicial review. High Court judges are some of the best and most experienced legal brains in the country; they do not grant judicial review applications willy-nilly and then set a hearing date. Many people apply for leave—that is the important part—to seek judicial review, but those applications are sifted and a lot are rejected. Weak, frivolous and vexatious cases get thrown out, and only a very few go on to the next stage, at which leave is granted for judicial review to be considered and a date is set. The sifting stage takes out all the rubbish anyway, and only the good cases of substance and merit go forward. Then, a full hearing takes place and in some cases, people are successful and in others not.

So the suggestion that I can somehow walk in off the street and ask for a judicial review and the court will grant it and set a time for it is a load of rubbish. I am surprised that Members who should know better—who know that that is not the situation—are trying to suggest that that is happening in our courts. It is not. Very few cases reach judicial review, which is still only sparingly used, but it is very important and fundamental to our legal system.

I remind Members that although we now accept that we can challenge the decisions taken by the various local authority and Government Departments and institutions such as quangos, there was a time when we could not. It is only because people are able to challenge the decision-making process that, today, we have a much fairer, much more equal society in which ordinary people feel that they get justice. That was not the case 40 or 50 years ago, and if we compare the situation then with now, we see it has improved tremendously, and active judicial review has been the biggest source of that improvement.

I want to reflect on the impact of the growth of judicial review on local authority decision making, which was a point well made by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill). Its growth has undoubtedly had an impact on the way local authorities go about making key—

There has been no growth in judicial review. If one exempts immigration cases, for the reasons given by my hon. Friend the Member for Bolton South East (Yasmin Qureshi), the number of judicial reviews against local authorities and others has remained stable for the last 10 years.

Whatever the statistics, the essence of the point is that the threat of and culture created by judicial review has had a distinct impact. Before becoming a Member of Parliament, in my previous life as chief executive of Localis, the local government think-tank, I spoke to many local authority leaders and chief executives about the way the judicial review culture that now surrounds local authorities was impacting on their decision making. As my hon. Friend the Member for Bromley and Chislehurst pointed out, it has created to some degree a culture of risk-aversion in local authorities. A bureaucratic layer has been added to the taking of often very important decisions that have big impacts on local communities, resulting in long delays. One example is the politically controversial decisions taken on the potential closure of care homes in many different local authorities. The impact of the threat of judicial review is now being perceived as part of the decision-making process, and that has had a detrimental impact on the quality of some community services.

As someone who served on a local authority for six years, I have to say that I do not recognise the picture the hon. Gentleman is painting. Does he not agree that the risk of judicial review can lead to thorough, considered, well thought-out decision making and does not necessarily result in a slowing down of and delay to the process?

Nobody is arguing that there is not an important balance to be struck, taking into account, as others have pointed out, the importance of democratic accountability for decisions taken. Nobody is arguing that judicial review has no role to play in this context, but there is a strong argument to be made about where the culture that has developed is leading. I speak regularly to local authority chief executives, and it is having a very detrimental impact on local authorities’ ability to make long-term decisions.

My hon. Friend is making a very important point. Does he agree that the concern about the growth of judicial review, rather than the concept, is shared by all parties in local government—I have spoken to local authority leaders, of all parties—and by many experienced chief executives and senior officers?

I agree with my hon. Friend. We need to take measures such as those in the Bill, which I support, to get the balance right in respect of the culture that has developed over the past few years.

As has been mentioned, there is the question of the public perception of what judicial review actually is. As a result of the culture that has built up, there is a public perception that if a judicial review goes ahead, the decision will somehow be overturned. It is felt that the review is to do with the decision rather than with a discussion about the process. For example, a group of residents in my constituency approached me about a judicial review of a fire authority’s decision, which I did not think had been great, to close a local fire station. They raised funds to take the matter to the first stage, but even if they had successfully demonstrated that the authority had not followed due process—I am not a lawyer, but on the face of it there were some grounds for saying so—the likely outcome of their spending something north of £100,000 on a judicial review would have been the authority simply re-presenting the same proposal. That example shows that we must be careful about raising public expectations about what a judicial review can achieve.

I understand the point that the hon. Gentleman makes, but it is not borne out by the facts. From a local government perspective, judicial review has been one of the most effective methods by which local councils have held Government to account and ensured that they follow due process. I rarely do this, but I praise the London borough of Hillingdon, my own local authority, for effectively using judicial review over issues such as the third runway at Heathrow to ensure that the Government abide by their own legislation.

There is a balance to be struck, and direct accountability is an issue. We want a culture in which local authorities and Government can be held to account democratically. That is how decisions should be taken. We should not be developing and enhancing a culture—

I will not give way again. I am drawing my remarks to a conclusion.

We should not create an environment in which people have the expectation that going for a judicial review will somehow impact on a decision. I welcome the changes in the Bill. We need to improve the balance between judicial review and local democratic accountability to enable public bodies to make long-term decisions on behalf of communities and constituents.

I rise to speak with some trepidation as I face a Chamber full of lawyers and barristers; I am neither, and never have been. I want to put it on the record that I am a member of the Howard League for Penal Reform.

All those who gave evidence to the Bill Committee spoke as one against the clauses under discussion. They said that the Government should not be making such moves. This is one of the nastiest bits of the Bill: it is very much a David and Goliath situation. From my perspective, and that of my constituents, the Government have already curtailed legal aid, and are now further curtailing access to justice. I understand why the Government want these changes. As a parent, an employer or a Minister, we never want our decisions to be challenged. I am sure that when Labour is in power, I will not want our decisions to be challenged. However, politicians are not always right. I know that that might come as a dreadful shock, but it is the truth.

Interestingly, Government Members on the Bill Committee were very concerned that interventions were coming from some of the most dreadful left-wing groups; in fact, the challenges came from everywhere. People were saying, “Actually you have got things wrong and we want them to be looked at again.” This is about people having access to justice and being able to go to judicial review; it is about David being able to stand up to Goliath. Those organisations that are prepared to support people are helping to hold the powerful to account. They are organisations that Members on both sides of the Chamber support, through subscriptions and fund raising, to help those who are least able to find the financial means to take their cases to court.

Much of this Bill is about secrecy and limiting access to justice, but David does need help to fight Goliath. By placing financial barriers in the Bill, we are saying that those organisations should not be part of our judicial system, but they are the part of civil society that ensures that society stays civilised. They are not a barrier to ensuring that the law is imparted properly, but part of ensuring that everyone in this country, whatever their means, has access to justice.

The Howard League, in its evidence, said that when experts receive permission to address the court through the provision of argument or evidence, they do so neutrally with the aim of assisting the court, and I very much believe in that. It has always been an established principle that the loser pays the winner’s costs, yet neutral interveners are unable to win or lose as another party may, and are almost always unable to recoup their costs. The proposals reinforce the position, and even make it worse, as they put additional costs against the interveners.

The proposals create perverse incentives. The better the case put forward, the more chance of higher costs being charged against the interveners. Let us think about those situations in which third parties have intervened. Last year, the Howard League intervened in a successful case brought by Just for Kids, which established the right of 17-year-olds to see an appropriate adult on being taken into police custody. Members might remember the tragic deaths of two 17-year-olds who were denied that right. In that case, the court recognised that many important arguments emerged from the intervener’s submissions. The Howard League said:

“It would have been perverse for the charity to be saddled with the costs of the government in responding to our legitimate and expert legal argument that was designed to aid the court in its decision making.”

The changes to the cost rules on interventions go directly against the advice of senior judiciary in their response to the Government consultation on the reform of judicial review in September 2013. Indeed, the courts can already impose cost orders against third parties, but the fact that such orders are rarely made shows that courts benefit from hearing from third parties.

Given that the Government took the advice of the judiciary not to bar third sector organisations from bringing claims by changing the rules on standing, the decision to introduce onerous cost consequences for those seeking merely to assist the court defies logic.

Does the hon. Lady agree that the main way in which our constituents should get redress from bad decisions, or influence bad decisions in a better direction, is through the representation of their MP or councillor?

I thank the right hon. Gentleman for his intervention, but he puts forward a false position. In this House, I can speak on behalf of my constituents and attempt to get Ministers to act on their behalf, but I cannot overthrow the rule of the court. We can of course attempt to change the law in future cases, but it is judicial review that enables our constituents to have recourse to justice, ensuring that justice works on their behalf, not just on behalf of the state.

I wanted to give a number of other examples of where judicial review has been used, but I will instead finish by saying that the Government should be ashamed that they are taking these steps to limit even further access to justice. They are further limiting the ability of the ordinary person to challenge the state and to say, “Actually, you’ve got it wrong on this occasion.” We will have better law and better justice if we do not curtail access for those who need it the most. I am most concerned about the little people at the bottom who will, thanks to these measures, not be able to access justice. I hope that the Government will see reason and accept our amendments. If they want to ensure that we continue to have a civilised society, they must support access to justice, and they must support David against Goliath.

I thank all those who have contributed to the debate, and I hope that I can put on the record at least some of the points that I wish to make before the clock runs out at 2.39 pm. I thank my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) and, through him, the legal fraternity for all their help in ensuring that we have tidied up some matters relating to planning.

My right hon. Friend the Member for Wokingham (Mr Redwood) raised several issues. I am mindful of the time, but I will deal with a couple of them. First, last year we reduced the six-week limit from three months. Secondly, as far as paragraph 4(7) of new schedule 3 is concerned, if an order were to be suspended pending the outcome of judicial review proceedings, developers would be free to remove the tree, which would make the whole issue academic.

Judicial review is an important subject. The package of reform to which clauses 55 to 61 relate is designed to reduce the potential for judicial review to be misused in order to hinder and delay perfectly lawful decisions, while protecting the rule of law. Mere technicalities that were highly unlikely to have made a difference to the outcome for the applicant should not be an adequate basis on which to bring a claim and halt a process. At present, as developed in case law, the courts dismiss a case on a “no difference” basis only where the end result would inevitably have been the same. That extremely high threshold allows judicial reviews to be brought on technicalities that would, in practice, have made no difference to the result or to the applicant. That is why we wish to modify the current approach.

Clause 55 requires the court to refuse permission or a remedy where the grounds for the judicial review would have been highly unlikely to have caused a substantially different outcome for the applicant. I reassure hon. Members that clause 55 will not make the exercise of that power routine. “Highly likely” will remain a high threshold, which will not be met if there is any significant doubt that there might have been a difference for the applicant. Consequently, the clause is far from being a “get out of jail free” card for administrators that would allow them to act unlawfully.

Amendment 23 would delete the clause and maintain the current position. Taken together, amendments 24 to 28, 31 and 32 would also maintain the current position by replacing the duty on the court with a power and by replacing the “highly likely” test with one of “inevitable”. I have already set out our basis for the clause, and I trust that I have assured hon. Members of the high threshold that the clause maintains. Replacing “may” with “must” would significantly weaken the utility of the clause for dealing with minor technicalities in a proportionate manner, and it would continue the recipe for judicial reviews brought on minor technicalities to hinder progress.

I hope that the Minister will not read a prepared speech but address a subject that was raised in the debate, which the hon. Member for Halesowen and Rowley Regis (James Morris) rather gave away, namely that the clauses remove the existing balance in the system and weight it in favour of the stronger party. Rather than talking to the chief executive of the local authority, why does the Minister not talk to the care home resident, the small business that is being pulled down because of planning regulations or the homeless person who is not being taken in? Those are the people who are disadvantaged. They are not meritless cases, but people who do not have the necessary resources.

I am addressing the issues concerned. I am sorry that the hon. Gentleman does not like them, but that does not mean that I will not address them. As for making proper speeches, given the personal attacks that he made when he spoke, perhaps he should have better regard for the etiquette of the House. I will not take any lectures from him.

Amendments 29 and 30 probe the scope of clause 55. In practice, the clause will bite on minor procedural defects, because more significant defects will not be highly unlikely to have made a difference to the outcome for the applicant. There is no accepted definition of “procedural defects”, and it would be virtually impossible to arrive at a definition that would stand the test of time because judicial review evolves with each new decision.

Clauses 56 to 61 will rebalance the financial aspects of judicial review. Those involved in bringing judicial reviews should not be able to hide behind a claimant of limited means or an off-the-shelf company to avoid appropriate liability at the taxpayer’s expense. I do not accept that clauses 56 and 57 will prevent meritorious judicial reviews from being brought. As now, non-party funders will be liable only where they also seek to drive or control the litigation in some way.

Clause 58 establishes two presumptions concerning persons who voluntarily intervene in a judicial review: first, that the court must order an intervener in judicial review proceedings to pay their own costs; and, secondly, that the court must order the intervener to pay the reasonable costs that their intervention has caused a party to incur. Where there are exceptional circumstances, the court need not make an order. Amendment 35 would remove the clause in its entirety, and amendments 36 and 37 would remove the second presumption. Amendment 51, which draws from the Supreme Court rules, would allow the court to award costs against an intervener only in exceptional circumstances.

The first presumption—that an intervener will pay their own costs—represents the current position. Interveners already almost invariably cover their own costs. On the second presumption—that an intervener will pay costs they cause a party to incur—it is right that all interventions should be carried out appropriately and reasonably. The Government share the view that interveners add value to proceedings, and clause 58 is not intended to prevent interventions. However, those who intervene should properly consider the cost implications of doing so.

I know that the clause has caused some disquiet and I agreed in Committee to consider further the second presumption, having listened carefully to the points made, particularly those by my hon. Friend the Member for Cambridge (Dr Huppert). I wish to record my gratitude to him for his assistance, and I believe his proposed amendment reflects, in part, what we want to achieve. Although we are not in a position to accept the amendments, we are looking seriously at how to ensure that interveners consider carefully the cost implications of intervening, without deterring those who intervene in appropriate cases and add value. I am happy to commit to continuing discussions to consider further whether the clause needs to be redrafted to target the specific behaviours that we want to address.

Clauses 59 to 61 establish a codified costs capping regime in judicial review proceedings, building on the regime that has been developed by the courts through case law. The usual costs position should be circumvented only in exceptional, meritorious cases involving serious issues of the highest public interest that otherwise would not be taken forward. We are concerned that costs capping orders can currently be made at any stage of a case. If an order is made at an early stage and a judge later decides that the case has no merit and does not grant permission for it to go any further, the claimant will be protected from having to pay the defendant’s costs of defending that unmeritorious claim.

A number of points have been raised by colleagues. I simply say that with judicial review, we are trying to ensure that meritorious claims go ahead. It is unmeritorious claims that we are trying to deal with, such as those where people hide behind a shelf company, or where people front an application for other individuals who are actually behind it and driving it. We want to maintain judicial reviews for meritorious cases, but we want to ensure that unmeritorious claims are dealt with appropriately. We also want to ensure proportionality by making those who wish to intervene take account of the costs, particularly when some of those costs are to be borne by others.

Question put and agreed to.

New clause 52 accordingly read a Second time, and added to the Bill.

New Clause 13

Periods of time for certain legal challenges

‘(1) In section 61N of the Town and Country Planning Act 1990 (legal challenges relating to neighbourhood development orders)—

(a) in subsections (1)(b) and (2)(b), after “beginning with” insert “the day after”;

(b) in subsection (3)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”.

(2) In section 106C of that Act (legal challenges relating to development consent obligations)—

(a) in subsection (1)(b)—

(i) for “during” substitute” “before the end of”;

(ii) after “beginning with” insert “the day after”;

(b) in subsection (1A), after “begins with” insert “the day after”;

(c) in subsections (2)(b) and (3)(b)—

(i) for “during” substitute” “before the end of”;

(ii) after “beginning with” insert “the day after”.

(3) In section 13 of the Planning Act 2008 (legal challenges relating to national policy statements), in subsections (1)(b), (2)(b), (3)(b), (4)(b), (5)(b) and (6)(b)—

(a) for “during” substitute “before the end of”;

(b) after “beginning with” insert “the day after”.

(4) In section 118 of that Act (legal challenges relating to applications for orders granting development consent)—

(a) in subsections (1)(b), (2)(b) and (3)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”;

(b) in subsections (4)(b), (5)(b) and (6)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “day”, wherever occurring, insert “after the day”;

(c) in subsection (7)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”.” —(Mr Vara.)

The provisions amended by the clause allow for legal challenges to certain planning-related decisions and other actions. They stipulate that a challenge may be made during a period of six weeks beginning with the day on which the decision or action challenged occurs. The amendments secure that the six-week period does not start to run until the following day

Brought up, read the First and Second time, and added to the Bill.

Two hours having elapsed since the commencement of proceedings on consideration, the proceedings were interrupted (Programme Order 12 May).

The Deputy Speaker put forthwith the Questions necessary for the disposal of business to be concluded at that time (Standing Order No. 83E).

New Schedule 3

Procedure for certain planning challenges

Town and Country Planning Act 1990 (c. 8)

1 Part 12 of the Town and Country Planning Act 1990 (validity) is amended as follows.

2 In section 284 (validity of development plans and certain orders, decisions and directions)—

(a) in subsection (1), after paragraph (f) insert “; or—

(g) a relevant costs order made in connection with an order mentioned in subsection (2) or an action mentioned in subsection (3),”, and

(b) after subsection (3) insert—

“(3A) In this section, “relevant costs order” means an order made under section 250(5) of the Local Government Act 1972 (orders as to costs of parties), as applied by virtue of any provision of this Act.”

3 (1) Section 287 (proceedings for questioning validity of development plans and certain schemes and orders) is amended as follows.

(2) After subsection (2) insert—

“(2A) An application under this section may not be made without the leave of the High Court.

(2B) An application for leave for the purposes of subsection (2A) must be made before the end of the period of six weeks beginning with the day after the relevant date.”

(3) After subsection (3) insert—

“(3ZA) An interim order has effect—

(a) if made on an application for leave, until the final determination of—

(i) the question of whether leave should be granted, or

(ii) where leave is granted, the proceedings on any application under this section made with such leave;

(b) in any other case, until the proceedings are finally determined.”

(4) Omit subsections (3C) and (4).

(5) In subsection (5), for “subsection (4)” substitute “subsection (2B)”.

(6) After subsection (5) insert—

“(5A) References in this Act to an application under this section do not include an application for leave for the purposes of subsection (2A).”

4 (1) Section 288 (proceedings for questioning validity of other orders, decisions and directions) is amended as follows.

(2) After subsection (1) insert—

“(1A) If a person is aggrieved by a relevant costs order made in connection with an order or action to which this section applies and wishes to question its validity, the person may make an application to the High Court under this section (whether or not as part of an application made by virtue of subsection (1)) on the grounds—

(a) that the relevant costs order is not within the powers of this Act, or

(b) that any of the relevant requirements have not been complied with in relation to the order.”

(3) In subsection (2)—

(a) after “subsection (1)” (in the first place) insert “or (1A)”,

(b) after “applies,” (in the second place) insert “or with any relevant costs order,”, and

(c) after “subsection (1)” (in the second place) insert “or (1A) (as the case may be)”.

(4) Omit subsection (3).

(5) After subsection (4) insert—

“(4A) An application under this section may not be made without the leave of the High Court.

(4B) An application for leave for the purposes of subsection (4A) must be made before the end of the period of six weeks beginning with the day after—

(a) in the case of an application relating to an order under section 97 that takes effect under section 99 without confirmation, the date on which the order takes effect;

(b) in the case of an application relating to any other order to which this section applies, the date on which the order is confirmed;

(c) in the case of an application relating to an action to which this section applies, the date on which the action is taken;

(d) in the case of an application relating to a relevant costs order, the date on which the order is made.

(4C) When considering whether to grant leave for the purposes of subsection (4A), the High Court may, subject to subsection (6), make an interim order suspending the operation of any order or action the validity of which the person or authority concerned wishes to question, until the final determination of—

(a) the question of whether leave should be granted, or

(b) where leave is granted, the proceedings on any application under this section made with such leave.”

(6) In subsection (5)—

(a) in paragraph (a), for “the order or action” substitute “any order or action”, and

(b) in paragraph (b), for “the order or action in question” substitute “any such order or action”.

(7) For subsection (6) substitute—

“(6) The High Court may not suspend a tree preservation order under subsection (4C) or (5)(a).”

(8) In subsection (7), after “subsection” insert “(4C) or”.

(9) For subsection (9) substitute—

“(9) In this section—

“relevant costs order” has the same meaning as in section 284;

“the relevant requirements”—

(a) in relation to any order or action to which this section applies, means any requirements of this Act or of the Tribunals and Inquiries Act 1992, or of any order, regulations or rules made under either of those Acts, which are applicable to that order or action;

(b) in relation to a relevant costs order, means any requirements of this Act, of the Local Government Act 1972 or of the Tribunals and Inquiries Act 1992, or of any order, regulations or rules made under any of those Acts, which are applicable to the relevant costs order.”

(10) After subsection (10) insert—

“(11) References in this Act to an application under this section do not include an application for leave for the purposes of subsection (4A).”

Planning (Listed Buildings and Conservation Areas) Act 1990 (c. 9)

5 In section 62 of the Planning (Listed Buildings and Conservation Areas) Act 1990—

(a) in subsection (1), after paragraph (b) insert “; or

(c) a relevant costs order made in connection with any such order or decision,”, and

(b) after subsection (2) insert—

“(2A) In this section, “relevant costs order” means an order made under section 250(5) of the Local Government Act 1972 (orders as to costs of parties), as applied by virtue of any provision of this Act.”

6 (1) Section 63 of that Act (proceedings for questioning validity of other orders, decisions and directions) is amended as follows.

(2) In subsection (1), for “section 62(1)” substitute “section 62(1)(a) or (b)”.

(3) After subsection (1) insert—

“(1A) If a person is aggrieved by a relevant costs order made in connection with an order or decision mentioned in section 62(1)(a) or (b) and wishes to question its validity, the person may make an application to the High Court under this section (whether or not as part of an application made by virtue of subsection (1)) on the grounds—

(a) that the relevant costs order is not within the powers of this Act, or

(b) that any of the relevant requirements have not been complied with in relation to the order.”

(4) In subsection (2)—

(a) after “subsection (1)” (in the first place) insert “or (1A)”,

(b) for “such order or decision” substitute “order or decision mentioned in section 62(1)”, and

(c) for “those grounds” substitute “the grounds mentioned in subsection (1) or (1A) (as the case may be)”.

(5) For subsection (3) substitute—

“(3) An application under this section may not be made without the leave of the High Court.

(3A) An application for leave for the purposes of subsection (3) must be made before the end of the period of six weeks beginning with the day after—

(a) in the case of an application relating to an order under section 23 that takes effect under section 25 without confirmation, the date on which the order takes effect;

(b) in the case of an application relating to any other order mentioned in section 62(1)(a), the date on which the order is confirmed;

(c) in the case of an application relating to a decision mentioned in section 62(1)(b) or a relevant costs order, the date on which the decision or order is made.

(3B) When considering whether to grant leave for the purposes of subsection (3), the High Court may make an interim order suspending the operation of any order or decision the validity of which the person or authority concerned wishes to question, until the final determination of—

(a) the question of whether leave should be granted, or

(b) where leave is granted, the proceedings on any application under this section made with such leave.”

(6) In subsection (4)—

(a) after “this section” insert “(other than an application for leave)”,

(b) in paragraph (a), for “the order or decision” substitute “any order or decision”, and

(c) in paragraph (b)(i), for “the order or decision” substitute “any such order or decision”.

(7) For subsection (6) substitute—

“(6) In this section—

“relevant costs order” has the same meaning as in section 62;

“the relevant requirements”—

(a) in relation to an order or decision mentioned in section 62(1)(a) or (b), means any requirements of this Act or of the Tribunals and Inquiries Act 1992, or of any order, regulations or rules made under either of those Acts, which are applicable to the order or decision;

(b) in relation to a relevant costs order, means any requirements of this Act, of the Local Government Act 1972 or of the Tribunals and Inquiries Act 1992, or of any order, regulations or rules made under any of those Acts, which are applicable to the order.”

Planning (Hazardous Substances) Act 1990 (c. 10)

7 (1) Section 22 of the Planning (Hazardous Substances) Act 1990 (validity of decisions as to applications) is amended as follows.

(2) In subsections (1) and (2), omit “within six weeks from the date on which the decision is taken”.

(3) After subsection (2) insert—

“(2A) An application under this section may not be made without the leave of the High Court.

(2B) An application for leave for the purposes of subsection (2A) must be made before the end of the period of six weeks beginning with the day after the date on which the decision to which the application relates is taken.

(2C) When considering whether to grant leave for the purposes of subsection (2A), the High Court may by interim order suspend the operation of the decision the validity of which the person or authority concerned wishes to question, until the final determination of—

(a) the question of whether leave should be granted, or

(b) where leave is granted, the proceedings on any application under this section made with such leave.”

(4) In subsection (3), after “section” insert “(other than an application for leave)”.

Planning and Compulsory Purchase Act 2004 (c. 5)

8 (1) Section 113 of the Planning and Compulsory Purchase Act 2004 (validity of strategies, plans and documents) is amended as follows.

(2) After subsection (3) insert—

“(3A) An application may not be made under subsection (3) without the leave of the High Court.

(3B) An application for leave for the purposes of subsection (3A) must be made before the end of the period of six weeks beginning with the day after the relevant date.”

(3) Omit subsection (4).

(4) After subsection (5) insert—

“(5A) An interim order has effect—

(a) if made on an application for leave, until the final determination of—

(i) the question of whether leave should be granted, or

(ii) where leave is granted, the proceedings on any application under this section made with such leave;

(b) in any other case, until the proceedings are finally determined.”

(5) Omit subsection (8).” —(Mr Vara.)

The Schedule provides that challenges to a range of planning-related decisions and actions may only be brought with the leave of the High Court. It also makes challenges to costs orders associated with certain planning orders and decisions subject to the same procedural requirements. The amendments to section 288 of the Town and Country Planning Act 1990 (previously contained in clause 62) are no longer confined to challenges relating to English matters.

Brought up, and added to the Bill.

Clause 55

Likelihood of substantially different outcome for applicant

Amendment proposed: 23, page 55, line 12, leave out clause 55.—(Mr Slaughter.)

Question put, That the amendment be made.

Clause 58

Interveners and costs

Amendment proposed: 35, page 58, line 2, leave out clause 58.—(Mr Slaughter.)

Question put, That the amendment be made.

The House divided: Ayes 225, Noes 293.

Amendment made: 1, page 61, line 10, leave out clause 62.—(Jeremy Wright.)

New Clause 6

“Possessing an offensive weapon or bladed article in public or on school premises: sentencing for second offences for those aged 16 or over

‘(1) The Prevention of Crime Act 1953 is amended as follows.

(2) In section 1 (Prohibition of the carrying of offensive weapons without lawful authority or reasonable excuse) after subsection (2) insert—

“(2A) Section (2B) applies where—

(a) a person is convicted of an offence under subsection (1) committed after this subsection is commenced;

(b) at the time when the offence was committed, he was 16 or over and had one other conviction under—

(i) subsection (1),

(ii) section (1A); or

(iii) section 139 of the Criminal Justice Act 1988;

(iv) section 139A of the Criminal Justice Act 1988; or

(v) section 139AA of the Criminal Justice Act 1988;

(c) the offence was committed after he had been convicted of the other.

(2B) Where a person aged 16 or over is convicted of an offence under this section, the court must impose an appropriate custodial sentence (with or without a fine) unless the court is of the opinion that there are particular circumstances which—

(a) relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(2C) In this section “appropriate custodial sentence” means—

(a) in the case of a person who is aged 18 or over when convicted, a sentence of imprisonment for a term of at least six months;

(b) in the case of a person who is aged at least 16 but under 18 when convicted, a detention and training order of at least 4 months.

(2D) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this section to have been committed on the last of those days.

(2E) In relation to times before the coming into force of paragraph 180 of Schedule 7 to the Criminal Justice and Court Services Act 2000, the reference in subsection (2B)(a) to a sentence of imprisonment, in relation to an offender aged under 21 at the time of conviction, is to be read as a reference to a sentence of detention in a young offender institution.”.

(3) The Criminal Justice Act 1988 is amended as follows.

(4) In section 139 (Offence of having article with blade or point in public place) after subsection (6) insert—

“(6A) Section (6B) applies where—

(a) a person is convicted of an offence under subsection (1) committed after this subsection is commenced;

(b) at the time when the offence was committed, he was 16 or over and had one other conviction under—

(i) subsection (1);

(ii) section 139A;

(iii) section 139AA; or

(iv) sections (1) or (1A) of the Prevention of Crime Act 1953;

(c) the offence was committed after he had been convicted of the other.

(6B) Where a person aged 16 or over is convicted of an offence under this section, the court must impose an appropriate custodial sentence (with or without a fine) unless the court is of the opinion that there are particular circumstances which—

(a) relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(6C) In this section “appropriate custodial sentence” means—

(a) in the case of a person who is aged 18 or over when convicted, a sentence of imprisonment for a term of at least 6 months;

(b) in the case of a person who is aged at least 16 but under 18 when convicted, a detention and training order of at least four months.

(6D) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this section to have been committed on the last of those days.

(6E) In relation to times before the coming into force of paragraph 180 of Schedule 7 to the Criminal Justice and Court Services Act 2000, the reference in subsection (6B) to a sentence of imprisonment, in relation to an offender aged under 21 at the time of conviction, is to be read as a reference to a sentence of detention in a young offender institution.”

(5) In section 139A (Offence of having article with blade or point (or offensive weapon)) on school premises after subsection (5) insert—

“(5A) Section (5B) applies where—

(a) a person is convicted of an offence under subsection (1) committed after this subsection is commenced;

(b) at the time when the offence was committed, he was 16 or over and had one other conviction under—

(i) subsection (1);

(ii) section 139;

(iii) section 139AA; or

(iv) sections (1) or (1A) of the Prevention of Crime Act 1953;

(c) the offence was committed after he had been convicted of the other.

(5B) Where a person aged 16 or over is convicted of an offence under this section, the court must impose an appropriate custodial sentence (with or without a fine) unless the court is of the opinion that there are particular circumstances which—

(a) relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(5C) In this section “appropriate custodial sentence” means—

(a) in the case of a person who is aged 18 or over when convicted, a sentence of imprisonment for a term of at least 6 months;

(b) in the case of a person who is aged at least 16 but under 18 when convicted, a detention and training order of at least four months.

(5D) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this section to have been committed on the last of those days.

(5E) In relation to times before the coming into force of paragraph 180 of Schedule 7 to the Criminal Justice and Court Services Act 2000, the reference in subsection (5B) to a sentence of imprisonment, in relation to an offender aged under 21 at the time of conviction, is to be read as a reference to a sentence of detention in a young offender institution.”.”—(Nick de Bois.)

Brought up, and read the First time.

With this it will be convenient to discuss the following:

New clause 7—

“Possessing an offensive weapon or bladed article in public or on school premises: sentencing for second offences for those aged 18 or over—

‘(1) The Prevention of Crime Act 1953 is amended as follows.

(2) In section 1 (Prohibition of the carrying of offensive weapons without lawful authority or reasonable excuse) after subsection (2) insert—

“(2A) Subsection (2B) applies where—

(a) a person is convicted of an offence under subsection (1) committed after this subsection is commenced;

(b) at the time when the offence was committed, he was 18 or over and had one other conviction under—

(i) subsection (1)

(ii) section (1A);

(iii) section 139 of the Criminal Justice Act 1988;

(iv) section 139A of the Criminal Justice Act 1988; or

(v) section 139AA of the Criminal Justice Act 1988;

(c) the offence was committed after he had been convicted of the other.

(2B) Where a person is convicted of an offence under subsection (1) the court must impose a sentence of imprisonment for a term of at least 6 months unless the court is of the opinion that there are particular circumstances which—

(a) relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(2C) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two days or more, it shall be taken for the purposes of this section to have been committed on the last of those days.

(2D) In relation to times before the coming into force of paragraph 180 of Schedule 7 to the Criminal Justice and Court Services Act 2000, the reference in subsection (2B) to a sentence of imprisonment in relation to an offender aged under 21 at the time of conviction, is to be read as a reference to a sentence of detention in a young offender institution.”

(3) The Criminal Justice Act 1988 is amended as follows.

(4) In section 139 (Offence of having article with blade or point in public place) after subsection (6) insert—

“(6A) Subsection (6b) applies where—

(a) a person is convicted of an offence under subsection (1) committed after this subsection is commenced;

(b) at the time when the offence was committed, he was 18 or over and had one other conviction under—

(i) subsection (1);

(ii) section 139A;

(iii) section 139AA; or

(iv) sections (1) or (1A) of the Prevention of Crime Act 1953;

(c) the offence was committed after he had been convicted of the other.

(6B) Where a person is convicted of an offence under subsection (1) the court must impose a sentence of imprisonment for a term of at least 6 months unless the court is of the opinion that there are particular circumstances which—

(a) relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(6C) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this section to have been committed on the last of those days.

(6D) In relation to times before the coming into force of paragraph 180 of Schedule 7 to the Criminal Justice and Court Services Act 2000, the reference in subsection (6B) to a sentence of imprisonment, in relation to an offender aged under 21 at the time of conviction, is to be read as a reference to a sentence of detention in a young offender institution.”

(5) In section 139A (Offence of having article with blade or point (or offensive weapon)) on school premises after subsection (5) insert—

“(5A) Section (5B) applies where—

(a) a person is convicted of an offence under subsection (1) committed after this subsection is commenced;

(b) at the time when the offence was committed, he was 18 or over and had one other conviction under—

(i) subsection (1);

(ii) section 139;

(iii) section 139AA; or

(iv) sections (1) or (1A) of the Prevention of Crime Act 1953;

(c) the offence was committed after he had been convicted of the other.

(5B) Where a person is convicted of an offence under subsection (1) the court must impose a sentence of imprisonment for a term of at least 6 months unless the court is of the opinion that there are particular circumstances which—

(a) relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(5C) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this section to have been committed on the last of those days.

(5D) In relation to times before the coming into force of paragraph 180 of Schedule 7 to the Criminal Justice and Court Services Act 2000, the reference in subsection (5B) to a sentence of imprisonment, in relation to an offender aged under 21 at the time of conviction, is to be read as a reference to a sentence of detention in a young offender institution.”.”

Government new clauses 44 to 50.

New clause 34—Criminalising commercial squatting and squatting on land

‘(1) Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.

(2) In the heading, after “in”, leave out “a residential building” and insert “buildings and on land”.

(3) In subsection (1)(a) after “a”, leave out “residential”, and after “building”, insert “or on land”.

(4) In subsection (1)(c) after “building”, insert “or on the land”.

(5) In subsection (2) after “building”, add “or land”.

(6) Leave out subsection (3)(b) and insert “Land has the meaning defined in section 205(1)(ix) of the Law of Property Act 1925.

(7) After “building”, insert “or land”.

(8) (a) after “squatting in” leave out “a residential building” and insert “buildings and on land”.”

New clause 35— New form of joint enterprise offence.

‘(1) The Domestic Violence, Crime and Victims Act 2004 is amended as follows.

(2) In the italic cross-heading before section 5, leave out all the words after “a” and insert “person”.

(3) In subsection 1(a) leave out “child or vulnerable adult” and insert “person”.

(4) In subsection (1)(a) after “unlawful act of”, leave out to end of the subsection and insert “someone” (“P”), where D was with P at the time of the unlawful act”.

(5) Leave out subsection (1)(b).

(6) Leave out subsection (3).

(7) Leave out subsection (4).

(8) In subsection 6 leave out the definitions of “child” and “vulnerable adult”.”

New clause 36—

“Intentional harassment, alarm or distress—

‘(1) Section 4A of the Public Order Act 1986 is amended as follows.

(2) In subsection (1)(a) leave out “, abusive or insulting” and insert “or abusive”.

(3) In subsection (1)(b) leave out “, abusive or insulting” and insert “or abusive”.”

Government new schedule 2—Ill-treatment or wilful neglect: excluded health care.

Government amendments 2, 45, 47, 48, 46 and 49

I am grateful for this opportunity to speak to new clauses 6 and 7, which set out that adults would face a minimum six-month jail sentence on their second conviction for carrying a knife and that 16 to 18-year-olds would face a mandatory minimum four-month detention and training order if convicted of the same offence.

The new clauses seek to build on the precedent and experience of other mandatory sentencing, including my own amendment introduced into the Legal Aid, Sentencing and Punishment of Offenders Bill in 2012, where we introduced a mandatory sentence for the new offence of using a knife in a threatening and endangering fashion. Other examples include mandatory sentencing in cases of possession of a firearm.

I pay tribute to my friend and neighbour, my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), who brought tremendous skill and support, not least from his knowledge and understanding of criminal legal matters, to the discussions and in particular to the co-authoring of the new clause. I am grateful to him for his support.

Let us look at the background to knife crime in this country. For the first time, knife crime is down—by 4%. In London, including my constituency of Enfield North, fatal stabbings have halved since 2008. In respect of knife crime across the country, real but slow progress is being made. Such is the scale of the challenge, however, that it is important to note some other figures to help paint the picture. Last year there were more than 16,000 instances of someone being caught in possession of a knife and action being taken. Of those, one in four resulted in immediate custody, despite sentencing guidelines. The other three out of four were let off with what many offenders regard as softer options—and I agree—including 3,200 people simply being given a caution or a fine, and 4,500 receiving a community sentence for carrying a knife.

The House should require courts to send a clear and unequivocal message about carrying a knife. If we need more convincing that the message that people should not carry knives is currently weak, we need look no further than the thousands of children who do not regard it as a serious offence. More than 2,500 of those caught in possession of knives last year were aged 10 to 17. Nationally, 13% of offenders under 18 received a custodial sentence, but in London only 7% did, although 43% of all offences throughout England and Wales are committed here in London.

I have spent some time among gangs in Birmingham trying to understand gang culture and I support new clause 6. Does my hon. Friend agree that the most worrying thing is that, already in the playgrounds of primary schools, gangs are starting to form as children try to emulate their teenage and older colleagues? A knife is a badge of honour that they see the older kids using, so they think it is acceptable to have a knife too. Such children are getting younger and younger, and that is why the new clause is so important.

My hon. Friend touches on the important point that people should not see the carrying of a knife as a badge of honour. We should be looking to create more positive role models. I will touch on the wider issues that will help us to tackle such perceptions, which, in fairness, are not all about sentencing, although sentencing is a crucial element.

Is the hon. Gentleman aware of the Home Affairs Committee report on knife crime, published in 2008-09, which addressed all the points that he has so far raised?

I read many Select Committee reports and I am aware of that one, but I remind the hon. Gentleman that I seek a change in sentencing not in the basis of the offence. Since that report was written, we have not seen any significant improvement in dealing with the knife culture in this country.

Clacton has seen a spate of knife crime in recent months; the new clause will cut knife crime by handing out mandatory prison sentences to those caught carrying knives unlawfully a second time. Does my hon. Friend agree that this is not simply a question of sending a message? This is no mere declaratory legislation. As a result of the new clause, anyone who carries a knife unlawfully will go to prison.

My hon. Friend’s message is exactly the one I want to send. However, as I will go on to explain, in the context of some of the Government’s reforms, going to prison for a second offence—let us not forget that it is for a second offence—is not only a punishment but an opportunity to reform and rehabilitate.

My hon. Friend has obviously done a lot of research. He mentioned at the outset that a large number of defendants convicted of this type of crime had not received a custodial sentence. Has he done any analysis into the facts on which those people were convicted?

It is difficult to establish from 16,000 cases exactly what went on, but I was intrigued by the remarks of the Mayor of London, who was most concerned at the high number of people in London committing multiple offences who were still receiving cautions or community service orders, as shown by the report from his office for policing and crime. To answer my hon. and learned Friend’s question, that was far enough for me to go to challenge the imposition of the guidelines, which do require sentencing.

My hon. Friend makes a powerful case, and it is difficult to see what grounds there could possibly be for opposing the new clause. Has he received any representations against what he seeks to do?

In fairness, the strongest representations have come from our coalition partners, as my right hon. Friend may be aware. However, I have also met representatives of many organisations and groups who have quite simply emerged from the street; they have either lived near, been involved in or had their lives touched by knife crime. My right hon. Friend might be interested in what I have to say about that later.

On the point made by my hon. and learned Friend the Member for Harborough (Sir Edward Garnier), I should say that I did do some analysis of court sentences in city centres and more provincial courts. For offences such as this, sentences are likely to be much tougher in provincial courts than in city centre courts. Does my hon. Friend agree that that is probably because the offences are much less likely to come up in provincial courts and are therefore more shocking, and because judges in city centres become immune to the importance of the offences because they happen so often?

I agree. Sadly, that is particularly true for younger offenders, for whom sentencing in London is half the rate of elsewhere.

The hon. Gentleman is being generous in giving way. He carefully avoided the question of my hon. Friend the Member for Colchester (Sir Bob Russell) about whether he had had a look at the Home Affairs Committee report on knife crime. I urge him to do so. It is clearly against mandatory sentencing, but it also highlights that evidence suggests that the prospect of a custodial sentence may not deter young people from carrying knives. Does he accept that evidence from many people? Has he seen any evidence to the contrary?

I am grateful to the hon. Gentleman for his intervention. In my follow-up paragraph, I deal directly with some people’s interpretation that the measure will not act as a deterrent. I urge some caution; it is a little peculiar that the hon. Gentleman’s party voted with such enthusiasm for mandatory sentencing two years ago, but somehow now does not see that as appropriate for existing offences.

I was talking about the shocking number of 2,500 young offenders carrying knives between the ages of 10 and 17, which is why the new clause starts by dealing with mandatory detention and training orders for 16 to 18-year-olds. Make no mistake: I am well aware that people are carrying knives far younger than that, but we have modelled the amendment on the previous amendment that is now part of the Legal Aid and Sentencing of Offenders Act 2012, and allowed us to deal comfortably with the 16 to 18-year-olds. As hon. Members may know, the Lord Chief Justice himself has called for an inquiry into the sentencing of younger offenders, given their prevalence in the courts and the courts’ concern at the number of young offenders under the age of 16. I welcome the commitment to explore that at a future date, and the issue may come back to the House.

Some have argued that sending a signal may not be enough and that potential offenders do not think of the consequences of pocketing a knife—a point made a moment ago. That is entirely possible, but let us not miss the wider point of this sentencing change. For those embarking on a journey that embraces the knife culture, the eventual destination may be serious injury to someone else, or even to the carrier of the knife. It may lead to a person’s death. They may take a life. That journey to destruction, which simply ruins lives, included picking up and carrying a knife for the first time. Quite simply, in the vast majority of cases, to kill someone with a knife, one first has to carry a knife. Our courts are dispensing sentences for possession of a knife in thousands of cases, which offenders treat as little more than an occupational hazard. With nearly 8,000 fines and cautions last year, I suggest that that fuels knife crime and does nothing to halt it.

Others may argue that custodial sentences are more likely to turn an offender into a serial offender. Under the new clause, mandatory sentencing would kick in for a second offence. The new clause targets the second offender, giving them a chance to turn their life around the first time. Being convicted a second time suggests that he or she is well on the road to being a serial offender. We have tabled the new clause in the knowledge that the Government are focusing their efforts on rehabilitation and reform in order to reduce reoffending and to help, not hinder, offenders in turning their lives around. For the first time, therefore, short-term prison terms are being accompanied by probation for those serving under a year, with “through the gates” mentoring and payment by results for reducing reoffending. I hope that that works. If prison can reduce reoffending, all the more power to this new clause so that we have yet another opportunity to turn someone’s life around before they potentially go on to commit a far more serious and grave offence.

I have never pretended to be an expert in this subject, and many in this House will probably be happy to support such a contention. However, I have regularly met people here in the Commons and in my constituency, courtesy of widespread engagement over the social media, in some cases, regarding the merits or otherwise of my new clauses. I have had extensive discussions with representatives of voluntary groups that have usually emerged as a result of knife crime in their area or through knowing friends or relatives who have been touched by knife crime or gangs. While not all those representatives necessarily agreed with the new clause—I am pleased to say that the majority did—we were united on one thing: that early intervention, education, mentoring, and focusing on reform and rehabilitation are crucial components in tackling the insidious knife crime culture. I put on record my thanks to those who offered so much of their time.

While I am in absolutely no doubt that we are right to focus on sentencing, that will be only part of the solution, not all of it. However, the idea put to me by some that these two approaches are mutually exclusive does not stack up. Indeed, I argue the exact opposite—that they must go hand in hand as part of a wider solution to the problem. I was particularly impressed by the force of the arguments put by the groups I met that reflect their passion and their background. They are self-starter organisations determined to try to move youngsters away from a life of knife crime. I worry that these groups of volunteers are not being used enough by the official channels, often through local government programmes supported by central Government, to help to turn lives around. These groups often operate on the basis of small private donations, or no money at all, and are not sufficiently resourced to bid for projects to help them further expand their work. I think they should be listened to. I realise that this does not speak to the new clause, but it is worth putting on record that they can be a vital part of the wider solution to the knife culture.

I am following what my hon. Friend is saying very closely. I entirely agree that there has to be a two-pronged approach. I think of organisations such as Lives Not Knives, run by Liza Rebeiro in Croydon, or Young Disciples, with whom I have worked in Birmingham. Does my hon. Friend agree that the message to bring these kids in from the cold is best put across by kids who have been affected—who have themselves been a part of gangs and have seen their friends or family members killed by knives? Kids sit up and listen to them far more, and they can achieve far more than any Government programme or professional.

My hon. Friend is as insightful as ever. I would put it more crudely. I do not believe that people like me—a suit—will ever reach these sorts of people as effectively as those from communities that have been touched by knife crime. My concern is that despite this Government’s gang strategy, we are not getting some of the resources needed right down at the bottom end to help to support some of these groups. He names two groups. I have worked with a number of anti-knife crime groups who will never forgive me for forgetting them as I stand here in the pressure of this Chamber. They are exactly the sort of people with whom we should be engaging more positively, and I hope we will do so.

We have listened very carefully to the victims and the victims’ relatives—those left behind after the death of a loved one. I pay particular tribute to my constituent, Yvonne Lawson, who is my inspiration for unapologetically pursuing the knife culture, including through previous amendments in this House and today’s new clauses. The loss of her son, Godwin, through a senseless and unprovoked attack has seen her witness a cruel journey that few, if any, of us in the Chamber will have experienced. She has devoted a remarkable amount of her time to turning around youngsters’ lives. Through her charity, the Godwin Lawson Foundation, named after her son, she raises awareness of the positive role that sport and education can have in challenging gang culture and the use of weapons as a status symbol. Her message on sentencing is clear and unequivocal: the courts need to play their part in making carrying a knife unacceptable. She and others fully support our attempts to put this into legislation.

I concur with and support everything that my hon. Friend has said. On listening to victims and victims’ families, my constituent, David Young, was stabbed once in the thigh and lost his life, and the offender was given seven years at Maidstone Crown court for manslaughter, which is completely unacceptable, in my view. His parents have been campaigning vigorously to ensure that those who were responsible should be given tougher sentences. Does my hon. Friend agree that because those who carry knives sometimes do not intend to carry out an offence, it must be made clear to them that carrying a knife in itself will lead to further consequences and tougher sentences?

Indeed. My hon. Friend’s constituent’s relatives have my deepest sympathy for what they have experienced.

Sending a message is very important. With the will of this Parliament, the courts should understand that we will not tolerate someone knowingly pocketing a knife when they go out, having once been convicted. They need to be clear in the knowledge that they will go to jail if this House supports the new clause.

Let me draw the hon. Gentleman’s attention to new section (5B), which says:

“Where a person aged 16 or over is convicted of an offence under this section, the court must impose an appropriate custodial sentence…unless the court is of the opinion that there are particular circumstances which…relate to the offence or to the offender, and…would make it unjust to do so in all circumstances.”

I think he owes the House an explanation of what kinds of cases are covered by that.

I am sure that as we have constantly been advocating that the courts should have control of all matters, they will have exactly that. We are trying to change the presumption.

It would be extremely helpful if the hon. Gentleman would let me answer his first intervention. We are trying to change substantively the balance of weight of sentencing. He need look no further than the evidence that my constituent Yvonne Lawson looked to, which showed not only that the introduction of mandatory sentences for possession of guns sent a strong signal that we will not tolerate people carrying guns but that recorded gun crime has fallen significantly since mandatory sentences were introduced.

I thank the hon. Gentleman for that answer, but what we are looking for is an illustration of a real-time case that would fall under new section (5B) and that would not receive a mandatory sentence. Surely he must have had something in mind when he drafted this section.

I am very happy to answer that question. The clauses the hon. Gentleman voted for in the Legal Aid, Sentencing and Punishment of Offenders Bill had exactly the same wording. If he would like to review those cases, he will get a very good picture. I am surprised he did not show the same concern then as he seems to be showing now, or should I have expected that?

On messaging and deterrence, one of the critical issues is the certainty of being caught and the severity of the sanction, which we are trying to toughen up. Does my hon. Friend know the view of the Metropolitan police? Based on what he has said, it seems that a lot of people are being caught but the sanction is not tough enough. Do the police support the new clause?

The Metropolitan Police Commissioner wrote to the Government several months ago urging them to introduce the measure. The police fully support it and they do not like the fact—and they are right not to like it—that an increasing number of multiple offenders are not getting custodial sentences. They want a better response so that cases are worth prosecuting.

Let me make a little more progress; I think I have been pretty generous so far.

As my hon. Friend the Member for Esher and Walton (Mr Raab) has just illustrated with his comment on statistics, knife possession is not being treated with the gravity required to ensure public safety and justice for victims. It is reasonable to draw that conclusion when 8,000 people are still getting cautions and fines. Today, we can change that by turning the existing guidelines, which have a presumption in favour of prison, into a reality through mandatory sentencing, which would be another vital tool in the challenge of dealing with knife crime and knife culture.

In fairness, we ought to remember that other Members wish to speak.

Let me summarise something very important. Even the leader of the Liberal Democrats, the Deputy Prime Minister, has not quite got this right. The new clause is not an attempt to change the basis of prosecution; we simply wish to toughen up the sentencing. Our new clause would not change the basis for prosecution of someone carrying a knife, so a tradesman carrying his tools or—the Deputy Prime Minister seemed overtly worried about this—someone carrying a small penknife is excluded from the proposal by existing legislation.

I thank the hon. Gentleman for that clarification, because the Deputy Prime Minister’s lack of knowledge is frankly shocking. Will the hon. Gentleman confirm that a police officer would still have the discretion to decide not to charge little Johnny for carrying a penknife and that, even if he was arrested and taken to a police station, the custody officer and others would still be able to make the appropriate decision? It is completely wrong to say that the police’s hands will be tied if they stop a young person carrying an offensive weapon or a knife.

The right hon. Gentleman makes an extremely valid and pertinent point. I will put it much cruder: the scaremongering on penknives is absolute nonsense and defies common sense. I confirm exactly what the right hon. Gentleman has said. He and other Members may be interested to know that a scout leader—I seem to recall that scout leaders use penknives quite a lot—fully supported the proposals. He had no fear, so I hope the Deputy Prime Minister is reassured.

Let us accept that when an offender comes before a court for carrying a knife, current sentencing guidelines point to the expectation of prison. However, only one in four end up in prison. Our new clauses will make it clear to the court, the criminals, the public and the victims that the minimum expectation is a six-month sentence for over-18s.

I thank the hon. Gentleman for giving way and apologise for missing the first part of this speech: I was in a meeting. He and I are members of the Justice Committee and we have interviewed at length people who have served either prison sentences or community service orders. Some have said that community service orders and restorative justice are much tougher and much more effective than going to prison, because they had to make decisions themselves and follow a programme. Does not the hon. Gentleman agree that we should think about this a bit more?

I remember those evidence sessions and I am grateful to the hon. Gentleman for reminding me of them, but I have to look at the evidence on the day and the total numbers involved. We have not had mandatory sentencing under the existing system. I do not dispute the argument that some other measures are tough and are seen as such—I accept that—but the reality is that we do not have mandatory sentencing and I am afraid the record shows that current sentencing is not doing an acceptable job given the statistics I gave at the beginning of my speech.

I am sorry, but I will not give way any more.

Our new clauses make clear to criminals, the public and victims our minimum expectation with regard to someone who goes out knowingly carrying a knife as a second offence. I believe that everyone should get a chance, but the patience of the public, this House and victims is being sorely tested by what is happening in our judicial system. Today, we can make a difference by supporting new clause 6.

I was not going to speak in this debate, but we have heard some powerful arguments. I support the new clause because we have made a distinction in law between crimes that involve guns and crimes that involve knives. I know that there are certain arguments for that—some will say that we were right to draw that distinction—but at the end of the day it makes precious little difference to families whether their teenage child is maimed by a gun or a knife. It is important that we reflect on the seriousness of crimes involving knives.

There is a specific liberal school of thought on the issue. I believe that many arguments could be made with greater force if new clause 6 related to a first offence with a knife, but that is not what it is about. A very important message is being sent.

From my personal experience as a councillor in Peckham, I know how seriously knife crime was viewed there. It concerns me that parts of the country that are many miles removed—culturally, economically and socially—from our inner cities now face crimes that 20 years ago would have been viewed as inner-city crimes. That is why it is important to send this message.

Those are some brief observations, but this is an important crime. This is not about not tokenism; it is about getting it right. If this country’s prison system is worth anything, we must also address rehabilitation so that the people who commit these crimes are put back on the right path. Let us not kid ourselves by arguing about abstract things. Knife crime is a cause of concern and I agree with the new clause.

This group covers several issues, but let me start with the Government new clauses and amendments. New clause 44 creates a new offence of police corruption. Police officers ensure our safety in the Palace of Westminster, and they put their lives on the line every time they go out on patrol. Many police officers regularly serve the public bravely up and down the country, but as my right hon. Friend the Home Secretary said on 6 March, the findings of Mark Ellison’s review of the investigation of the murder of Stephen Lawrence are “profoundly shocking” and

“will be of grave concern to everyone in the House and beyond”.—[Official Report, 6 March 2014; Vol. 576, c. 1063.]

The public expect the police to act with honesty and integrity at all times, which is why the Government are introducing a range of measures to improve both the integrity and the transparency of the police. In the small number of cases where police officers fall short of the high standards we expect, it is right that the full force of the criminal law is available to punish and deter acts of corruption or other improper exercise of power.

Police corruption is currently dealt with in the criminal law as part of the common law offence of misconduct in public office. Although the number of prosecutions for misconduct in public office has increased in recent years, they have spanned a range of occupations, not just police officers. This Government believe that the British public expect on-duty police officers, as the guardians of the law and the Queen’s peace, to conduct themselves to a higher standard than other public servants. If police officers fail to conduct themselves to those high standards, it is right that we should seek to uphold that higher standard by means of the criminal law.

We believe that the best way to do that is to create a new offence of police corruption that applies solely to police officers, alongside the existing broader common law offence. The new offence will be triable only in the Crown court, and it will carry a maximum sentence of 14 years’ imprisonment. It will send a clear message that police corruption is serious, and that Parliament has expressly set a high maximum sentence for those convicted.

We have deliberately cast the behaviour covered by the new offence more broadly than the existing common law offence to ensure that it catches all acts of corrupt or other improper exercise of police powers and privileges. For example, were an officer deliberately to focus lines of inquiry away from a suspect with whom he had a corrupt relationship, such as by arresting a person they knew to be innocent, they would commit the offence. The offence applies whether or not the benefit or detriment came about, and regardless of whether the officer was on duty at the time of the corrupt behaviour. It covers cases where an officer fails to act for a purpose that is improper, such as if the officer knows that a suspect did not commit a crime, but conceals that knowledge because of an improper relationship with the person who committed it. It also applies where an officer threatens to act or not to act, and that threat is made for an improper purpose.

Amendments 45 and 46 are minor consequential amendments to the Bill’s extent and long title that arise from new clause 44.

New clauses 45 to 50 and new schedule 2 introduce new criminal offences of ill-treatment or wilful neglect by an individual care worker, and ill-treatment or wilful neglect of someone following a gross breach of a relevant duty of care by a care provider. The House will well remember the appalling events that occurred at Mid Staffordshire NHS Foundation Trust. Much work has been put in train since February last year, when Sir Robert Francis published the final report of the public inquiry into those events, including the establishment of several reviews into specific issues.

The inquiry on patient safety, led by Professor Don Berwick, identified a small but significant gap in the existing legislation. It recommended the creation of a new offence of ill-treatment or wilful neglect to fill that gap. Of course, no sort of ill-treatment or wilful neglect of patients or those receiving social care is ever acceptable. Yet at the moment, no matter how egregious the conduct, prosecutions are difficult to pursue unless the victim either lacks capacity, is subject to the provisions of the Mental Health Act 1983, or is a child to whom section 1 of the Children and Young Persons Act 1933 applies. That means that a significant group of patients and service users are denied the protection of an offence directed explicitly at ill-treatment or wilful neglect by those entrusted with their care, both individuals and organisations. There is a range of existing legislative and regulatory safeguards that may apply in some cases, but we share the view that they are not sufficient to cover all the situations that might arise from ill-treatment or wilful neglect.

New clauses 45 to 50 fill the gap identified, and ensure that there is consistency in the protections available to people should they suffer the very worst sorts of behaviours. They create new statutory criminal offences of ill-treatment or wilful neglect by individual care workers or care provider organisations. The formulation of the offences was informed by a full public consultation in March this year.

New clause 45 makes it an offence for a care worker to ill-treat or wilfully neglect anyone in their care. A care worker is defined as anyone who, as paid work, provides social care for adults or health care for children and adults, other than the excluded health care listed in new schedule 2. The offence is triable either way, with a maximum penalty of five years’ imprisonment and/or a fine. The objective is to ensure that only formal arrangements, where the provision of such services represents part of a care worker’s employment or contractual obligation, are captured by the offence. Informal or family carer arrangements will not be caught, nor will cases in which the provision of such care is incidental to an individual’s formal duties.

New schedule 2 sets out the range of children’s settings and services excluded from the scope of the offence. It includes all schools and children’s homes. My right hon. Friend the Secretary of State for Education is clear that children’s and education services are already governed by a comprehensive regulatory and legislative framework that provides protection for individuals in the settings where those services are provided. All such settings are subject to rigorous regulation and inspection, and other criminal and civil law applies. That reflects the views expressed by the majority of key stakeholders in response to the consultation.

New clauses 46 to 50 establish a new offence applicable to care provider organisations. It is modelled on the approach to dealing with corporate failures and liabilities first developed in the Corporate Manslaughter and Corporate Homicide Act 2007. Rather than needing to identify a so-called controlling mind in the senior hierarchy of a care provider, the offence focuses on the way in which the provider manages or organises its activities. The offence is committed if the care provider’s management or the organisation of its activities amounts to a gross breach of a duty of care owed to a victim of ill-treatment or wilful neglect and, without that breach, the ill-treatment or wilful neglect of the victim would not have occurred or is less likely to have occurred. The offence will apply not only to organisations such as NHS trust hospitals or adult care homes, but to other types of providers, such as general practitioner partnerships or single-handed GP practices.

Just as the offence is modelled on the 2007 Act, so the penalties on conviction of the care provider are modelled on it. In addition to the imposition of a fine, a court will be able to make remedial orders and publicity orders, which will effectively compel a care provider to both publicise the fact that it has been convicted and to take steps to put right the practices or procedures that led to the conviction. That reflects the approach of the Care Act 2014 to the offence of providing false or misleading information, so there is precedent for its use in a health and care setting.

Amendments 47, 48 and 49 are minor consequential amendments to the Bill’s extent and commencement provisions and to the long title that arise from new clauses 45 to 50 and new schedule 2.

Finally, I want to stress that the new offences are not about hounding a hospital worker who makes an honest mistake, or punishing an organisation for fair and informed prioritisation of services, but about holding to account the worst and most unacceptable acts and failures to act.

Government amendment 2 is a minor consequential amendment to the Bill’s extent provisions to ensure that there is consistency and clarity in relation to clause 16. It clarifies that, because clause 16(5) amends the Police and Criminal Evidence Act 1984, the extent of clause 16(5) is the same as that of the 1984 Act. That is in line with the general approach to extent that is set out in clause 66, which provides that where a clause in the Bill amends another Act, the extent of that clause is the same as that of the Act it amends.

I will turn to the new clauses that have been tabled by my hon. Friends the Members for Shipley (Philip Davies) and for Bury North (Mr Nuttall), starting with new clause 34. The House may recall that the offence of squatting in a residential building in section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was introduced following widespread concern about the harm that squatters can cause when they occupy other people’s homes. The offence is working well and has provided welcome relief for home owners who have found their property violated.

I recognise that there are also concerns about squatters who occupy non-residential buildings and land, particularly when it has a damaging effect on business, jeopardises the livelihood of the owner or causes anxiety among the neighbouring community. I hope that my hon. Friends will be pleased to hear that we have been monitoring the situation closely and do not rule out further action if it is needed. However, it would be premature for us to make any changes until we have fully considered what they might mean in practice. The reforms that we made in respect of squatting in residential buildings followed a full public consultation exercise. We would need to think carefully about the impact of such a change on all the different groups affected.

Will the Minister take account of the one new element in the situation, the development of social media, which makes it possible for a large crowd to be assembled for an illegal rave in a property that has been taken over for that purpose? That causes great problems for the neighbours.

I am grateful to my right hon. Friend. He makes a very good point. That is one of the things that we need to look at carefully in considering whether to pursue the ideas that my hon. Friends the Members for Shipley and for Bury North are putting forward in new clause 34. We will continue to do that work and to keep the legal framework under careful review. However, I hope that my hon. Friends will understand that, for the reasons I have given, I cannot accept the new clause today.

New clause 35 seeks to extend the offence in section 5 of the Domestic Violence, Crime and Victims Act 2004—causing or allowing a child or vulnerable adult to die or suffer serious physical harm—so that it applies to causing or allowing any person to die or suffer serious physical harm. I understand that the intention of my hon. Friends is to create a new form of joint enterprise offence. As they will readily recognise, the law on joint enterprise is complex. It forms part of the common law on secondary liability and requires a common purpose between two or more people, resulting in each of them being liable for any offences which might be committed in pursuit of, or as a consequence of, that common purpose.

The offence under section 5 of the 2004 Act, by contrast, is not an offence of joint enterprise. Under the section 5 offence, the person who allows the death or serious physical harm is liable on the basis that he or she failed to take such steps as he or she could reasonably be expected to take to protect the victim from a foreseeable risk of serious physical harm, and not necessarily because he or she shared some common purpose with the person who caused the death or serious physical harm.

The important point about the section 5 offence is that it applies only to members of a victim’s household who had frequent contact with the victim, and could therefore reasonably be expected to have been aware of a risk of serious physical harm to the victim, and to have protected the victim from such harm. The offence therefore covers domestic situations in which members of the household may feel under pressure to remain silent to protect themselves and other members of the household.

I am not persuaded that it would be right to extend section 5 in the way that is suggested, not least because it is not an offence of joint enterprise. Moreover, the Government in 2004 deliberately limited the section 5 offence to the special circumstances that pertain when a person, whether a child or a vulnerable adult, who particularly needs the protection of the law is within the sanctuary of their own home. It has been used successfully in a number of cases, most notably that of baby Peter Connelly. We believe that such circumstances deserve special and extraordinary measures that are separate from the norm.

In addition, the section 5 offence does not require the person who allowed the death or serious physical harm to have been present at the time of the unlawful act, but simply to have been a member of the same household who had frequent contact with the victim, and could therefore reasonably be expected to have been aware of a risk of serious physical harm to the victim. If the allower had to be present at the time of the unlawful act, as the new clause requires, it would raise more difficult evidential requirements for the prosecution in a baby P-type case. My hon. Friends’ new clause would therefore detract from the usefulness of the offence in the specific circumstance at which it is aimed, and it would not necessarily be workable in a wider context. For that reason, I am afraid I cannot accept it.

New clause 36 would change the scope of the offence under section 4A of the Public Order Act 1986 of intentionally causing harassment, alarm or distress to others by using

“threatening, abusive or insulting words or behaviour,”

meaning that “insulting” words or behaviour are no longer captured. My hon. Friends’ intention may be to bring that section of the 1986 Act in line with a similar amendment to section 5 of that Act, which came into effect earlier this year. There are, however, significant differences between the section 5 offence and the more serious and deliberate offence made out under section 4A. The latter requires proof of intent to cause harm to another person, and proof that such harassment, alarm and distress were actually caused to another person. Those differentiating features make it much more serious and significantly raise the threshold of what must be proved. In the light of that higher threshold, the Government do not agree that excluding “insulting” words or behaviour is justified.

Furthermore, during the long-running campaign that culminated in the change to section 5, one key argument put forward by those seeking to remove “insulting” was that removal would not have a negative impact on minority groups because the police had more appropriate powers available to deal with such unacceptable behaviour under section 4A of the 1986 Act. Having accepted that argument as part of the reasoning behind the removal of “insulting” from section 5, it does not seem sensible to remove the protections provided by retaining “insulting” in relation to words and behaviour in section 4A.

For new clauses 6 and 7 I pay tribute not just to my hon. Friend the Member for Enfield, Southgate (Mr Burrowes)—to whom generous tribute was paid by my hon. Friend the Member for Enfield North (Nick de Bois)—but, preventing his modesty from excluding the facts, to my hon. Friend the Member for Enfield North. He has done a huge amount to raise awareness of knife crime concerns, and few people in this place have done more to enhance the safety of the communities they represent, and indeed other communities, by a single-minded focus on this issue.

As my hon. Friend knows, the Government have done their bit on this subject. We have a comprehensive plan in place under the ending gang and youth violence programme, and—in no small measure down to his efforts—we extended new offences of threatening with a knife or offensive weapon in a public place or a school to young people as well as adults, and introduced a minimum sentence for those offences. We have stopped simple cautions being used for possession of a knife in the absence of exceptional circumstances, and as he knows, we are legislating further on cautioning in the Bill. We have taken this issue seriously throughout, and will continue to do so.

When some of those measures were passed, full consideration was given to their consequences. What would be the consequences for the prison population of accepting new clauses 6 and 7?

As my hon. Friend and distinguished predecessor will understand better than most, these are not Government new clauses and therefore they do not come with the same assessments. He will appreciate that the two different new clauses would have different effects, but if the House of Commons decides that those changes should play a part in the Bill, we will make all the necessary assessments. He will also understand that the Government’s clear policy is to ensure that the right people are in prison and that the courts have the opportunity to send the right people to prison whenever they deem that appropriate. The way to deal with and reduce the prison population is, very straightforwardly, to ensure that reoffending is reduced and that people do not continue to return to custody. My hon. Friend began the good work in that regard.

The Minister, quite rightly, is using his words carefully. Following the intervention from my hon. Friend the Member for Reigate (Crispin Blunt), would the sentence be mandatory, or would judges still have an element of discretion?

My hon. Friend the Member for Enfield North made the position very clear. It is a mandatory sentence in the absence of exceptional circumstances. The courts would have the opportunity to say that in those exceptional circumstances the penalty should not apply, but that is standard practice for mandatory sentencing across the criminal law, and entirely appropriate.

I do not understand how my hon. Friend can vigorously oppose new clause 34, despite its evident merits—and on which I unusually agree with my hon. Friend the Member for Shipley (Philip Davies)—because it has not been fully considered, and not come out with a similar line about the cost of the measures before us, which ought to be part of our full consideration before we make our decision.

My hon. Friend is right that if he is in agreement with my hon. Friend the Member for Shipley (Philip Davies), he does have me worried. He will appreciate that the arguments on new clause 34 are rather broader than its cost implications. As I have set out already, we cannot accept it at this stage for several reasons, and that is different from a specifically cost-related calculation.

I note that new clauses 6 and 7 contain some minor, technical flaws that would need to be addressed if either were to receive the approval of the House today. As my hon. Friend the Member for Enfield North knows, his objectives have considerable support among Conservative Members. However, as he also knows, although both coalition parties are fully committed to protecting the public, policy agreement has not been reached on these new clauses, so it will be for the whole House to decide on the conclusion to this debate. So that that debate may continue, I shall finally say that I hope that the House will support—

The Minister coyly described flaws in the new clauses. Would he care to list them so that the House may know exactly what they are?

I am not sure that this is the appropriate time. There are some minor and technical flaws, but my hon. Friend the Member for Enfield North has made his case and the House will have to consider what he has said and decide what it wishes to do. Regardless of the fate of my hon. Friend’s new clauses, I hope that the Government’s new clauses, new schedule and amendments will find favour with the House.

I will take a different approach from the Minister’s and address the majority of my remarks to new clauses 6 and 7; I shall discuss the Government’s clauses at the end of my speech. I welcome this debate and the chance to discuss a subject important to all hon. Members—perhaps particularly to those with constituencies in London, where almost half of knife-related offences take place. Knife crime is one of the most serious and intractable criminal justice issues, and one that often leaves irrevocable damage in its wake.

In my own borough of Hammersmith and Fulham, we have seen more than 800 knife crime incidents since 2010, with tragic consequences for the victims and their families. In London as a whole, that figure is closer to 40,000. In 2013-14, more than 50% of all murders in London were committed with a knife. Knife crime is not just an issue for London and other major cities: it is a national menace. Nearly a third of adult offenders currently receive an immediate custodial sentence. New clauses 6 and 7 would impose what has been referred to as a mandatory minimum custodial sentence on those convicted of a second knife possession offence. For those aged 18 and over, it would be six months; for those aged 16 to 18, it would be a four-month detention and training order.

Contrary to press reports, and statements made by the Deputy Prime Minister, the new clauses would permit judicial discretion, and that is key to our support. Subsection (2B) of new clause 6 states that

“the court must impose an appropriate custodial sentence…unless…there are particular circumstances”—

those are the words, rather than “exceptional circumstances”—

“which…relate to the offence or to the offender and…would make it unjust…in all the circumstances.”

It would also be a defence to the new offences if possession were with lawful authority or reasonable excuse. This measure should not be seen as a catch-all solution.

In light of the current overcrowding crisis in the prison system, The Guardian reported today that the Lord Chancellor will be unable to implement his legislation, if passed, for at least a year; his reverse King Midas touch extends, it seems, to all areas of the criminal justice system.

Is the hon. Gentleman saying that the policies of the last Government to deal with knife crime failed?

That is a peculiar conclusion to reach from the comments I have just made. The hon. Gentleman will be pleased to hear that I am just coming to the previous legislation on knife crime. In the meantime—this point may be of interest to Liberal Democrats—I should say that the issue is not just about increasing sentencing powers. In the next year, for example, the Home Affairs Committee will have concluded its inquiry into gangs and youth crime, with a remit including the effectiveness of current law enforcement and legislation, including gang injunctions and knife and gun crime legislation.

There are many other ways in which young people in particular can be discouraged from carrying knives. Prevention is better than cure. Education, tackling gang culture and deterrence all have a part to play, but it is important that the message should go out from this House that carrying a knife without good reason is unacceptable.

Over my many years in the House, I have heard the expression “A message must go out from this House” so many times. If there is one group of the population that seems unable ever to hear these messages, it is those who commit crimes. Does the hon. Gentleman not recognise that many of those who do either foolish or evil things tend not to think that they will get caught and not to think that, if they are caught, they will get whatever sentence the House has decided on?

The right hon. Gentleman has been here for a very long time and perhaps cynicism has entered his soul about the ability of the legislature to have any influence on the population at large. As a newer Member, I retain some hope that somebody out there might be listening to us at some point.

This is a serious debate, and I commend the hon. Member for Enfield North (Nick de Bois) on the measured way in which he moved the new clause. However, I regret that both sides of the coalition have used an issue of such seriousness for what I can only call a bit of crude political brand management. The new clauses prescribe mandatory sentencing only if a second offence is committed, if there is no lawful authority or reasonable excuse and if the court does not find particular circumstances of the offender or the offence that make that unjust.

We will not hear either the movers of the clauses or the Liberal Democrats highlighting any of those factors—the movers, because they want to show how tough the Tory party can be, and the Deputy Prime Minister, to buff his tarnished liberal credentials. The leaking of the original letter highlighting the coalition dispute over this incredibly sensitive issue was cynically timed just before the local elections—elections that nevertheless saw both parties significantly stumble. Where was this new, improved brave and defiant version of the Deputy Prime Minister when the Tories came to carve up the NHS, slash legal aid or treble tuition fees? He was in the Lobby with them, ensuring their policies went through. I am glad he is taking a keen interest in justice policy, but his timing is noted for what it clearly is—a cheap political stunt to throw a bone to his increasingly malnourished base.

The hon. Member for Enfield North has already alluded to this point, but I led for the Opposition in the very lengthy Committee stage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the last attempt to honour the Tory manifesto promise that

“anyone convicted of a knife crime can expect to face a prison sentence.”

A new offence was created in that Act, of threatening with an offensive weapon in public. It was a serious offence, triable either way with a maximum term of four years on conviction on indictment. It imposed mandatory minimum sentences, as in the clauses under discussion. What was the Liberal Democrats’ response? It is there in Hansard, in the words of the then Justice Minister—he was here until a few moments ago—the hon. Member for Reigate (Crispin Blunt). He was asked what the view of the coalition was, and he said:

“Of course, we enjoy the full support of our Liberal Democrat colleagues on this.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 13 October 2011; c. 808.]

The new clause, with exactly the same provisions in respect of mandatory minimum sentences with judicial discretion—I have set out other caveats—was agreed without a Division. I ask Liberal Democrat Members in their places today: “What has changed since?” We will support the new clauses in the knowledge that they are not enough in themselves to tackle the problem and that they are a proportionate, not a draconian, response.

I shall speak briefly to the other provisions. We have at least had some time to consider new clauses 6 and 7, but the rest of the new clauses and amendments in the group were tabled by the Government so late as to make our scrutiny farcical. The fact that the intention behind them is laudable does not mitigate the appalling management of business, and they hardly have the excuse of being overloaded with legislation. It remains important to ensure that legislation, however consensual, does the job it purports to do.

We support new clause 44, as well as amendments 45 and 46. It creates the offence of police corruption. Alone, that is not the answer. We have called for a bolder and more radical way of tackling police corruption so that the good work of the vast majority of officers is not blighted by the actions of a few.

We have already called for the abolition of the Independent Police Complaints Commission and for its replacement with a stronger and more robust police standards authority. Notwithstanding the Minister’s comments about special responsibilities and a higher standard of police officers, I observe that if the Government are introducing this new offence because they believe that the offence of misconduct in a public office is in some way obsolete or arcane, they might at some stage need to address the other public professions covered by the same provisions. As I say, we do not oppose the Government’s proposals here.

Similarly, we support the new clauses and amendments dealing with wilful neglect in care homes by care providers. As they relate to care homes, almost identical amendments to these were proposed by my hon. Friend the Member for Blaenau Gwent (Nick Smith) during the passage of the Care Bill. I am pleased to see in her place my hon. Friend the Member for Leicester West (Liz Kendall), who led the opposition to that Bill. She will no doubt confirm the similarity; we tabled amendments in Committee to make directors of care providers face jail if their management of services led to abuse or neglect. The Government voted that down on Report. I see no reason for that other than that they wanted to bring it up in their own time. There it is, however—better late than never. I often think that it is better for them to follow up and make their own way in the world.

I am afraid that a number of new clauses will not get proper scrutiny this afternoon if they do not cover the main issues for which most Members have attended the debate. It is to be hoped that the other place will give proper attention to the detail; a restricted debate on Report cannot do so here. The situation is to be regretted even more if we do not manage to reach the final group of amendments, which propose brand-new provisions that have never been scrutinised here. The Government should desist from this policy, which is simply disrespectful to this House and all its Members.

It is a pleasure to speak in the debate, not least because I have been ill over the last couple of weeks. It is good to be back on my feet today, particularly to support new clauses 6 and 7, along with the amendments tabled by my hon. Friend the Member for Enfield North (Nick de Bois). Full tribute has already been made to him, and I would like to repeat that he is indeed the best of advocates and a champion for his constituents, particularly when it comes to knife crime.

It has been good for me to be able to co-author the new clauses with my hon. Friend, although there is an element of sadness and no great pleasure because these provisions arise from the concern in Enfield about the prevalence of knife crime, which is shared across London and, indeed, the country. Welcome progress has been made under this Government on tackling knife crime in all its forms—its prevention and what happens when cases are taken to the courts. Knife crime as a serious form of youth violence is down by more than 19% in Enfield, but one knife attack is one too many, and it is hardly surprising that we are here again, wanting to ensure that sentencing on knife crime is as tough as it should be.

This issue is shared by many Members across the House—it is not exclusive to Enfield. The Opposition’s support is welcome. The Justice Secretary and the Home Secretary have been vocal and public in their support for the new clause, as have a number of politicians across the field. The Mayor of London, Boris Johnson, has been particularly vocal, and has campaigned with us on this issue for a long time.

It may surprise members of the public that we are here in the first place and to learn that we need additional legislation. When someone is caught with a knife and then convicted, it might not be the first time that they have carried a knife. It might just be the first time that they ended up being caught and convicted. The public may be surprised that that person did not go to prison in the first place. We are considering what should happen the second time that person gets caught—not necessarily the second time that they are in possession of a knife—and the second time they end up being successfully prosecuted and convicted. The public may again be surprised that that person does not receive a prison sentence. They will be surprised that the sentencing guidelines, which have been in place for many years and have an entry point of custody on the first offence, mean that when someone faces the court for a second time, it is not inevitable that they will receive a custodial sentence. A custodial sentence is often passed, but that is not always the case. We hear statistics that one in four do not receive a custodial sentence, and that must be a cause for concern.

The Minister is not able to give a full official assessment of the increase in the prison population, but in the discussions when this issue came to light reference was made to an increase in the prison population of perhaps some hundreds. What does that prove? It proves that this proposed legislation is needed, because it will have an effect. It will increase the prison population. Without it, there would not be that increase. We have already seen from assessments that the provision is necessary, and we will no doubt hear a fuller assessment when the new clause is, hopefully, agreed to.

It is perhaps surprising that, as a criminal defence solicitor, I am advocating this measure, because it goes against the interests of many of my previous clients, and that I am advocating wholeheartedly toughening up the way we deal with knife crime. It has been recognised that dealing with knife crime is not just about sentencing. In fact, when an offender gets to court, it is probably already too late. We need to recognise the importance of early intervention, which is key. We need to provide appropriate boundaries and positive role models to raise the aspirations of young people beyond the need to carry a knife and to the need for training, qualifications and a job. In many ways, all that goes without saying. We are, across the House, all wholeheartedly supportive of that. Reference has been made to important Home Affairs Committee inquiries over the years on the need for those other measures, but we are here today to deal with sentencing.

My hon. Friend refers to being a defence barrister. I am sure he was very distinguished. Reference was made earlier to prison being seen as the soft option, and that community sentences are much tougher. When he was a defence barrister or solicitor representing his clients, how many times did he ask for his clients to be sent to prison because it was considered to be the softer option and he wanted to avoid a community sentence at all costs?

I can actually think of occasions when I looked at a magistrate and knew my client was inevitably going to get a custodial sentence, and I had to try to convince him of an alternative. One client would not come out of his cell and spent his time doing headstands. He could take any sentence doing it on his head. There were the odd occasions when one had to be counter-intuitive, particularly with magistrates, but my hon. Friend makes an important point.

The reality that I saw as a defence solicitor—not as a barrister, I have to say—was that all too often there were occasions when prison was avoided. A good plea of mitigation from an advocate—that the young person had the knife for his own protection, or was led up the wrong path by other people and so on—has led to individuals avoiding custodial sentences. Some may say that that should come within the exceptional circumstances category and that there is full discretion for magistrates. The new clause will make it resoundingly clear that there is a minimum mandatory sentence, and that it should only be in exceptional circumstances—coercion and other serious cases that do arise, but which are an exception—that magistrates can quite properly use their discretion. The new clause would ensure that it was very clear to victims, the public and offenders themselves that those who carry knives will go to prison. That has applied for some years to repeat drug offenders, repeat domestic burglars and repeat firearm carriers, and I understand that it is having an effect in relation to firearms offences in particular.

Ought not the court to consider what sentence would make it most likely that the person concerned would never commit any more crimes?

Obviously the court will always be concerned with the issue of reoffending. However, it must balance a great many factors, not least the severity of offences, the need for deterrence, and the need for offenders to be in prison so that they cannot commit further offences, but also the fact that it is important for others, not least the victims, to know that the offence is very serious. As has already been pointed out, people who carry knives are putting not just others but themselves in danger. We need to ensure that minimum mandatory sentences are par for the course, as they are in the case of other serious offending.

It surprises me that the Liberal Democrats oppose the new clause. In 2011, they agreed—unanimously, I believe—with a measure proposing a minimum mandatory sentence for knife crime which involved the same issue of discretion in exceptional circumstances. When it comes to mandatory minimum sentencing, what is the quantitative, indeed qualitative, difference, in terms of principle, between someone carrying a knife in a threatening manner and someone carrying a knife for the second time? The Liberal Democrats like to say that they are standing on a key issue of principle.

I am surprised that the hon. Gentleman cannot work out the answer to his own question. There is a substantial difference between carrying a knife and threatening someone with a knife. In the first instance, the knife could be intended for protection; in the second, the person with the knife risks causing harm to someone else. There is a very clear difference, and I am surprised that the hon. Gentleman cannot see it.

It is clear that they are different offences, but my point is that the Deputy Prime Minister thinks that we should have nothing to do with a mandatory minimum sentence, as a matter of principle. I do not understand the difference between the examples given by the hon. Gentleman when it comes to the principle of mandatory sentencing. He said that people might carry knives for their own protection, but the issue is the same whether a person threatens someone else or whether that person is carrying a knife for the second time. In both cases, a mandatory sentence is applied. It would be necessary to go a considerable way to show exceptional circumstances to avoid a prison sentence.

I am puzzling over this as well. The Deputy Prime Minister said this in his article in The Guardian, which is in front of me:

“While minimum sentencing might sound attractive in media headlines there is a serious risk it could undermine the role of the judges, who are best placed to decide on sentencing.”

I cannot see how that differentiates between different offences, but perhaps the hon. Gentleman can.

The hon. Gentleman may have put his finger on it. Perhaps the issue is the media, and the difference between the headlines of 2011 and those of 2014. Perhaps a differentiation strategy is now more important than an anti-crime strategy. Perhaps a political party is now more concerned about their own interests than about the interests of victims and the public.

Others wish to speak, so I shall not continue for too long, but the fact is that this is not something that has been cooked up on the back of a media issue to make a point. It follows a long campaign, on which I have fought hard with my hon. Friend the Member for Enfield North for a number of years. Last year, Joshua Folkes was killed in an awful knife attack in Bowes road in my constituency. The circumstances are still not clear, despite a judicial determination. We do not know what happened, but we do know that knives were present, and that they caused a young person to die. That was unacceptable then, and we must be intolerant of such cases now.

Last year I asked the Prime Minister whether we could please be intolerant towards knife crime, and we have the answer to that today. Yes, we will be intolerant, following a long campaign that has been fought by many. The Mayor joined us in that campaign: in February he organised a meeting bringing together representatives of the Metropolitan police and others, and on 23 April he wrote to the Home Secretary calling for a measure such as this. We certainly have not come to this recently, therefore; we have been there for many years and, on behalf of the victims—the tragic cases of those, like Godwin, who have lost their lives—we must do more. We cannot rest when more people are losing their lives—being cut down in their prime—unnecessarily.

We must do it also because we, certainly on the Conservative Benches, want to stick to our promises. We made a manifesto commitment to ensure there is an expectation that people go to prison for carrying a knife, and we want to continue to honour that, which is what we are doing today. That is why I call on all Members of the House to support new clauses 6 and 7.

I welcome new clauses 45 and 46 that would hold care home providers to account. Police Operation Jasmine was an £11.6 million seven-year investigation into care homes in the south Wales region. It uncovered shocking instances of neglect. Care home residents were not receiving the care and protection they deserved. One director’s inability to stand trial due to ill health saw a case with more than 10,000 pieces of evidence, and more than 100 families calling for justice, collapse. That remains a travesty to this day.

These new clauses will make wilful neglect an offence. They will make prosecutions more likely in the future. Older people in care homes and their families place their trust in care home staff and providers alike. Both should be held equally responsible when that trust is abused. With the support of Age UK, I tabled amendments to the recent Care Bill for one simple reason: so that victims and their families can get the justice they deserve.

Operation Jasmine went on far too long and cost too much money, but still failed to achieve justice. This change in the law will help right that wrong. I tabled an amendment to the Care Bill which would have made corporate neglect an offence. At that point, the Minister acknowledged the importance of this issue, but the Government did not support my amendment when it was put to a vote on Report. Even so, I am pleased that Ministers are now moving this much-needed change in the law to address a problem that refuses to go away.

The Welsh Government, backed by the Older People’s Commissioner for Wales, have now begun their independent review into Operation Jasmine. I am thankful that the 100 families involved have a real chance at last to understand what went wrong.

I would like to thank my hon. Friend the Member for Leicester West (Liz Kendall) for her support throughout this campaign. It has taken longer than it should, but we got there in the end.

It is a pleasure to speak in this debate. I want to begin by paying tribute to the quality of the speech by the hon. Member for Enfield North (Nick de Bois). I do not agree with every point he made, but although we disagree on some things, I do not doubt his sincerity or the efforts he is making. I suspect we share a common goal; what we disagree about is how best to get there. However, I think he carefully avoided commenting on the mandatory/non-mandatory issue. It was noteworthy that when he addressed comments made by his colleagues he talked about it being mandatory, but when he addressed Members on the other side of the House he was careful to say that it was not. That is one of the key challenges.

We do not dispute that knife crime is a problem: too many people are attacked and injured with knives. Knife possession is, and should be, a criminal offence, although I was struck by a factual inaccuracy about laws relating to penknives and so on—nobody mentioned that the definition is a limit of up to 3 inches; it is not to do with anything else, and it is not to do with police discretion.

I am pleased that there has been a substantial decline in knife possession offences over the last three years. Fewer people are carrying knives—there are reductions of 30% for children and 23% for adults—which suggests that things are getting better, although they are clearly not perfect.

The argument today is not whether anybody thinks it is all right for people to carry knives. Clearly, it is not all right, and that is why the Government introduced the legislation on threatening people with a knife in a public place, including at school. The key issue there is the difference between threatening and carrying.

The question that the House must consider is whether we should do the thing that sounds the toughest or the things that actually work. A strong sanction is available: judges can, if they think it is appropriate, sentence people to up to four years in jail for first-time possession of a knife. Some of us believe in judicial discretion—that it is up to judges to consider all the details of a case to gain the best understanding.

I want to return to the point that I am really struggling with. I appreciate the hon. Gentleman’s opening remarks and the spirit they were made in, but the question is not the type of offence—on which I believe the Liberal Democrats should be challenged—but the principle of the mandatory sentence. More important than the type of offence—be it waving a knife around or carrying it in a pocket—is the principle of judicial discretion and the mandatory sentence. Two years ago, the hon. Gentleman supported that and now he does not. I have not heard an answer to that question.

If the hon. Gentleman wants to personalise this, in fact, I did not support it. He can check the record on that one, although I accept that, like all of us, he has not memorised every single Division in this House.

To my mind, there is a huge conceptual difference between possession and the act of threatening someone, because one of them is so much closer to—[Interruption.] Nobody is expecting that a caution should be given for an offence such as murder. Murder is clearly much more serious; there is that scale and there is a clear difference.

I will come on to mandatory sentencing in other areas in a moment, but I want to consider the fascinating evidence on knife crime that was given before the Home Affairs Committee. A range of people gave evidence, including the hon. Member for Walthamstow (Stella Creasy), as she now is—she is not in her place, which is a shame—who at the time was speaking for the Scout Association. I recommend her evidence in particular. John Bache, chairman of the Magistrates Association youth courts committee, said that, while he agreed that removing knives from the streets was of paramount importance, the Magistrates Association was against mandatory sentences. That is something we should listen carefully to. We also heard from Deputy Assistant Commissioner Hitchcock, who led at the time for the Association of Chief Police Officers on this issue; he is now chief constable of the Ministry of Defence. He was very clear that he opposed mandatory sentencing, and what he said comes exactly to the point:

“I feel there is a difference, for example, between the mandatory sentence for gun crime, where someone has to be within certain criminal networks and has to procure the weapon…and knife crime where you are talking about a weapon that is easily accessible...and the circumstances in which a young person might come to have a knife in their possession can be quite varied. For example, you might have a 16 year old who is a recidivist offender, who is going out and committing robberies, who is going out and threatening other people, who is within a gang environment.”

He then compares them to a young person who

“has been having a bit of a hard time school, a bit of bullying and then stupidly puts the knife in their bag on one occasion and gets caught. If you have got a mandatory sentence then that person who is the recidivist, unpleasant, nasty offender is going to get the same sentence as the young person who has done something really stupid and should have a more appropriate sanction.”

I will happily give way, but I should highlight the fact that Commissioner Hitchcock was talking about a first offence, and I accept—if this is the point the hon. Gentleman is about to make—that he did not comment on a second offence. I will still give way if the hon. Gentleman likes, but I suspect he was going to make the point I was about to make myself.

I will happily give way to the hon. Gentleman. It is always a pleasure to hear him try to stand up for liberalism, given the legislation that he and his party supported.

Whatever.

Yes, there is the question of the second offence, but more importantly, all the examples the Liberal Democrats give—be it the one the hon. Gentleman has just given, or the Deputy Prime Minister’s example of a vulnerable young girl hanging around with a gang—are exactly what judicial discretion, which remains in these clauses, is there to support: particular circumstances relating to the offender.

I find the hon. Gentleman’s efforts to bridge everything fascinating: he is in favour of mandatory sentencing as long as there is discretion for the police and the judges—and everybody else. He is thoroughly confused. The judge already has the power to sentence somebody for up to four years. Under this proposal, they will also have that power, so I do not understand what the hon. Gentleman’s point is. There are many such cases.

The hon. Member for Enfield, Southgate (Mr Burrowes) said that the cases in which there are exceptional circumstances are incredibly rare, but a huge range of cases will arise. They cannot be both incredibly rare and very common.

The main argument for the new clause seems to be that it sends out a message. It is not about changing what the judge can actually do; it is about sending out a message. As was said earlier, sending a message through legislation always seems like a pretty poor argument. I would be interested to hear whether there is evidence to suggest that people will listen to what such a message contains. We must understand why people carry knives: the Home Office has done a substantial amount of work on that over the years, and the main reason it found was that people feel they need protection. A Home Office study found that 85% of young people who reported carrying a knife did so for protection and only a tiny fraction did so to threaten or injure somebody.

People should not carry a knife for protection. It is not a sensible thing to do, but we should consider why they do it. We know that knife possession is particularly high among people who have been victims of crime, especially young males. Once they have been victims of crime, they are far more likely to carry a knife afterwards. That tells us something about the motivation, why they are carrying knives and how we can best persuade them not to do so. If somebody is literally terrified that they may be attacked—this is all too common—and they already know that they could get up to four years in jail for carrying a knife, will the new clause send a strong enough message? Are there better things that we could do to address the issue?

The hon. Gentleman will agree that it is important to look at existing legislation rather than to over-legislate. It is important to use the right examples: if someone is in terror that they are about to be attacked, the existing common law covers duress and coercion, which could then be a defence. A defence is one thing, but mitigation is another. It does not in any way go against the need to ensure that legislation is tough and includes a mandatory sentence.

I confess that I am not a lawyer, but I think that it would be hard to make a defence—those who are lawyers may correct me—of generally being scared of being attacked over a long time period, given that people are not carrying a knife because they expect to be attacked on a particular occasion and in a particular place. That is the problem. These people are scared. They are carrying a knife because of the risk that somebody will attack them, not because they ever intend to use it or hope to use it. I recognise that the defence would apply if someone grabbed a knife to defend themselves from an attack, but it would not apply in this case.

The Home Affairs Committee carried out a detailed report into this subject. Incidentally, its findings were unanimous. Earlier, the hon. Member for Shipley (Philip Davies) said from a sedentary position that the Committee had a left-wing majority. It was a unanimous report, and I am not sure whether we are seeing a clear majority on the left at the moment. The Committee concluded that

“evidence suggests that the prospect of a custodial sentence may not deter young people from carrying knives. Many young people do not think about the consequences of their actions, and for a small minority who feel at risk of violence, the prospect of jail seems preferable to the dangers of being caught without a weapon for protection.”

It is that issue that we need to think further about. None of us is happy that that is the way things are, and that people are concerned to that extent, but that is the situation that we face.

The Select Committee took lots of evidence from young people who have been involved in knife crime. They said:

“It does not go through your mind at all about prison or whatever; it does not exist.”

There is lots of evidence to show that sentencing does not have that much effect. The 2001 Halliday report on sentencing found no evidence to suggest that there was a link between differences in sentence severity and deterrence effects. It concluded that

“it is the prospect of getting caught that has deterrence value”

rather than the nature of the sentence itself.

The Centre for Social Justice said:

“An increase in the number of people imprisoned for knife possession does not warrant celebration, particularly when we know that the majority of young people carry knives out of fear and…custody exposes young people to more hardened criminals.”

That is another problem that was briefly touched on earlier. When young people have been led astray, and find themselves involved in gangs and knife crime, there are a number of paths that they can take. If they manage to avoid death or injury—unfortunately that is not the case for all of them—they might clean up their act, or they might settle into a life of repeated criminality. We all hope that they will sort themselves out, but we know that prison sentences push people into repeat offending. Prison has its place, and there are strenuous efforts now to try to improve rehabilitation, but we still see high reoffending levels. We should be wary of increasing the damaging effect that prison has on people’s futures.

We should also be looking for unintended consequences on people’s behaviour—if they are listening to the message being sent out. People in gangs who have been charged once with possessing a knife will simply react—if they pay any attention at all, and that will depend on the quality of policing—by making another more junior, more vulnerable gang member carry a knife for them. That will seem like a sensible and rational response, if they are listening to the message that is being sent out. Under-16s will be put under intense pressure to do that for the obvious reason that they would not be caught by the new clause. That would put under-16s at greater risk by leading them further into gang behaviour. If the new clause is added to the Bill, I expect one of the unintended consequences to be an increase in those aged 15 and under carrying knives.

Does the hon. Gentleman not see a contradiction in what he is saying? He says that no one will pay attention to the law because it will not be a deterrent, but he also says that they will plan to give knives to younger people.

The hon. Gentleman normally listens carefully. What I said, very clearly, was that if anybody listened, that would be the effect. I am sceptical about how many people will listen to the message being sent out, but even if they do, the new clause would simply drive that strong and unintended consequence. I am sure that some people listen to the messages that come out of this place, and I am sure that some of them read the Hansard transcripts of our debates, but I am sure that not everybody does.

I believe that there is a risk of serious, unplanned harm resulting from this well-intentioned new clause. If it works in the way in which some hon. Members would like, by putting more people in jail, there will be another problem: there is not room in our prisons, which are already overcrowded. Perhaps I should not be surprised that the Labour party could yesterday complain about how full the prisons are and how awful it is that there is no space, but today try to fit more people into them. I am sure that there is a logic in there somewhere.

Turning that around, the hon. Gentleman is part of a coalition that says that there is plenty of space in the prison system and more coming on stream. He might want to ask the Government he supports why they have closed 18 prisons.

We may be going down a sidetrack, but I am delighted that under this Government there are fewer women and children in prison than the previous Labour Government ever managed. I am satisfied with that achievement. However, I realise that the Labour party is still in a space of wanting to lock up as many people as possible to show how tough on crime it can be.

I do wish that the hon. Gentleman would not rile the Front Benchers, because we end up going off on tangents. If someone is listening—with regard to the offenders; I did not mean listening to the Front Benchers—who might carry a knife, my concern is this. I have seen some evidence in my constituency that people have tried to avoid the existing legislation by looking for other weapons. In a recent murder in my constituency, an axe was used, and we have also seen the spraying of acid. If people listen to the message that they will be committing an offence by carrying a knife on two occasions, my fear is that they will diversify into other weapons to avoid that, if they are sufficiently calculating.

The hon. Gentleman makes an extremely good point that I had not thought to add. He is absolutely right, and I hope that he will support us on the matter.

I reassure the hon. Gentleman that although the focus of new clauses 6 and 7 is on knives and bladed articles, they cover offensive weapons. Any weapon, whatever it might be, that is determined to be offensive—whether per se, because it is carried with intent or because of its use—would be covered by new clauses 6 and 7.

I have not checked the exact wording, but I suspect that some things would not fall into that category because they have other uses. That may be one of the flaws that the Minister indicated.

I cannot see how that is covered in the new clauses, and it might be worth getting some clarity from the Minister.

Perhaps that is one of the flaws. I will move on, because I am not in a position to arbitrate between the two sides while I am speaking.

I see that the Justice Secretary has said that even if such amendments were passed in some form he would have to delay their implementation because there is no space in the prisons. That strikes me as something that we should consider in deciding whether to go ahead. Incidentally, it is also a strong argument for more rational sentencing decisions to ensure that we are locking up the right people and not the wrong people. We ought also to be more rational about how many years people get for different offences.

We have already heard from Labour’s Front Benchers that we should just open up more prisons, but—[Interruption.] There are clearly cheers for that idea from some on the right as well. As my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) pointed out yesterday, we already have one of the highest imprisonment rates in the western world. Why is that something of which we should be proud?

Every prison place also comes with a cost of about £40,000 a year on average, so there is an economic argument, too. Is locking people up for a second possession offence really the most effective way to spend money to keep us safe? Is that genuinely the best way to spend that money? The Government have a programme for ending gang and youth violence and I hope that we would all support that, but it is quite a small programme. The total budget of the entire ending gang and youth violence programme is less than the cost of putting 13 people in jail for a year. That is an astonishing figure. Surely we could ensure that there is less gang violence and less knife crime by increasing the funding for that programme rather than putting it all into prisons. We should spend a lot more money, as £2 million extra spent on preventive work could make more of a difference, save more lives and ensure that more people live a life free of fear than the provisions in this Bill will achieve.

As the Minister pointed out, one flaw is that we do not know the consequences of the new clauses, because the figures have not been considered, but even just 100 extra people in jail for six months would cost £20 million. Is it genuinely the view of the whole House that, rather than spending the money elsewhere, that is the best way to reduce knife crime?

May I ask the hon. Gentleman to factor in one other matter, as I think that his attention to the detail of the expenditure misses one valuable point? I would pay that money if my new clauses saved lives, as I believe they will.

I am fascinated that the hon. Gentleman is prepared to pay £20 million. My point is not for or against saving lives, but about which approach will save lives more effectively. Will we save more lives by agreeing the new clauses, at a cost of £20 million? Or will we save more lives by spending that money on reducing the gang crime that blights our cities and other areas? Which will reduce knife crime by more? I am not saying that the hon. Gentleman’s proposals would not have any effect at all, but I would challenge whether they are the best way of proceeding and of saving the most lives.

If we had that extra money, we could do many more of the things that we should be doing. We could do more to teach 11 to 16-year-olds of the consequences of knife crime and the harm that can come to them, and to encourage them to report knife carrying so that it happens less in our schools and on our streets. We could make more young people aware of the downsides of gang culture and run much more effective anti-gang programs. We could extend the highly successful “This is abuse” campaign to girls who are associated with gang members and who are at particular risk of sexual exploitation. Those are all things that the Government could do that would stop people picking up a knife in the first place. We could use money for that instead of just locking people up.

The Secretary of State used to understand that. When he gave evidence to the Select Committee on Home Affairs, he said that what

“I would seek to bring to Government, if we win the election, is all around the principle of early intervention...I think that the way in which we make the biggest difference to knife crime and indeed to other violent crimes, particularly amongst the young, is through more effective early intervention.”

He was right when he said that; the money should be spent on early intervention, as I think, and the Justice Secretary used to think, that that is more effective. Deputy Assistant Commissioner Hitchcock, as he was then, also explained why we are going to get this wrong, as I highlighted earlier.

We should make it very clear that carrying a knife for whatever reason, whether it is driven by fear or to threaten others, is not tolerated, but banging up people who have been misguided and making the situation worse is not the way to do that. This is about finding alternatives, and there are some fantastically effective alternatives. Since 2006, the organisation Redthread has been embedding workers in the trauma centre at King’s College hospital. Its staff work closely with accident and emergency staff to try to disrupt the cycle of violence that brings hundreds of young people to the hospital each year. Every week, their clinical colleagues see mostly young men who for a range of reasons find themselves victims or perpetrators of gun and knife crime. Redthread staff take the opportunity to try to turn around people who have been involved, injured and seen the worst that can happen as a result of such crime—at a time when they are shocked and their lives can be changed. Supporting anti-gang work at the scene in A and E, with better education and more awareness-raising in schools, seems to me to be the way to reduce knife crime further.

There is another thing we should do and which I am surprised the Justice Secretary has not done: insist that the Sentencing Council re-examine the current guidelines for knife crime. They were last looked at in 2008. There is a strong case to look at them again, and to look at them in the round to make sure that we have the right sentences. I do not know why the Justice Secretary has not done that ahead of time. He could have done so easily, as he did recently for one-punch killing.

Does my hon. Friend agree with my proposal that in order to ensure that sentences are looked at in the round, that they reflect the views of the public who elect us and that they are effective, the Sentencing Council should be a committee of this Parliament?

Order. The hon. Gentleman has been very generous in giving way, but he has been speaking for some considerable time and there are at least six other Members who wish to speak before this debate terminates at 6 o’clock. May I gently suggest that he be less generous and make progress quickly?

I am starting the last page of my speech and I shall try to avoid taking more interventions.

If the Justice Secretary did as I suggest, we could look in the round at everything from simple possession through to murder with a knife. We could have coherent guidelines for these offences and more proportionate sentencing. I want to see that. It would also help us with an evidence-based approach. We could look at the facts and at what makes a difference, and make sure we take the right steps to get knives off our streets and out of the hands of children.

I entirely understand the arguments of the supporters of the new clauses. I understand what they are trying to achieve and I have sympathy with it. I do not fault their intentions at all, but we should look at the consequences, the downsides and the alternatives. We should remain tough on those who use knives to harm other people and we should be tough on the causes of knife crime. We should not do just what looks tough.