I draw the House’s attention to the fact that financial privilege is involved in Lords amendments Nos. 5 to 34, 75, 123 and 124. If the House agrees to them, I will cause an appropriate entry to be made in the Journal.
Likelihood of substantially different oucome for applicant
I beg to move, That this House disagrees with Lords amendment 97.
Before I move on to the detail of the amendments, it might be helpful to remind the House why these reforms are so important. Judicial review was developed as a tool for citizens to challenge decisions taken by public bodies that unlawfully and adversely affect their lives. That remains as important today as ever, and nothing in these reforms will prevent those citizens from using judicial review in the future. As Lord Chancellor I take my responsibility to uphold the rule of law very seriously, but I do not believe that the way in which it has evolved in relation to the current use of judicial review is consistent with or necessary to uphold the rule of law, and I believe the time has clearly come to set some limits to prevent misuse.
Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. Yet, in far too many examples, that is precisely what it has become and it is why reform is necessary. It is also why the three areas of our proposed reforms covered by this debate tonight are so important.
Indeed. I am genuinely baffled as to why the Opposition are so set against many of these reforms when many of their predecessors as shadow Ministers or in government raised many of the same concerns. I will challenge them over one or two of the issues later, because I find their position inexplicable.
Whoever wins the general election will have to take some very difficult decisions in the next Parliament. Those decisions are not ones that any of us would wish to have to take, any more than we in government wanted to take some of the difficult decisions that we have faced in this Parliament, but tough times mean tough decisions—decisions in the interests of this country. And yet, whichever party is in government after next May will face a wave of pressure groups trying to use judicial review to delay decisions, to avoid spending reductions, and to generate publicity for their own cause.
If a group can find a clever enough lawyer, almost any Government decision can be judicially reviewed, and very many are, not necessarily on the basis of specific breaches of specific laws, but far too often on a loose argument that something was not quite right with the consultation paper, that there should have been a bit more consultation, or that a tough decision seen in isolation was irrational. Without undermining the essential core of judicial review, we need to restore common sense to the way in which the judicial review system works, and that is what we are working to do.
Does my right hon. Friend agree with the important point made by Lord Horam that there is a difference between a balance to protect the rights of the citizen in specific cases and a situation where, sadly, judicial review can be moved through pressure groups to what is effectively a review of the merits, rather than of the procedures, often contrary to the wishes of the communities that are most directly affected?
My hon. Friend is right. Judicial review has become a vehicle that is used as one of the tools to campaign, to delay and to challenge, not necessarily in the interests of the broader society or the broader community, but because it provides a vehicle to make a point or to delay something for financial reasons. It makes no sense to have a system that can be abused in the way it often is.
We listened carefully to the debate in the House of Lords, and as hon. Members will see from the amendment paper, we have suggested some modifications to ensure that we avoid unintended consequences of what we are working to do. I hope that the House will say clearly today that having agreed those safeguards, we want to see this package of reforms pass into law.
On safeguards, can my right hon. Friend give me an assurance that local authorities will not be able to dumb down their standards, knowing that there is not likely to be a judicial review, and that they will still always go through the correct process, as they need to do, and not think that they are beyond reproach?
My hon. Friend is right. It is important to say that the Bill will not stop organisations being judicially reviewed where they are at fault. It does not stop organisations being judicially reviewed for constant or serious underperformance or failure to fulfil their duties. What it stops is judicial review on technicalities. It stops the system being used for purposes for which it should not be used.
Does the Lord Chancellor view as a technicality the recent consultation on changes to legal aid ignoring the Welsh language aspect altogether and allowing half the time for the consultation to go into the Welsh language issue, as opposed to the whole time? Is that something that we should just ignore?
In that particular case, we fulfilled the orders of the court after the first judicial review hearing. I did not agree with the judge in that initial ruling. I considered an appeal, but looking at the detail of the ruling, I decided that it was more in the interests of the system that we were trying to protect and develop to move ahead with a further period of consultation. That is what we did, and we have published our responses arising from that consultation. We took the opportunity to revisit our original decisions and to look at whether any further changes needed to be made. That was embodied in the document that we published last week.
There are three simple principles in the areas of debate covered by these motions. I challenge the Opposition to explain why they so strongly disagree with those principles. First, parties should not be able to use minor technicalities in process as an excuse to bring a judicial review in order to delay an essential decision when there is very little likelihood that the outcome would be affected by that technicality. It is a simple principle. There is an exceptional circumstances clause which still allows judicial discretion in cases where there is a particularly distinctive characteristic, but this is designed to stop organisations judicially reviewing a process on the basis of a minor flaw in process, only to have the effect of delaying a difficult change—delaying for financial reasons and trying to push a change back a few months so that the financial impact is not felt as soon.
That is the reality of what is happening, and this proviso seems a perfectly sensible means of ensuring that the Government can take decisions in a timely and necessary way. In the unhappy event that the shadow Secretary of State finds himself in my chair or his colleagues find themselves in other Ministers’ chairs, they will think that it is sensible and logical way to make sure that the wheels of government move at an appropriate pace.
I hope that my right hon. Friend accepts that some Government Members, and I include myself, have some concern about the reforms he is promoting. Will he help me to resolve a very difficult dilemma by telling me and the House what he regards as a minor technicality? Judges do not generally grant leave for judicial review on minor technicalities—it has to be based on matters of serious abuse of fair process—so I am concerned and troubled by what he considers a technicality.
I hate to disabuse my hon. and learned Friend, but such cases happen all the time and very regularly. Very early in this job, I faced a judicial review—we eventually won it after a hearing, but only following a delay and some considerable cost—from a representative group that argued that changes to a part of the compensation system should not proceed because of a technical detail concerning how the consultation had been carried out. It went to a hearing, which we won, but it cost the taxpayer substantial amounts of money and delayed the process. It was on a technicality, and there was no likelihood of there being a different outcome. If he talks to Ministers from across the Government, he will find that such cases happen regularly—for example, if a nuance of a consultation has not been done thoroughly or properly, or if it was fractionally shorter than the precedent for similar consultations. I am afraid that such cases do happen, and they delay the wheels of government. Let me talk about the other two areas, because they are also acute problems.
The right hon. Gentleman says “all the time”. Will he give us a notion of how often that is—once a day, once a week, once a month? How many times have such cases happened since April, for instance? He is giving the impression that they happen all the time, but what does that mean?
A Minister is confronted by the practical threat of the arrival of a judicial review case virtually every week of the year. It is happening all the time. There are pre-action protocols all the time, and cases are brought regularly. Looking across the majority of a Department’s activities, I would say that Ministers face judicial review very regularly indeed. It happens weeks apart rather than months apart.
Let me set out the other two areas covered by the reforms, and I will then give way to the right hon. Gentleman.
The second thing we are trying to do is to stop third parties using people with no means as human shields, and effectively bringing broad-ranging cases on public policy by acting as interveners behind and alongside them, while being immune to financial risk if they lose. That is customarily discussed in terms of pressure groups, but it actually applies to big corporations as well.
The third reform applies in a similar way. If an organisation brings a judicial review, we should know who they are and who is backing them. Of all the disagreements of the House of Lords, I understand this one least. How is it possible for a judge to take a decision on costs and other aspects of a judicial review if he or she has absolutely no idea who is responsible for bringing it? Is it not right and proper for the court to know?
Let me give an example to challenge Labour Members. If a large international, such as a tobacco company, wants to challenge the Government on a public policy decision, it can, under the current rules, set up a shell company, with a single—probably impecunious—director and use it as the front for the judicial review. If that happens, is it not right, proper and sensible for us to know which corporation is backing the judicial review? Labour Members may say that it could never happen, but it happened in the Richard III case, when a shell company with a single impecunious shareholder brought a judicial review against the Government, which cost the taxpayer a significant six-figure sum. It can and does happen.
Why on earth would anybody disagree with the principle that if an organisation brings a judicial review, we should know who it is and who is backing or supporting it? Why is that so unreasonable? I simply do not understand why the Labour party lined up with Cross Benchers in the House of Lords to oppose it. What is wrong with the principle? I challenge shadow Ministers to say—I will happily take an intervention—what is wrong with the idea that a court should know who is backing a judicial review or who is behind it?
I would love the Secretary of State for once to use an example or any example that does not involve Richard III. He knows very well that the intention of his approach on clause 67 is not to be transparent, but to discourage small litigants—individual groups wishing to take on a big corporation—who would fear that all their funds were at risk. The vast majority of such cases are of that kind. He wants to suppress viable litigation, rather than in any way to be transparent.
I am afraid that that is complete nonsense. The amendments that we are discussing do not involve any financial risk at all. They are simply about the court knowing who is backing the judicial review. They are purely for information. I do not believe that it is unreasonable for a court considering a judicial review to know who is backing it, and I am baffled as to why the Labour party opposes that.
We do not have much time for this debate, so I will focus my detailed remarks on clause 67, but I said that I would take another intervention.
The right hon. Gentleman talks of technicalities, but the law is full of technicalities—that is all it is. He says that Ministers and officials are frightened of judicial review, and so they should be. The pressure on them is to comply with laws and regulations that we have passed. We are encouraging law breaking if we let someone say, “Well, it’s okay. You can skate over that, or you can skate over this. You can get away with it. It was only a minor technicality.”
I am afraid that that is simply not right. Very many judicial reviews are not about whether we have broken a law passed by this place—of course, we must be challenged if that happens—but are based on a much looser interpretation of what should or should not happen. They are based not on statute, but on, for example, why we have run a consultation for six rather than nine weeks, given that the previous one was for nine weeks. The truth is that such arguments are brought to the courts by people who seek to delay the impact of decisions. I must say that if Labour Members find themselves taking difficult decisions in government after the election, they will discover that a judicial review’s ability to delay key decisions is against the interests of this country, and they will wish that they had supported rather than opposed us.
As hon. Members will see from the amendment paper, we will ask the House of Lords to reconsider its opposition on most of the measures. We listened very carefully to the concerns expressed on clause 67. We disagree with the Lords amendments, which undermine the clauses agreed by this House. Each amendment would take the heart out of the reforms by undermining any duty to give effect to the key requirements. However, we have listened very carefully to the concerns expressed on clause 67, and we have moved by proposing an alternative model.
If this House approves the amendments in lieu, clause 67 will continue to give the courts significant leeway in making cost orders. It will be for the court to consider whether any of the four conditions have been met. It will preserve the court’s role in deciding whether costs were caused by the intervener and incurred by the party reasonably. Where the court is of the view that exceptional circumstances would make the award of costs under the clause inappropriate, it need not make an award.
That is a crucial point on all of this. There are still provisions that give the judiciary the freedom, in exceptional circumstances, to say, “This is a particularly distinctive case, and we need to pursue an approach that is different from the norm.” We have left in provisions for such exceptional circumstances, but on clause 67 we have taken on board some of the concerns expressed. The amendments in lieu are not about preventing legitimate intervention in support of a case brought on behalf of a disadvantaged individual, but are about preventing a powerful group from using someone with no money as a human shield for a case in which the group intervenes behind that individual, with the public picking up the cost regardless of whether the case is won or lost. That should not happen.
We believe that the amendments in lieu strike a sensible balance. They meet the concerns expressed by hon. Members from different parts of the House in a way that will reassure both them and those in the other place that our intention is to tackle the challenge of such human shields, not to remove altogether the ability to intervene in cases where there is a legitimate reason for doing so.
Will the right hon. Gentleman confirm that he is therefore re-establishing judicial discretion?
As I just said, we have never taken away judicial discretion. We have left in place the clause on exceptional circumstances. Almost every week, this House passes measures that set tramlines for the courts to operate within. We set maximum sentences, but if the maximum sentence for a crime is five years, we do not say that judges should give a five-year sentence; we give them the flexibility to decide what is the right length of time below that.
We are taking a similar approach with these proposals. We are saying to judges, “Look, you’ve got some flexibility, but there are parameters that we need you to operate within.” To my mind, that brings common sense back to the system of judicial review and deals with the frustrations with a system that can be abused. It does not create a situation in which legitimate judicial reviews cannot be brought.
Surely my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) would admit that an organisation should not be able to bring a case to court free of financial risk because it is shadowing behind somebody who has no means and therefore cannot have costs awarded against them; that an organisation should not be able to set up a shell company to bring a judicial review without any information being available to the court about who is behind the shell company; and that an organisation should not be able to delay a difficult spending decision by arguing to a court that the whole process should start all over again because of a minor technicality. Those things happen on a regular basis and they must change.
These reforms are essential in restoring common sense to judicial review. I hope that the House will back the motions to disagree and the amendments in lieu.
Although it is some two and a half years since I last spoke on a series of Lords defeats of Ministry of Justice legislation, I have an acute feeling of déjà vu. On 17 April 2012, this House considered the 11 defeats that their lordships had inflicted on the infamous Legal Aid, Sentencing and Punishment of Offenders Bill. Today, we examine the four considerable dents that have been put in the Criminal Justice and Courts Bill. The three that we are considering in this group of amendments substantially amend part 4 of the Bill, which seeks to hobble the administrative law remedy of judicial review.
LASPO is fresh in my mind today for two reasons. First, those 11 defeats were whittled down, in the course of ping-pong, to some important but narrow wins. Secondly, the Government have spent the past 30 months trying to squirm their way out of even those concessions. The MOJ is still deciding what to do about the High Court decision that its review of costs rules for mesothelioma cases was unlawful. Let us remember that it is trying to enforce, against the will of Parliament, the payment by sufferers of that terrible disease of up to 25% of their damages in legal fees. Further proceedings are pending on the evidential requirement for obtaining legal aid in domestic violence cases—another defeat for the Government.
Both Houses may wish to note how the Government have sought to dodge the undertakings that were given to two of the most vulnerable groups in society—terminally ill cancer sufferers and domestic violence victims—when they look at any purported concessions in the Bill. Of course, the fact that a Government who go back on their commitments to Parliament and let people down are held to account by the courts is at the root of this attack on judicial review. The Lord Chancellor has lost six judicial review actions in the past year and there are several strong cases in the pipeline. Might that have any bearing on his current attack on judicial review?
For once, notwithstanding the truncated nature of the debate, I feel that we have enough time to debate an issue that the Government find very uncomfortable. That is not because there is a lack of arguments to put against part 4, but because they have already been put many times and have not been rebutted. On Second Reading, in Committee, on Report and on Third Reading in both Houses, there have been long debates on the dangers and inequities of this attack on the rule of law and the rights of the citizen against the state.
An unprecedented alliance of charities, the legal professions, the judiciary and victims of Government injustice has come together to support the Lords amendments. On the “Today” programme this morning, the noble Lord Woolf, who was a sponsor of the Government’s defeats, said that the Bill undermined the independence of the judiciary and, thereby, the rule of law. All the arguments are on one side. Against the clear voice of the experts, which says that this attack on judicial review is a constitutional provocation, we have the childish statements from the Lord Chancellor, who says that judicial review is a left-wing conspiracy. He should tell that to those who are reliant on the independent living fund, the Gurkhas and the victims of care home abuse, or indeed the Countryside Alliance and Stop HS2, all of which are successful challengers of his Government’s arbitrary exercise of power.
The only thing going for the Government is the majority that they hold in this House. The real issue today is whether they can use it to batter the other place into submission. Sadly, there are too few supporters of individual freedom on the Tory Benches. Tory Members either support the big corporation over the little man or have swallowed the Lord Chancellor’s infantile line that judicial review is all about subversive left-wing groups stopping the wheels of commerce turning. We are left to hope—I find it difficult even to say this—that the Lib Dems will wake from their comfortable ministerial sleeps to remember the time when they claimed to be the party of civil liberties. To wait is to hope, but as only one Liberal Democrat MP has bothered to attend this important debate on civil liberties and the rights of the individual, I do not think that we can have much hope.
We do indeed stand on the shoulders of giants in conducting this debate. The names that graced the amendments that were made in the House of Lords included not only the former Lord Chief Justice, but other esteemed lawyers such as Lord Pannick, the Labour spokesman Lord Beecham, Lord Carlile and many other senior jurists. Indeed, the President of the Supreme Court and the Master of the Rolls have also spoken out in clear and emphatic terms to say that the Government proposals are not just folly, but dangerous steps to take. I am amazed that any Lord Chancellor—even this one—would ignore those protestations.
It is not wrong to see this concerted attack on judicial review as of a piece with other reductions in access to justice that this Government have advanced, such as on legal aid, on no win, no fee, and on court and tribunal fees. However, judicial review seems to receive particular opprobrium from this Lord Chancellor. That is strange in many ways. Judicial review is already a remedy of last resort and already includes a permission stage. Its accessibility has been limited by the changes to the rules on legal aid for judicial review and the shortened time limits for applying. Indeed, Lord Justice Jackson, some of whose recommendations on costs and civil claims the Government have grabbed on to, advised that it was already very difficult for the ordinary citizen to apply for judicial review for want of funds and expert knowledge, and that we should look at broadening the basis for bringing a judicial review claim.
The attack on judicial review should be of concern to us all. It is a remedy that can protect the rights of very vulnerable individuals, such as young prisoners and dementia sufferers; that can save whole communities from wrongful decisions by the state, such as when the closure of Lewisham’s accident and emergency department was ruled unlawful; and that can establish the law on important points of policy, often with the help of expert bodies that intervene to assist the court on a point of general principle. It is, as Liberty says,
“a crucial tool which allows ordinary people to challenge decisions by the authorities—either because they’re unlawful, irrational, or made in the wrong way.”
I suspect that if their lordships had not been interrupted by other business, they would have continued to neuter the clauses that deal with judicial review. As it is, they stopped at just three defeats for the Government, each of which was important. We urge all Members of the House to vote against the motions to disagree in respect of each of the clauses at issue. For the avoidance of doubt, we will press to a vote, just as their Lordships did, the matters that relate to the “highly likely” test, financial information, and interveners.
I will not speak for long because we have limited time, but I will come on to those matters in a few moments.
It is not only Labour peers who were rallied by Lord Beecham who share our view. Indeed, as he pointed out, the Lord Chancellor’s proposals have been roundly condemned by every independent and bipartisan body that considered them, including the Joint Committee on Human Rights and other Committees of both Houses. Furthermore, the former Conservative party chairman Lord Deben referred to the changes as “out of line” and “unacceptable”, and Baroness Williams called them an “act of absolute tragedy” that she was “very troubled” by. Lord Howe voted against the Government, as did many pillars of the legal establishment—so much for the Lord Chancellor’s left-wing plot.
Each amendment that the Government have resisted has a particular point to make. On the “highly likely” test, all their lordships are saying is that judicial discretion should be retained, and that the court may refuse judicial review if it concludes that it is “highly likely” that the outcome for the applicant would not have been substantially different had the conduct complained of not occurred. If we stick with the Government’s proposal and disagree with the amendment, public bodies will be allowed to escape responsibility for unlawful decisions. In the long run it would change the role of judges in judicial review cases as they would be invited to second-guess how decisions have been taken. The Government are confusing remedy with unlawfulness, and potentially creating far more problems at earlier stages of judicial review cases—and causing far more court time to be taken up—because the court will have to consider the implications of its decisions and not the process under review, as is the case at the moment.
On financial barriers, the evidence—I emphasise that word—of practitioners and those who have represented parties on all sides suggests that the chilling effect of the clauses will be felt first by people of limited means who look for support in their judicial reviews. That could be family members—for example in a care home case—or individuals in a community, perhaps on a planning case, but it could also be charities and other not-for profit organisations. Such organisations have said clearly that although they are currently prepared to support judicial review proceedings, if there is a risk that the court will look at the funders and potentially penalise them in costs, their trustees will not be prepared to continue doing that, whatever their support for the individual action. Each clause in part 4 purports to be a simple tinkering change and a way of dealing with things at the margin to ensure that unmeritorious cases do not come forward. However, evidence from the judiciary, practitioners, interveners and everyone who has participated in the process suggests that the clauses will have a chilling and discouraging effect. That is as true for provisions on financial barriers as for the “highly likely” test or interveners.
The issue of interveners has taken centre stage, and at an early point in proceedings the Government said that they would table amendments to deal with the concerns expressed. We had one of those little dances that takes place between the Liberal Democrats and the Government, when the Liberal Democrats say, “We’re not happy with this, can we have a concession?”, and grudgingly, at the last minute—last Friday in this case—we have a concession.
Let us consider the concession the Government are proposing. What they originally proposed, and what the House of Lords disagreed with, is the idea that only in exceptional circumstances and very rare cases would interveners be protected from paying costs. That does not mean their own costs, which interveners customarily pay, but those of all parties involved. That was clearly wrong, and the Government appear to accept that. As the deputy president of the Supreme Court said, interventions are of great assistance to the court and there can be merit in interventions. Therefore, amendments have been tabled. It is clear why Labour supports what the House of Lords said, and that the matter should be—as it is now—at the discretion of the court. The court has completely adequate powers, should it wish to exercise them, to punish or find against interveners on costs if it believes there is no merit in the intervention or if it believes—this is unlikely—that time has been wasted during proceedings. That matter is currently, and should properly remain, at the discretion of the judge.
Let us consider the amendments, because this is the most disingenuous part of the debate. We waited months—since June, I think—to see what concession the Liberal Democrats with all their bravery had wrung out of the Government. The opinion of everyone who has considered the amendments since they were published just before the weekend is that not only do they not address the issue, but they make the situation worse. The reason for that is simple. Previously, there could at least be exceptional circumstances. Now, a series of criteria must be met, otherwise a mandatory duty means that all costs associated with the intervention would be recoverable by all other parties, including losing parties. Therefore in certain ill-defined circumstances, the court would have no discretion to act to prevent an unjust outcome, despite interveners having been granted permission to intervene by the court, and encouraged to proceed. That will have a more damaging effect than the Government’s original proposal to create a presumption that costs would be payable except in exceptional circumstances. Only this Government could make the situation worse by making a concession.
In a way, the wording does not matter. The net result of those criteria is to set up retrospective tests that mean that the chilling effect will apply. Interveners are typically charities, not-for-profit organisations and others who may perhaps have funds to pay their own costs, but will not risk the definition of terms such as “in substance”, “taken as a whole”, “significant assistance”, or whether something is “necessary” for the court to consider whether someone has behaved unreasonably. A judicial review often develops from the permission stage through to a full hearing, and during that time it is perfectly possible that certain facts become more or less relevant. What impecunious charity will take those risks? This is another attempt to pull the wool over our eyes by setting up impossible hurdles and mandatory tests where matters should be left to the discretion of the judge.
The hon. Gentleman is missing the point. Why should those who row in to back a judicial review that they lose be automatically insulated from the costs of doing so? He knows that time after time the taxpayer picks up the bill. This measure is simply to ensure that those who row in behind a judicial review but do not make a valid contribution to the process cannot be immune from facing the costs if they lose.
Order. May I remind both Front-Bench speakers, one who has already spoken and the other who has been speaking for rather a long time, that the debate ends at 7 pm and other Back Benchers wish to participate? The Secretary of State has got his points on the record, and perhaps Mr Slaughter will conclude his remarks so that we can call the Back-Bench speakers.
I give up with the Secretary of State. We are talking about interveners, who are there to assist the court and broaden the issue where it is helpful for matters of public policy. If he cannot see that after having discussed the Bill since February, I really do give up on him.
The Government proposals would prevent judicial review if they can persuade a court that it is highly likely that an unlawful act would have been lawful if done differently. That is a recipe for poor decision making. They will hobble the attempts of people to raise the considerable funds needed to bring a case and weaken their ability to have protection from the Government’s costs if they lose. Most bizarrely, they discourage the intervention of expert bodies, such as charities and civil society organisations, which often assist the court in making the right decision. Under pressure on this last point, or to give the usual fig leaf to the Liberal Democrats, a series of last-minute amendments have been tabled by the Lord Chancellor on interveners, but the opinion of experts who have looked at them is that, if anything, they make the Bill worse.
Labour MPs will therefore vote to uphold judicial review and the rights of the individual against the state. We will oppose the motion to disagree with each and every one of the Lords amendments in this group. We will vote against the Government’s amendments in lieu. We may, I hope, be joined by one or two libertarian Tories, although I am not holding my breath. It will be interesting to see how many Liberal Democrats, so keen to shout about their love of liberty before voting for legal aid cuts in secret courts, will join us in the Lobby.
I regret the tone of the hon. Member for Hammersmith (Mr Slaughter), which fell beneath the standards the House is entitled to expect on so important a matter. The tone was cynical and frankly insulting to those of us on the Government Benches who have spent many years of our lives fighting for the rights of individuals in the courts.
I should, before I begin, draw the attention of the House to my entry in the Register of Members’ Financial Interests. I appear in courts, specifically in the administrative court, quite frequently. [Interruption.] I hear the hon. Gentleman, from a sedentary position, hurling yet another insult. I do not know what he was like in the legal profession, but if he won as few arguments by his gracelessness and charmlessness as he is winning this evening, no doubt he switched professions with very good reason indeed.
In substance, many of the points the hon. Gentleman makes—they are not, I think, his; he is merely puppeting and gibbeting the points made by his betters and those more equipped than he to make the criticisms—are, I have to say, correct in the substance of the matter. That is why I say to the Secretary of State that, although one cannot always choose one’s friends in this House on specific topics, I am extremely troubled by what he is introducing. I sympathise with and understand the frustration that, he feels with the industry, it may well seem to those in charge of the Executive, that judicial review has become. I understand that, but my concern is that the measures my right hon. Friend is introducing are not well targeted or adjusted to the mischief he is seeking to suppress.
One of the examples I give is the provision to introduce a likelihood test as to the outcome of any judicial review. The problem with this measure is that it does two things, unintended no doubt in their consequence by the Secretary of State. First, it will turn permission hearings, and substantive hearings if permission is granted, into an immensely detailed and cumbersome process of trawling through fact and evidence so as to equip the judge to take a decision on whether it was more likely than not that the decision would have been taken anyway, and in order to demonstrate that it would have been taken anyway if the flaw had been identified by the judge. The presupposition is that the judge has identified a technical flaw, as my right hon. Friend would call it, either in consultation, natural justice or perhaps even discrimination. The public authority will then seek to justify its position by saying, “Well, it would have made no difference and you, the judge, on all of the evidence, can take the view yourself that this would have made no difference.” That converts the judge into the decision maker.
This is the second point that troubles me: not only will it become a cumbersome fact-heavy process, which judicial review is not intended to be and most judges fight very hard to ensure that it is not, as a consequence of the Secretary of State’s amendment, but it will place the judge much closer to being a decision maker on these matters that ought to be for the Executive. Judges generally observe, and they should, a long-stop position. It is only if the decision is unlawful in that it is irrational, perverse, procedurally improper or taken for extraneous motives. That is a very high bar, but the Secretary of State’s amendment would lower that bar. It would put the judge in the position of being much closer to the decision maker. In fact, it transgresses a very important constitutional principle, which is that the judge should not get involved in examining the merits of a decision. He is looking only at whether it is irrational, something of which the bar is so high that it is unlikely and that is why so many cases fail. If one asks the judge to make a decision on whether it is probable that the decision would have been taken anyway, one immediately introduces him into the arena of the merits and the facts. That will cause an avalanche of new evidence to be submitted and will mean that the judge starts to get much closer to making decisions on the merits and the facts. That is why I am troubled by the Secretary of State’s amendment.
If it were the case that minor technicalities of the kind the Secretary of State characterises were habitually accepted by judges, I would understand the problem. However, with respect to the Secretary of State, that is not my experience. Certainly, cases may be brought on that basis, but minor technicalities lead to the decision being defective. In my experience those arguments are very soon rebutted, but the Secretary of State has a perfectly right point that there is a case for accelerating judicial review and creating a much more robust system for allowing those kinds of cases to be winnowed out earlier.
The second matter I want to address relates to the interveners. The Government’s original position did trouble me and I think the new provisions are an improvement. I have to say that I found the remarks from the Opposition Front Bench quite surprising. It seems to me that there has been a genuine effort by the Government to move in the direction of those who had real concerns. I do not perceive the risk to be as great as the extraordinary and extreme language adopted by the Opposition proposed. What is being suggested here is not unreasonable, provided that it is interpreted broadly and generously by the courts, as no doubt it will be. What it suggests is that an intervener must effectively have wasted the court’s time. In other words, the intervener must have been of no assistance, or no significant assistance, to the court; that he has targeted his submissions where the court is not helped by them, he has behaved unreasonably, or, alternatively, has taken on the main function of applicant in those circumstances. While the provisions are broad, I think the courts can be trusted to interpret them in favour of bringing meritorious claims, and I would have no problem going into the Lobby with the Secretary of State in that respect.
I wonder if the Secretary of State will have the opportunity to make further remarks on this subject, however, because at the moment I cannot give him my support in the Lobbies on matters relating to the earlier clauses, specifically the “highly likely” clause. The inevitability test the courts have previously adopted drew an important constitutional line that he is asking them to cross. The clause will create pragmatic difficulties in the courts and mean that flagrant and absolutely unacceptable behaviour by the Executive could be condoned by saying, “Well, it made no difference.” There are times when courts ought to mark a fundamental lack of due process.
I hear the Secretary of State, but the Bill does not refer to “minor technicalities”; as the Bill reads, the default position would be that any abuse of due process or power could be justified and defended on the basis that the decision would in any event probably have been taken. It is difficult to make “exceptional circumstances” clauses work, because the courts say, “Well, ‘exceptional circumstances’ cannot mean a lack of fairness or an abuse of power.” I have spent many years examining these kinds of clauses and arguing them in the courts, and I know that “exceptional circumstances” clauses are rarely invoked, because courts are reluctant to acknowledge them as a standard resort in such circumstances. It would take something extreme indeed for a court to be persuaded it was exceptional. On the other hand, abuses of power happen quite often, I am afraid, and the clause is likely to condone those abuses of power, whereas often where there is an abuse, it is right that the decision be taken again.
Lords amendments 97 to 102 were carried in the other place to ensure that courts maintained their discretion in determining whether to grant a judicial review by making use of the “highly likely” test. Groups such as Justice have rightly concluded that if these amendments are defeated, it will change the role of judges by inviting them to second-guess how decisions might otherwise have been taken. From his experience, the hon. and learned Member for Torridge and West Devon (Mr Cox) has detailed some very potent arguments why the amendments should be upheld. Parliament should never seek to undermine the courts’ discretion; courts should be free to determine whether to apply the “no difference” test, and to legislate otherwise would impede the integrity of our legal system. I therefore support these amendments.
Lords amendments 105 and 106 would allow the courts to consider the circumstances of individual cases in determining whether to grant an application for judicial review, even in cases where third-party information is not readily available. In clause 66, the Government have tried to find yet another means of limiting the circumstances where applications for judicial review can be heard. The amendments seek to ensure that applications can be heard in cases where third-party information is not easily available.
Judicial review is often the only means by which individuals can hold the Executive responsible for wrong -doing, yet the Government are trying to shut down that avenue for redress. The Joint Committee on Human Rights has said it sees no evidence to support the Government’s reforms, and neither does Justice, Liberty, JustRights, Human Rights Watch, the Howard League, Redress, Inquest, Mencap, Amnesty International—the list goes on. Can anyone report which groups actually support the Government in these changes? [Hon. Members: “The Whips.”] Yes, the Whips.
On clause 67, Lords amendment 107 would maintain courts’ discretion over whether to order an intervener to pay the costs of relevant parties and vice versa. As drafted, the Bill would compel the court to order interveners to pay such costs, other than in exceptional circumstances, as we have heard from the hon. and learned Member for Torridge and West Devon. The provisions in clause 67 are among the most disturbing in the Bill. Unamended, the clause would ensure that charitable organisations and individuals with expertise could no longer enrich the opinion of the courts by intervening in cases where their expertise would be of use because they could not justify the risk to their trustees, funders or members of supporting litigation. As the noble Lord Carlile asked in the other place:
“How could trustees reasonably agree to support an intervention when it could result in losing tens of thousands of pounds or more in costs, jeopardising, in some cases, the existence of small charities?”—[Official Report, House of Lords, 30 June 2014; Vol. 754, c. 1607.]
Yet the plans would still allow Departments and corporations with huge funds to intervene and hence play a pivotal part in the development of public law.
I ask the House to reconsider the Government’s proposals in the context of the various and—I am trying to avoid vitriol—crippling reforms to access to justice in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As a result of the significant cuts in that Act, more individuals will be looking to charitable organisations for support in getting justice. It seems to me that clause 67 will take away this last resort. I am afraid the Government seem intent on restricting access to justice so that only those with the least to lose can gain redress. Why do they think it necessary to pursue this agenda, which will throw the baby out with the bathwater, despite the perceived misuses of the law relating to judicial review? The hon. and learned Gentleman, a far more experienced lawyer than me, has referred to the time-honoured practice of judicial review—the Wednesbury principles and so on—and the practices in place to ensure that Departments act reasonably in all circumstances. Why should we not uphold the individual’s rights to ensure that Departments act reasonably?
In conclusion, Justice said:
“Punitive and disproportionate, these measures are designed to deter any organisation with limited funds acting as an intervener. In practice, this means that – even in important cases with a constitutional impact which reaches far beyond the immediate interests of the parties - the court will no longer benefit from expert advice and information provided from cash-poor and experience rich charities and NGOs.”
I think that says it all. As we heard earlier, senior judges themselves are on the record as saying that the courts are enriched by the interventions of these people, who know exactly what they are talking about.
I commend to this House the words of the former Lord Chancellor, the noble Lord Mackay of Clashfern, in the other House. He supported the Bill and set out a sensible balance, as did the Minister, Lord Faulks, himself no slouch as a Minister. It is right that those who come to the Queen’s courts in a public hearing should not shield their true identity or who truly funds them. The Government are right to insist on that point.
It is legitimate for Parliament to set the parameters within which the undoubtedly important system of judicial review works. That is what the Bill seeks to do: it strives to strike a fair balance. I hope the House will support the proposals of my right hon. Friend the Lord Chancellor. It is absolutely critical that we have a comprehensible and credible system of judicial review. I want to see that as much as anyone else, but the mission creep of some areas of judicial review, very often for politically motivated purposes, undermines the true purpose of judicial review as a legitimate and important remedy for the individual. I believe that the Government’s proposal, despite the rather hyperbolic—
Debate interrupted (Programme Order, this day).
The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83F), That this House disagrees with Lords amendment 97.
Lords amendment 97 disagreed to.
The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F)
Lords amendments 98 to 102 disagreed to.
Provision of information about financial resources
Motion made, and Question put, That this House disagrees with Lords amendment 103.—(Mr Vara.)
Lords amendment 103 disagreed to.
Lords amendments 104 to 106 disagreed to.
Interveners and Costs
Motion made, and Question put, That this House disagrees with Lords amendment 107.—(Mr Vara.)
Lords amendment 107 disagreed to.
Government amendments (a) to (e) proposed in lieu of Lords amendment 107.—(Chris Grayling.)
Question put, That the amendments be made.
Amendments (a) to (e) made in lieu of Lords amendment 107.
Secure colleges and other places for detention of young offenders etc
I beg to move, That the House disagrees with Lords amendment 74.
As it has been some months since we last debated the Government’s plans for secure colleges, let me briefly remind Members of our ambition for secure colleges to transform the experience of young people in custody. At present, 68% of detained young people reoffend within 12 months of release—that is the highest reoffending rate of any group of offenders. Despite that poor outcome, we are paying on average about £100,000 a year for each place in youth custody—the figure rises to more than £200,000 a year for places in secure children’s homes, though the reoffending outcomes are no different. So it is clear that carrying on as we are is simply not an option. The Government believe that we must have higher ambitions for turning around the lives of troubled young people who end up in custody, and that putting education at the heart of youth custody, properly integrated with health and other support services, is the way to equip these young people with the skills and self-discipline they need to build productive, law-abiding lives on release.
Secure colleges will do that by being places of education first and places of detention second. We want to move away from the culture of bars on windows, and foster one of engagement and personal development. Our intention is to test the secure college model by opening a secure college pathfinder in Leicestershire in 2017. This purpose-built facility will, for the first time, provide detained young people with a secure learning environment in which education has been designed as the core of a regime tailored to the specific needs of young people.
I understand the aspiration to try to provide something that is educationally rather than penally driven, and we all hope it works. Does the Minister accept that there is a risk that it will not quite work? Would it not be sensible to phase things in, starting off by involving just boys over 15 and then expanding the scheme only if it actually works?
The intention is not to introduce girls and children under 15 at the start. We have engaged throughout this process and we intend to carry on doing so. We will, through a competition to be launched next year, invite potential operators to demonstrate how they would deliver innovative education and rehabilitation services to these young people. I am disappointed that we are today discussing Lords amendment 74, which excludes girls and under-15s from secure colleges, denying them access to the substantial benefits that we believe the secure college model will deliver for detained young people. I recognise the arguments that have been made during the passage of the Bill, both here and in the other place, about the particular needs of girls and under-15s detained in custody. I recognise also the need for establishments to put in place appropriate protections to ensure that these more vulnerable groups are kept safe. Those are valid arguments, and the Government are extremely mindful of their responsibilities to these vulnerable young people.
The lack of any improvement over 40 years by any Government in reducing recidivism condemns us as politicians. We welcome any fresh initiative, but can the Minister tell us whether there is any model, anywhere in the world, where the system he is introducing has worked?
As the hon. Gentleman has rightly pointed out, we have lamentably failed to reduce reoffending over a very long period. In addition, we spend a huge amount of taxpayers’ money per place to achieve very poor results. I have seen good education in our current establishments, but I believe we can do better. The time is ripe for us to try something different, based on sound principles, putting education and health at the heart of what we are doing, and making appropriate interventions, all of which will be in place. We are confident that secure colleges can not only meet the needs of girls and younger children in custody, but improve on the education and reoffending outcomes that current facilities achieve.
As the hon. Lady may know, we are going to run a competition, which I will describe shortly, to find an education provider. But we are committed to increasing the amount of time in education and we want innovative responses to raise standards further because, as she will know, the results at the moment are simply not good enough.
As I have said, at this stage the Government have plans only for a single secure college pathfinder that will open in 2017, and it has been designed so that it is capable of housing about 300 young offenders aged 12 to 17. It is true that the majority of the young people in this first secure college will be boys aged 15 to 17, but that does not mean that girls and under-15s could not be safely accommodated on the same site and provided with the tailored services required to rehabilitate and educate them. Girls and boys aged 12 to 17 are already safely accommodated together in secure training centres, as well as in secure children’s homes.
Our designs for the secure college pathfinder have been specifically developed to ensure that if girls and under-15s were to be placed there, they would be accommodated in separate and smaller living units, entirely distinct from the accommodation for the majority of older boys. In our consultation on our plans for secure college rules, we also proposed a rule that girls must be separately accommodated from boys.
The Minister has more or less taken my speech away from me, because to a large extent my concerns have been allayed and it is good that he is running a pilot for boys to see how that works. But how long does he think an individual youngster has to spend in that set-up in order to gain education. In other words: is there a minimum time?
Obviously, how long children spend in these institutions is not up to us but up to the courts. What I say to the right hon. Gentleman is that significant improvements can be made in a short period. I have seen huge advances in a child’s reading within an eight-week period, so significant advances in education can be made in relatively short periods and, of course, many children are sentenced for considerably longer than that, as he will well know.
What we have committed to is separate living accommodation. When I visited a secure training centre recently, I saw young children—both girls and boys—happily learning how to put up wall paper and to cook banoffee pie. I can tell the hon. Gentleman that the accommodation will be separate. The whole set up and design of the secure college will be such that it will be possible to have considerable separation if and when we need it. I hope that he is reassured by that.
The Minister may be aware that when the Bill was in Committee, we heard from a number of experts, including charities, doctors and other people working with young people and offenders, and they said that the way that the secure colleges had been set up as large institutions was completely unsuitable for young people.
I hope that I can reassure the hon. Lady on that point. I understand the concerns that she raises. Is she aware of how the secure college is designed? We will, for example, have 12-bed units for the more vulnerable groups, which could include girls and children under 15. There are 20-bed and 10-bed units. We believe that it will be possible to offer that proper support. The set-up will allow smaller groups of young people to foster that sense of community, belonging and close relationship with those that will be looked after.
I will just finish this point and then I will let the hon. Lady in, not least because her mother is one of my constituents. There will be no occasion when all 300 or so young people will be milling around together in any part of the secure college. I hope that that allays the hon. Lady’s concerns.
I share the concerns of my hon. Friend the Member for Bolton South East (Yasmin Qureshi). Nobody involved in rehabilitation or education has said that this is a good idea. The Minister did not quite answer the question of my hon. Friend the Member for Stretford and Urmston (Kate Green) about whether the teaching staff will be qualified teachers. Moreover, what sort of ratio of children to teachers does he expect in that learning environment?
As I think the hon. Lady knows, we will be running a competition, and we will be looking for innovation and creativity from providers. We will assess the bids very rigorously on the basis of the best quality of education, so we are a little way off being specific on that at the moment. The hon. Lady will have heard me say very clearly that this is an institution that will have education at its core, and that we would not be doing this if we were not absolutely determined to do better than is currently done on the education front.
Now, if colleagues will allow me, I will make a little progress. Both measures will ensure that girls, and boys aged under 15, receive the tailored support that they need in secure colleges. Throughout the passage of the Bill, and indeed the development of our plans for the secure college pathfinder, we have actively engaged with interested parliamentarians in both Houses and wider stakeholders and experts, including both NHS England and the Department for Education. In the light of the feedback that we have received from peers, we have made changes to the plans to enlarge the site of the pathfinder by two acres to ensure that the younger and more vulnerable groups have sports and recreational facilities near their accommodation, and that there is greater separation between the larger and smaller units on the site. I am therefore satisfied that the secure college pathfinder would be able to deliver a distinct regime that caters for the specific needs of girls and under-15s while always keeping them safe.
I thank the Minister for giving way a second time; he is being very generous. We all hope that everything works out as he anticipates. What assurances can he give us that the contract that would be signed would be such that if there were a decision not to go ahead with extensions, the taxpayer would not be financially penalised?
I am not sure whether the contract would specifically relate to the number and type of young people who were on the site, so I think that those would be separate issues. However, there is a strong argument for not discriminating against girls and young people. As a father of three daughters, I would not want to think that we were in any way discriminating against girls. That is an important principle.
I should stress that although the other place has proposed amendment 74, the Government have been clear that no final decisions have been taken on who will be accommodated in the secure college pathfinder. That will be determined in the light of analysis of the make-up of the youth custodial population ahead of the pathfinder opening in 2017. We have also given our commitment that girls and under-15s will not be placed in the pathfinder from its opening, and that any decision to introduce them would be carefully phased.
I hope that Members will agree that girls and under-15s should not be prevented from benefiting from the enhanced opportunities and facilities provided by secure colleges. Members should acknowledge the careful consideration that we have given to these matters, and the efforts we have made to ensure that girls and under-15s could be accommodated safely in the secure college pathfinder. For those reasons, I urge the House to reject Lords Amendment 74.
Lords amendments 127 to 130 are minor Government amendments consequential to earlier amendments made by this House to extend the secure college provisions to Wales. Those amendments were necessary to ensure that principals of secure colleges were treated under the Social Services and Well-being (Wales) Act 2014 in the same way as those in charge of other types of custodial establishment.
The purpose of amendments 127 to 130 is to ensure that the Welsh language text of the Social Services and Well-being (Wales) 2014 Act is consistent with the English language text of the 2014 Act as amended by schedule 5. That is necessary because the two instruments are legally separate. I can assure the House that the effect of the amendments is unchanged from the English version seen earlier, and I ask Members to agree to Lords amendments 127 to 130.
Lords amendment 131 concerns the process for approving secure college rules. In its third report of the Session, the Delegated Powers and Regulatory Reform Committee recommended that if the Bill is to enable secure college rules to authorise the use of force for the purpose of ensuring good order and discipline, those rules should, to the extent that they authorise the use of force, be subject to the affirmative procedure. The Government were pleased to accept that recommendation on Report in the Lords and consequently ask the House to support this amendment.
As the first set of secure college rules will contain provisions authorising the use of force, an effect of this amendment would be to make the entire first set of rules subject to the affirmative procedure. That will give Parliament additional oversight of the first set of secure college rules. The Government’s consultation on their plans for secure college rules closed on 27 November. We are considering the responses that we received. I urge Members to agree to Lords amendment 131.
I rise to speak against the Government’s motion to disagree with the other place, and in favour of Lords amendment 74. I give notice of our intention to vote against the Government’s motion tonight.
This debate is about sparing girls and young children—the most vulnerable offenders—from a flawed, expensive and potentially dangerous institution, with which the Government should not be going ahead. I listened very carefully to what the Minister said and will respond to some of his specific points in a moment, but would not the Government’s proposal for secure colleges be a step in the wrong direction for our youth justice system? It is a plan without any real supporting evidence.
Even the Government’s own impact assessment accepts that their plans are untried and untested and the Government have not been able to produce a single independent expert to vote for the proposal. The NSPCC, the Royal College of Psychiatrists and nearly 30 other leading children’s charities have publicly condemned the plans as “expensive and dangerous”.
Let me be clear: improvements need to be made to youth custody. Reoffending is still too high and education can and should play an important role in the rehabilitation of young offenders, so I welcome the efforts that Ministers are making to improve the delivery of education in young offenders institutions where it is not good enough. At a time when the youth custody population is falling, however, Labour does not think that construction of a new type of prison is the correct way to proceed.
Does my hon. Friend agree that one aspect of rehabilitation is being able to keep in contact with family and close ones? It is proposed that this college will be in Lincolnshire and there will be only one in the whole country, so my hon. Friend can imagine the travelling that the parents of the children will have to do to visit. That completely defeats the object of rehabilitation.
My hon. Friend is absolutely right. All the evidence explains that small units that are closer to home with a higher staff ratio are more suitable, particularly for girls and young offenders who have complex needs.
Let me respond now to some of the Minister’s points about the accommodation of girls and young children. We know that girls and children under the age of 15 are overwhelmingly in the minority in the youth custody population. In 2012-13, 95% of children in custody were boys and 96% were aged between 15 and 17. If those ratios were reflected in the 320-bed secure college, the Government would be accommodating fewer than 20 girls and about a dozen younger children together with nearly 300 older and troubled teenage boys. That has all the makings of an incredibly intimidating environment with real safeguarding concerns for the most vulnerable offenders and it is why large facilities such as young offenders institutions only accommodate boys over the age of 15. It also helps explain why, as I have just said to my hon. Friend the Member for Bolton South East (Yasmin Qureshi), all the evidence shows that small units closer to home with a higher staff ratio are most suitable for girls and young offenders with complex needs. Ignoring the evidence in deciding the composition of the secure college would create a near impossible task for the college principal as the regime would inevitably need to be designed to cater for the needs of the majority, making it all the more likely that the needs of the minority would slip through the cracks.
The problem is compounded by the fact that Ministers have not carried out an equality impact assessment on how girls and younger offenders would fare in a secure college. That was confirmed in a written parliamentary answer to me on 16 June and by the Joint Committee on Human Rights earlier this year. The Committee’s report on the scrutiny of the Bill stated:
“We note that the Government does not appear to have carried out any equality impact assessments of the proposed secure colleges policy, and we recommend that such assessments should be carried out and made available to Parliament at the earliest opportunity.”
I remind the Minister of his Department’s response to the Committee’s report. It claimed:
“We believe that the pathfinder Secure College, an establishment”
“distinct accommodation units and capable of supporting different regimes for the various groups of young offenders, will provide…an individualised service.”
My simple question for the Minister is as follows: how? How will those warm words be delivered in reality? The House has been given no credible information about what life inside a secure college would be like for those young people.
We know that young people in custody have complex needs: mental health issues, learning disabilities, drugs, alcohol and problems of domestic abuse and family breakdown. However, the Government have proposed no credible plan for how the secure college would cater for those needs. They have not explained how they will be able to deliver better results at a lower cost than has been possible in other youth custody environments or how they would do so when the average time young offenders spend in custody is only 79 days.
Right hon. and hon. Members do not have to take my word for it. Let me remind the Minister of the Secretary of State’s letter to the Chair of the Joint Committee on Human Rights earlier this year. Describing the secure college proposals, he said:
“The Bill establishes the secure college in law. Beyond the legal framework, the legislation does not specify details of the regime to be delivered within the secure college.”
The most obvious example of that is the secure college rules.
The rules are crucial. They will not only determine the regime delivered in the secure college but dictate important issues such as the reasonable use of force. The Minister knows that there has been a chorus of concern about that and that the Equality and Human Rights Commission and others have warned that the Bill might even be unlawful as it is drafted. The Opposition do not think that it is sensible to place the most vulnerable offenders in an institution with such question marks about the reasonable use of force. We do not think that that is a good way to legislate.
The Minister also talked about plans to house girls and the youngest offenders in distinct accommodation units, which makes the design of the secure college very important. I invite all right hon. and hon. Members to look at the proposed plans for the secure college, as it does not take an architect's eye to see that this is not “a school with a fence around it”, as the Secretary of State has described it. The plans are all but identical to the plans for a young offenders institution to be built on the very same site that the Government cancelled earlier in the Parliament. Although there might be plans for distinct accommodation in the secure college, the Bill contains no requirements for separate facilities in any future secure colleges.
Indeed. One of the fundamental problems is that there is no credible evidence to support the proposal and no independent experts who are prepared to put their names to it.
Let me ask the Minister for a number of guarantees. If separate facilities are his solution to the issue, why are they not provided for in the Bill? Even if they were, fencing off girls and the youngest offenders is not the answer. It is likely that they would still be in the minority in the separate areas and they would also be cut off from the facilities on the main site for most of the time. There would also still be times when girls and children as young as 12 would need to be moved and escorted across the main site. That would be a recipe for intimidation and it is precisely why youth custody has moved away from accommodating different age groups on the same site. Such sites are more difficult to run and mean that children have to spend more time locked up and fenced off for their own protection, hindering any hope of rehabilitation.
Let me finish by putting it on the record that if we are elected in five months’ time, the next Labour Government will not wish to go ahead with this poorly thought through proposal. The Government have said that they want to cut the cost of youth custody, but wasting £85 million of public money on a vanity project that will do little to rehabilitate young people is no saving at all. Last week, Leicester city council refused a planning application that looks likely to delay the project. Will the Minister say when he expects construction to start and whether the final contract will be signed before the election?
Anyone and everyone who has scrutinised the secure college proposal has seen it for what it is: an ill thought through cost-cutting exercise with a veil of education draped over it. Throwing girls and the youngest children into the mix would be an accident waiting to happen. The other place has had the wisdom and common sense to say so and this House should agree with them.
The Minister is aware that I am strongly against the creation of his secure college. Of all the witnesses we saw in Committee, not one was in favour of creating this prison for children. Indeed, most considered it a joke as it goes against the evidence and recommendations on rehabilitating vulnerable young children. The Government’s proposal for a secure college will introduce a new and dangerous kind of child custody. The Government plan to detain girls and boys aged between 12 and 17 in a 320-bed prison.
There is no doubt in my mind that if these plans go ahead, younger children will be extremely vulnerable. It is inevitable that they will experience higher levels of intimidation by older children and that their needs will be relegated because of a focus on the majority. Evidence shows that girls and younger children are likely to withdraw by refusing to engage in educational programmes or other activities in that environment, which completely counters the professed reason for creating this prison. There has been no impact assessment, so it is impossible to comprehend the implications for those groups.
Currently, young offender institutions only hold boys over 15 because it is recognised that larger institutions are unsuitable for younger children and girls. Girls and under-15s are currently held in secure training centres or secure children’s homes, which are smaller and have a higher staff-to-child ratio. Why cannot that tried and tested model be allowed to continue?
The reality of the secure college is that girls and younger children will still be sharing the same resources. Yes, they may have segregated use, but they will still see, hear and be intimidated by older boys. The vast majority of girls in the penal system have a history of sexual abuse. Imagine what it will be like for them in a testosterone-fuelled environment of boys trying to out-macho each other for fear of appearing weak. The Minister said that he has daughters so I am sure he can imagine how it will be for those girls when they try to sleep at night. How will they move on from the horrors that plagued their earlier lives or be able to develop as individuals when they are outnumbered by 19 to one?
The idea of a giant prison for children is a bad one. We have excellent youth offending schemes that have very positive results in rehabilitating young people. However, I have been in Parliament long enough to know that once the Government have decided on something, they plough on regardless. I beg the Minister to do the right thing and allow Lords amendment 74 to stand.
The notion of a secure college is flawed. Nobody except Ministers thinks it is a good idea—no educationalist, nobody who works in young offender institutions, nobody who works in the criminal justice system and nobody who campaigns for improvements in the way we treat children and young people in the criminal justice system. It seems to be based on a notion that going off to boarding school is a good thing, but this is not going to be like Eton. It will bring together large numbers of young people from very disturbed backgrounds who have committed serious offences. That is not a good idea.
Let us think about many of the young people who are in custody. Many have spent time in care and are likely to have had an absent parent. They have probably experienced neglect or abuse, and the prevalence of mental illness is high. Some 86% of young people in the criminal justice system have been excluded from school, 23% have learning difficulties and 36% have borderline learning difficulties. Boys aged 15 to 17 in prison are 18 times more likely to commit suicide than children of the same age in the community, and 11% of children in prison have attempted suicide. Simply trying to put knowledge into these young people without addressing their fundamental issues is doomed to failure. Young people need to be in the right place psychologically before they can start to learn. Simply trying to shove knowledge into young people who are disturbed, who have come from bad backgrounds and whose mental health is rubbish will not work; they need to be in the right place if they are to learn.
The average length of time spent in custody is 79 days, so how are those young people really going to learn a great deal in that period? The Minister talked about young people learning to read in a short period of time. There might be some successes in basic literacy and numeracy, but I do not see how it can work for their wider education process. We will be putting them in a college many miles away from home and the other support services they will need after their time in custody. They will then, after 79 days, have to reintegrate into their old school, or into a new school, and into those support services, which will not be on the doorstep to help them with their drug problems, mental health problems or all the other issues that young people face.
In Committee it was indicated to us that the teaching staff will not necessarily be qualified teachers. We are not sure about that, because the Minister will not tell us. The Government cannot just say that they will leave it until they have had a competition for people to apply to run the institution. Surely to goodness they need to lay down some firm guidelines on the qualifications and experience that those who will be working with the young people should have.
Why on earth will the Government not look at models that actually work? They should look to Scandinavia, where learning environments are in the community, where people down the street will not even know that the house on the corner is a youth custody premises, and where young people are treated holistically so that not just their education is dealt with, but all the other problems that have lead them to offend and have messed up their lives. They need that whole range of support services. We need that sort of therapeutic community, not a place where 320 young people will, as my hon. Friend the Member for Rotherham (Sarah Champion) said, vie for attention and to prove who is the most macho.
I do not believe that a secure college is a place for 15 to 17-year-olds, but it is very definitely not a place for girls and younger children, who should be in the community. The therapeutic programmes that work for young people are those that are close to the community and that are small and specific. As my hon. Friend said, so many of the young women who end up in the penal system have suffered sexual abuse and other forms of physical abuse. The Government should rule out ever putting them in a place with 320 young boys, which would make the experience awful for them.
I do not believe that we will change reoffending by locking up 320 young people together. I do not believe that we will change educational outcomes for those young people by doing that. I really wish that the Government would accept the Lords amendment, but I also wish that they would reconsider the whole proposal. If nobody else thinks that it is going to work, why are the Government arrogant enough to believe that it will? Surely they should start listening to the professionals, to those who work with young people and understand them, and not go ahead with the college, and they should certainly never contemplate putting young children and women into that place.
I thank hon. Members for their contributions. The Government are committed to improving outcomes for young people in custody. As I said, 68% of young people reoffend within a year of leaving custody, at an average cost of £100,000 a year to the taxpayer. We simply cannot be satisfied with the status quo and need to try something new. Education needs to be at the heart of the offer we put in front of those young people, and so does health.
We have engaged with parliamentarians, stakeholders, practitioners, experts and young offenders themselves on our plans and, in response to Parliament’s concerns, have amended the Bill to ensure that secure college rules are subject to the affirmative procedure to the extent that they authorise the use of force. We want to continue that dialogue as we implement our vision for secure colleges.
I say to the hon. Member for Barnsley Central (Dan Jarvis) that our vision is to have, rather than just a prison with some education in it, a building that is designed as a school—the plans have changed considerably since the first version. We do not think that it is right to educate those young people somewhere with bars on the windows; we think they deserve a better environment in which to learn. The published plans have changed hugely and, as I have said, there will be a considerable health offer within the establishment. Girls are already taught and looked after alongside boys in secure training colleges and children’s homes. We do not expect a delay. Blaby district council supported the proposals unanimously and the local further education college is very supportive of what we are doing.
On the equality impact statement, in accordance with the Ministry of Justice’s duties under the Equality Act 2010, we considered the impact of the proposals set out in the Government response to the transforming youth custody consultation in January 2014. That was made clear in the parliamentary question, which the hon. Gentleman mentioned, on 16 June. I say to the other Members who spoke from the Opposition Benches that girls are already in youth custody, in secure training centres and in secure children’s homes, and many are sentenced there for a considerable time. We have a duty to give them a better offer. What we do at the moment is simply not good enough, and it costs us a huge amount of money. A Government with ambition are right to try to do the best for those young people.
Question put, That this House disagrees with Lords amendment 74.
Lords amendment 74 disagreed to.
Proceedings interrupted (Programme Order, this day).
The Deputy Speaker put forthwith the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).
Lords amendments 127 to 131 agreed to.
We have heard today passionate arguments from all parts of the House on parts 2 and 4 of the Bill on secure colleges and judicial review. The Government amendments made to parts 1 and 3 of the Bill in the House of Lords have significantly enhanced it. I do not intend to explain every amendment at great length, but I will touch on some.
Lords amendments 70 to 72, 116, 117, 126 and 142 introduce important changes to the law by creating a new criminal offence that specifically targets the behaviour commonly referred to as revenge pornography. I am sure that hon. Members across the House will agree that this behaviour is intolerable.
As the Minister says, this is a very important issue, and I raised it when the Bill was here before it went to the other place. It is very good to have this criminal sanction, but does he agree that it will be effective only if it is matched by education so that it is not necessary because people simply do not do these things?
I pay tribute to the part that the hon. Gentleman played in earlier debates on this issue. He is of course right: the law can go so far, but people need to be educated, and that is absolutely part of what we need to do to stamp out this despicable practice.
The malicious disclosure of intimate sexual photographs and films is undoubtedly an extremely distressing experience for victims. Most are left distraught, not only by the disclosure of images that they once thought were private and personal, but by the breach of trust perpetrated by this abhorrent offence. Careers and subsequent relationships have often been ruined as a result.
The offence will apply to disclosure of private sexual photographs or films of people, such as those of them engaged in sexual activity or depicted in a sexual way, where what is shown is not the kind of thing that would ordinarily be seen in public. To constitute an offence, the disclosure must take place without the consent of at least one person featured in the image and with the motivation of causing that person distress. The offence could potentially apply to any individuals in a range of circumstances, although a common scenario would be one in which an individual posts sexually explicit photographs of an ex-partner on the internet without their consent and with intent to cause them distress. It will be punishable with a maximum custodial sentence of two years.
The amendment before the House is the result of much detailed consideration and discussion and is carefully constructed to target the specific behaviour in question. I believe this offence will provide an important means of redress for victims of this cruel behaviour, and I am grateful to my right hon. Friend the Member for Basingstoke (Maria Miller) and my hon. Friend the Member for Cambridge (Dr Huppert) for their excellent work in bringing this to the Government’s attention.
We have also, through Lords amendment 73, made changes to the offence of grooming under section 15 of the Sexual Offences Act 2003. This amendment reduces the number of occasions on which the defendant must initially meet or communicate with the child, so that one single meeting or communication will suffice. The Government are, once again, grateful to the hon. Member for Rotherham (Sarah Champion) for passionately arguing the cause for this change.
We have built on the amendments to the Malicious Communications Act 1988 made in this House by my hon. Friend the Member for Ealing Central and Acton (Angie Bray), by increasing through Lords amendment 82 the time within which prosecutions for offences under section 127 of the Communications Act 2003 can be brought.
We have taken considerable steps towards protecting victims and witnesses under the age of 18 by introducing more effective youth reporting restrictions. Lords amendments 92 to 94, 112, 114 and 141 provide the criminal courts with a new statutory discretionary power to order lifetime reporting restrictions in respect of a victim or witness involved in criminal proceedings who is under the age of 18 at the time those proceedings commence, and whose quality of evidence or level of co-operation may be affected by their fear of being identified by members of the public as a person concerned in the proceedings. This replicates the current situation for adult witnesses in appropriate circumstances who are already afforded lifetime protection.
The Government were pleased to accept Lords amendment 75 tabled by the Earl of Listowel to change the law on how 17-year-olds are treated when held overnight post-charge and pre-court appearance in police custody. As with children aged 12 to 16, they will be transferred to suitable local authority accommodation for overnight detention, rather than spending a night in police cells.
I draw the attention of the House to Lords amendments 5 to 35 and 121 to 123, which introduce new powers that enable the Secretary of State to appoint recall adjudicators. Recall adjudicators will take on the functions relating to the release of recalled determinate sentence prisoners that are currently performed by the Parole Board. These amendments will allow the board to focus its resources where they are most needed—on conducting hearings for indeterminate sentence prisoners. The details of how the recall adjudicator model will operate in practice will be the subject of further development, but Members might find it reassuring to know that my noble Friend Lord Faulks made a commitment in the other place that the Government would lay a report before both Houses before the new system is brought into force.
We have made other positive changes to the Bill through Lords amendments 1 to 4, 36 to 47, 83 to 85, 88 to 91, 113 to 115, 124 and 140. These include minor amendments to some of the existing provisions in the Bill, such as on the offence of police misconduct. They also add new provisions, such as banning the offer of inducements to make personal injury claims, and introducing greater flexibility in the Court of Protection by re-routing appeals away from the Court of Appeal, which will reduce the burden on its work load.
The Government tabled an amendment that will allow the UK to give effect to a proposed new bilateral treaty between the UK and the Republic of Ireland, which will permit mutual recognition of driving disqualifications between the two states, flowing from the EU 2014 opt-out decision. The Government accepted non-Government Lords amendments 48 to 67 and 124 in the other place, which have the effect of aligning the offence of possessing an offensive weapon with the wider sentencing framework.
I urge the House to support the Government in agreeing with the Lords amendments in this group.
Even by the Government’s standards, making 140 amendments in the other place, ranging from new offences and procedures to a plethora of corrections to drafting and operational errors, is remarkable. In the end, most of the matters are uncontentious or the Government have had notice of our objections in terms, so I can be succinct. We do not intend to press any of the Lords amendments in this group to the vote.
However, some issues require considerably more explanation and reassurance, not least the new role of the recall adjudicator. We welcome the fact that Ministers have recognised the additional burdens placed on the Parole Board. Labour has made that point repeatedly during the Bill’s passage. The Government’s impact assessment accepts that the Bill will create at least 1,100 extra Parole Board hearings at a time when its work load is rising and its staff numbers are falling. Nearly one in five staff has been cut since the last election, many of whom were vital supports to the 232 Parole Board members, who are paid per hearing. The staff left in place have to clear a substantial backlog of outstanding cases, while recent Supreme Court judgments have also impacted on its case load. With that in mind, we do not oppose the Government’s efforts to redress the burdens on the Parole Board in principle, but we need assurances on several points.
Introducing the provisions in the other place, the Minister accepted that
“the Bill is silent on the precise workings of the recall adjudicator”,
and that there is
“a great deal of further work to be done on the detail.”—[Official Report, House of Lords, 10 November 2014; Vol. 757, c. 14-15.]
Yet Ministers seem determined to rush through the changes with many questions left unanswered.
The Bill currently does not make it clear who the recall adjudicator would be, what the nature and scope of their role would be limited to, how the appointment process would work, what the costs of the new system would be, or how adjudicators would co-operate with other criminal justice agencies to ensure a fair, robust and effective system of recall. It is not clear what experience, training or expertise would be required of recall adjudicators.
So far, the Government have gone only as far as saying that they intend the positions to be filled by people with “significant criminal justice experience”. The point is best summarised by their impact assessment:
“Recall adjudicators will need to be carefully selected and trained and provided with a clear process and guidance to mitigate the risk of their release decisions either being too risk averse, which would add to the pressure on prison places, or failing to take full account of relevant risk factors, which could lead to the release of prisoners who breach their licence conditions and/or re-offend. This would have adverse consequences on the system as well as incur reputational damage to the MOJ.”
Such “reputational damage” to the Ministry of Justice means a risk to the public that decisions are wrongly taken. Can the Minister give the House any further detail on that point? The Government confirmed in the other place that they had
“certainly not ruled out the possibility of using magistrates.”—[Official Report, House of Lords, 10 November 2014; Vol. 757, c. 15.]
That has raised particular concerns, because magistrates have varying levels of experience and, as adjudicators, would be dealing with prisoners on sentences over and above their usual sentencing powers.
Furthermore, there has been no formal process of consultation on the adjudicator proposals, despite the significant changes that they would mean to the scope and function of the Parole Board. The Government committed themselves in the other place to present further reports to Parliament before this policy is taken any further. Will the Minister confirm what these reports will contain, when he expects them to be laid before Parliament and whether any further consultation will be carried out in the meantime?
The Government have failed to carry out an equality impact assessment on the introduction of adjudicators. Will the Minister explain why? This is perhaps the most crucial point. Until we know what proportion of those who are subject to recall have protected characteristics—I include in that young people, elderly people, people with a physical disability, those who suffer from a mental illness and those with other protected characteristics—and until we know whether those who will undertake the job are qualified to deal with those characteristics, we will not know whether the new system is fit for purpose.
Ministers have cited the Supreme Court judgment in the case of Whiston to show that the creation of a recall adjudicator will not be incompatible with human rights obligations. However, Justice has suggested that
“the case does not provide a full proof justification for the new position, as compared with the independent and suitably qualified Parole Board.”
Can the Minister offer the House any specific assurances on that point?
Finally on this matter, what assurance can the Minister give that the new system will be as robust as the current process? Risk assessing whether prisoners can be released back into the community is a complex judgment and the Parole Board has more than 40 years’ experience in it. Reducing administrative burdens is all well and good, but the cost of it must not be to cut corners and jeopardise public safety.
I welcome the Lords amendments that clarify the sentencing for driving and knife offences, as well as the new offences of police corruption and ill treatment or wilful neglect by care providers. The last of those was recommended by the Francis report. Although the Opposition are disappointed that the Government are not implementing Robert Francis’s recommendations in full, we are pleased that they are implementing his recommendations in this instance.
Those changes highlight the fact that this is a rather different Bill from the one that was first presented to the House earlier this year. The Government’s initial impact assessment confirmed that the measures in the Bill would create nearly 1,000 additional prison places. Since then, the Government have added several new offences to the Bill, many of them tabled just days before a debate in Parliament, with no specific impact assessment, and rushed through with limited opportunity for proper scrutiny. That is not a proper way to legislate. At the same time, our prisons have lurched further into crisis, with overcrowding and violence spiralling. Now that the Bill is back in the Commons, will the Minister give us the updated number of prison places it will require and where they will be provided?
I congratulate my hon. Friend the Member for Rotherham (Sarah Champion) on her proposals that became Lords amendments 73 and 143, which tackle child exploitation. She has championed those changes since the Bill’s Committee stage in the Commons. It is a testimony to the campaign that she has run and to the parliamentary inquiry she led alongside Barnardo’s that the Government have accepted her amendments and included them in the Bill. I also welcome Lords amendments 70 and 71, which relate to the creation of a new offence to tackle the increasing problem of so-called revenge porn.
The Lords amendments that relate to personal injury and fundamental dishonesty are very flawed. They will require a court to dismiss in its entirety any personal injury claim when it is satisfied that the claimant has been fundamentally dishonest, unless it would cause substantial injustice to the claimant so to do. Last Wednesday, I spoke at the Association of Personal Injury Lawyers’ autumn conference, where I heard the concern that, once again, the Government are stacking the deck in favour of defendant insurers. On these proposals, APIL commented that
“there is no provision in this clause for the defence to be dismissed. The rule of law demands a level playing field”.
It stated that the clause
“tilts that playing field firmly in favour of defendants and their insurers who pay compensation to injured people.”
It might be more appropriate to have a criminal standard of proof when questions of fundamental dishonesty are at issue.
There are minor changes on the new sentencing scheme for serious offences and to allow the President of the Supreme Court to report to Parliament on matters that concern that Court and its jurisdictions—those, we approve. There is also a large number of technical amendments. As I said, those are uncontentious.
The Bill has been going through the two Houses for almost a year and there are some things that we welcome either for technical or policy reasons, but there are a number of issues, which we debated earlier this evening, on which we are fundamentally at odds with the Government, principally in relation to secure colleges and judicial review. Any impartial observer would say that whatever the merits or demerits of the Bill, the way it has been presented has been somewhat chaotic. It is not good practice to begin with a moderately sized Bill and have to pack it with additional amendments throughout Committee, Report and Third Reading in both Houses, and on that basis it is perhaps not surprising that the other place has found so much to criticise.
Lords amendments 70 to 72, 116, 118, 126 and 142 will make posting revenge porn a criminal offence, and I rise to support them. I have been campaigning on behalf of women who have contacted me to get a change in the law to make posting revenge pornography a crime, and today we have a chance to make a change that will literally transform the future for many people in our country. Nude or sexually explicit images taken as part of a private relationship and always intended to be private should stay private. People should expect better treatment under the law, and the amendments would ensure that that is the case in future.
The seemingly growing industry of revenge pornography, where images are posted for all to see, is completely unacceptable in our country and the law must reflect that. The current mishmash of legislation does not provide adequate protection. The posting of such images is often a one-off and therefore not subject to harassment legislation, or an image could be deemed not to be grossly offensive and therefore not subject to the Communications Act 2003 or the Malicious Communications Act 1988. There is therefore a need for a new law, and the Bill provides that opportunity.
I pay tribute to the Crown Prosecution Service which has attempted to provide better guidance in this area. However, as the police made clear in evidence sessions on revenge pornography with the Lords Bill Committee held during the summer, it is not necessarily against the law to post such pictures online. The amendment to the Criminal Justice and Courts Bill will close that loophole and provide comfort to hundreds or perhaps even thousands of men and women in this country who have had nude or sexually explicit images of them posted without their permission.
The law must keep up to date with the ever-evolving changes and challenges thrown down to us by the internet and digital technology. What is illegal offline is illegal online, but the impact of having a nude or sexually explicit image posted on the internet for thousands or even millions of people to see is entirely different from the impact of a similar image being distributed offline, and I believe that the law should reflect that. We need the law to keep pace with the internet, and I commend the Minister for listening to the arguments and being prepared to take action.
There are those who have said that a new law is not needed. Some have gone so far as to say to me that if a woman has a nude or sexually explicit photo taken in private, she has no right to expect protection under the law if that image is made public without her permission; that in some ways it is as if she was “asking for it”. I completely reject that argument as, I hope, will every Member of the House. The law needs to protect men and women and to send a clear message to the perpetrators of these heinous acts that their actions are not tolerated by this society or in criminal law.
I pay tribute to the work of Baroness Trish Morris and Elizabeth Berridge in the other place for working with me, and for making the case so powerfully and so successfully to enable us to debate these amendments today. I also pay tribute to Women’s Aid, the Safer Internet Centre, Ban Revenge Porn, and many others who have written to me in support of the amendments over the past six months. I thank the ministerial team and their officials for listening to the arguments and for acting, and I urge Members across the House to support the amendments.
If images are posted online, victims want them to be taken down quickly. Protocols put in place by internet service providers and social media in relation to child abuse images prove beyond doubt that the industry can, through its own actions, come together to remove illegal images effectively and swiftly. Good progress on child abuse has been made by the industry, working with the Child Exploitation and Online Protection Centre and other law enforcement agencies. The Minister perhaps needs to look at that work as a template for the sort of action the industry needs to take on the issue of revenge pornography. We need an industry-wide code of practice for removing revenge pornography to ensure that people have certainty that action will be taken.
The incidence of sexting among under-18s is now put as high as 20%, so the volume of potential revenge porn images in the future is alarming. Indeed, one in five reports from industry received by CEOP relates to self-generated indecent images of people under the age of 18. What will the Government do to put a stop to the already illegal practice of sending nude images of under-18s through mobile phones and then uploading them on to websites? This seems to be becoming increasingly accepted as part of society today, but it should not be. It is illegal and the Government need to act to stop this ticking time bomb of images that could haunt the next generation of people into adulthood.
Victims want help. They want an industry-wide reporting regime. They want help to be available. The Safer Internet Centre, which was established to support professionals who work with children, is now receiving calls from adults affected by revenge pornography, as they have nowhere else to turn to. In September, I met the UK Council for Child Internet Safety, the industry board that looks at these issues. I set out my concerns and asked the industry to take action. I asked for there to be an industry-standard reporting mechanism, an industry-standard response time for taking down illegal images of adults and support for victims through a helpline. This sort of industry-wide approach is what we should all expect from a mature multinational sector of our economy. We should not expect the burden of removing illegal images from commercial websites to be solely the responsibility of the police—the industry has an obligation to act too. If websites are hosted in more obscure countries, splash pages should be used to block illegal pornography images from being viewed in the UK in exactly the same way as they have been used to block child abuse images. It is a tried and tested methodology that can address this problem. I look forward to the Minister confirming today how he can handle the logistics in the future, working of course with other ministerial colleagues in other Departments.
I applaud the Government for acting when some were resistant. The Ministers have shown foresight and their actions will be warmly welcomed by those who have had to endure the appalling consequences of revenge pornography being posted online without their consent. On behalf of all those women—and the men affected, too—who have contacted me, I thank the Ministers for their work. I hope that in their response today they are able to provide some reassurance on the questions I have posed.
I, too, would like to speak to amendment 70. I will not detain the House for too long, as some of the points have already been raised. I called for this amendment when the Bill was going through this House and in the Queen’s Speech. It was very helpful after that to get the support of the right hon. Member for Basingstoke (Maria Miller) in her Westminster Hall debate.
There is a gap in the law that we are closing. It is surprising that, while there are many laws that touch on the issue of revenge porn, none of them quite tackles the essential issue. People were being harmed and a clear wrong was being done, but nothing could be done because there was a hole in the law. I am therefore delighted that the Government accepted the case. There has been substantial debate in the other place and I pay particular tribute to my colleagues Baroness Grender, Baroness Brinton, Baroness Barker and Lord Marks who tabled amendments in the other place. Between us, we have managed to get the Government to work out the amendments.
I pay tribute to the victims. I have spoken to many of them, but in particular I pay tribute to Hannah Thompson who has played a very key role in speaking out publicly. That was a very brave thing to do about something that feels very shaming. We should remember her work and pay tribute to her. She will protect many people in the future. The psychological trauma can be huge, as the right hon. Lady has already said. We have seen people face the shame—the sense they did something wrong—when it was someone else who behaved badly. People have lost confidence, they have lost their jobs and, in some cases around the world, they have committed suicide. I therefore welcome the Government’s steps to make this a new offence. It is absolutely the right thing to do. It sends a message that revenge porn should not be tolerated and people should not be able to share these intimate images, entrusted to them, and expect their actions to be completely unpunishable.
That will not be enough, however. Although the right hon. Lady spoke about automatic processes to filter these things out, there will be challenges. The work of the Internet Watch Foundation—I declare an interest as one of its champions—on child abuse images is fantastic, but it cannot be directly mapped on to images of revenge porn, because the images themselves are not the issue; it is about intent and consent. It is hard to distinguish automatically between an image shared voluntarily, which we should not be criminalising if the person is over 18, and an image shared involuntarily, which is the issue that the amendment would tackle. It is not as easy as in the case of child abuse images—not that that is trivial or easy either.
The right hon. Lady is absolutely right about there being scope for data-matching images, and there is some nice work being done on technologies for hashing an image so that it can be identified, but it will be harder than in the case of child abuse images.
As I said in an intervention on the Minister, we need a substantial improvement in education not just around this offence—ideally we want a situation where no one is ever prosecuted under the offence because the message has been sent so clearly that people simply do not share intimate images of former partners or whomever—but on the much broader issue of sex and relationships education. For me, this is fundamentally an issue not about revenge or pornography—the term “revenge porn” is not ideal—but about consent. We need a system where, particularly through education, we get people to understand what consent is about: what can be agreed to and what cannot be agreed. Whether it is sexual assault and physical violence, emotional assault or the taking and spreading of such images, it should be about whether consent has been given. That is the education I would like to see. The Government should have compulsory sex and relationships education for everybody at school to tackle these issues of consent, and they should do what they can to ensure society changes so that we have that focus on consent. I welcome the amendments very much, and I am grateful the Government have agreed to them.
Very quickly, amendment 73 was led by the hon. Member for Rotherham (Sarah Champion), who did a fantastic job. I had the privilege of co-sponsoring the amendments, but she did the work, and I am not in any sense trying to claim credit. The amendment will make a big difference to grooming. Her approach to the amendments—working constructively with Ministers, discussing the issues, not trying to play party politics, but making the case sensibly and pragmatically—has delivered her success, and she should be very proud of getting the law changed to protect young people. Perhaps there is a lesson there for other right hon. and hon. Members about how to get the law changed.
I thank all Members who have contributed to this wide-ranging and considered debate; the number of points raised confirms the importance of the amendments we have made during the Bill’s passage. As I set out, the Bill represents the next stage of our reforms to deliver a cost-effective system in which the public can have real confidence. The amendments in the other place have advanced and improved the Bill, and I thank its Members for their continued scrutiny.
Hon. Members have raised several issues that I shall address as best I can in the time left. The hon. Member for Hammersmith (Mr Slaughter) touched on the issue of recall adjudicators. He will be aware that the Government decided to legislate now because of the Supreme Court judgment in the case of Whiston, which was handed down on 2 July and so only recently opened the door to an alternative mechanism that does not require determinate sentence recall cases to be reviewed by a court-like body. I am of course conscious that the change has been brought forward at a late stage in the Bill’s progress, but it was necessary for us to use the opportunity that the Whiston judgment has afforded us.
As I said earlier, once the details of the new recall adjudicator model have been fully worked up, it will be possible to say more about how it will operate and what the expected costs and benefits will be compared with the current system. We will need to work closely with the Parole Board and others to ensure that any new system achieves what is intended. I will be happy to share further information with Parliament as and when it is available. There will also be an opportunity for Parliament to scrutinise the procedural rules produced by the Secretary of State, which will set out the procedures that recall adjudicators will be required to follow.
Individual policy impact assessments have been published where the amendments made to the Bill in the other place would lead to an impact of £5 million a year or more on the public sector. These include impact assessments for recall adjudicators and provisions that prohibit the offering of inducements. On the equality impact assessment, we did indeed consider the impact of the proposals ahead of the introduction of the relevant clauses, in accordance with the Ministry of Justice’s duties under the Equality Act 2010.
The hon. Member for Hammersmith asked about the impact of the Bill on prison places. I can tell him that the Government are committed always to have enough prison places to allow us to provide capacity for those sent to us by the courts, and we have indeed considered the impacts carefully.
My right hon. Friend the Member for Basingstoke (Maria Miller) spoke powerfully about the part that she and others have played in bringing the issue of revenge pornography to the House. I want to put on record my gratitude to her and my hon. Friend the Member for Cambridge (Dr Huppert) for what they have done to persuade the Government to take action on this issue. Parliament needs to be relevant. It needs to deal with the issues presented to us, and this is a good example of Parliament and the Government doing exactly that. I listened carefully to the important point she made about the data matching of images, which is one that the Government will certainly bear in mind.
My right hon. Friend is also completely right about the social media and internet industry playing its part to deal with the terrible crime of revenge pornography. We cannot just expect the law to provide the complete solution; we need everyone to play their part. We need education and we need the industry to do its part as well.
Will my hon. Friend join me in urging the industry to take action and put in place a code of practice to ensure that those affected by this dreadful crime know where to go, who to report the offence to and how long it will be before the images are taken down? People want certainty; they do not want the uncertainty that currently prevails.
Yet again, my right hon. Friend speaks very wisely. I agree with the challenge she has put to the industry. She is right to do that and I hope it will pay attention to the debate in this House. I am with her in the demands that she has quite properly placed on the industry in expecting it to fulfil its proper social responsibility in this regard. My hon. Friend the Member for Cambridge talked about the important role that victims have played, and I think he did the House a service by putting on record the role that victims have played in describing the terrible ordeal that they have been through. That has certainly helped inform our debate.
These amendments address a number of issues that have been brought to our attention by Members in the other place as well as those brought forward by the Government. I firmly believe that they enhance and improve the Bill, and I am proud to say that we are tackling the appalling behaviour known as revenge pornography, which has featured considerably in tonight’s debate. We are also addressing an important lacuna in the reporting restriction framework and introducing recall adjudicators to go some way to alleviate the pressure on the Parole Board. These and other measures are not only critical, but absolutely necessary. I urge the House to support them.
Lords amendment 1 agreed to.
Remaining Lords amendments agreed to, with Commons financial privileges waived in respect of Lords amendments 5 to 34, 75, 123 and 124
Ordered, That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments.
That Dr Julian Huppert, Andrew Selous, Mr Andy Slaughter, Karl Turner, and Mr Ben Wallace be members of the Committee;
That Andrew Selous be the Chair of the Committee;
That three be the quorum of the Committee.
That the Committee do withdraw immediately.—(Damian Hinds.)
Committee to withdraw immediately; reasons to be reported and communicated to the Lords.