House of Lords
Monday, 30 June 2014.
Prayers—read by the Lord Bishop of Oxford.
Health: Multiple Sclerosis
To ask Her Majesty’s Government what plans they have to introduce new treatment for relapsing-remitting multiple sclerosis.
My Lords, it is important that people are able to access the innovative and effective new treatments they need. Many thousands of people in England with multiple sclerosis have benefited from the medicines recommended by the National Institute for Health and Care Excellence or covered by the MS risk-sharing scheme.
My Lords, I thank the Minister for that reply. People with multiple sclerosis consider that specialist MS nurses are the key health professionals for providing responsive, person-centred, co-ordinated and integrated care. The latest MS Trust report assesses the provision of MS nurses across the UK and considers that there is a shortage of around 200, and that more specialist nurses are required to ensure that everyone has access to a specialist nurse. The new draft NICE guidelines offer only limited support for this specialist role. Given the scarcity of neurologists in the UK, is it not important that this chain of nurses is in place to ensure that emergencies do not develop, which of course costs the National Health Service very much more? Can my noble friend assure me that he will take action to ensure the continuance of MS nurses?
My Lords, I am pleased to say that the number of specialist nurses for multiple sclerosis in the UK has risen from 80 in 2002 to 245 currently. I hope that my noble friend will agree with our view that local healthcare organisations, given their knowledge of the healthcare needs of their local populations, are the people best placed to determine the workforce needed to deliver safe and effective patient care within the available resources. However, it is of interest that NHS England’s service specification for specialised neurology does specify that nurse specialists should be involved in the care of people with multiple sclerosis.
My Lords, 11 drugs are now available for remitting and relapsing multiple sclerosis, three or four of which have been approved only in the past two or three months, which is great news. Is there any chance that these new drugs will be included in the risk-sharing initiative with industry?
My Lords, I think that the answer is almost certainly no because the risk-sharing scheme initiated under the previous Government is quite complex to administer and we would need to be persuaded that the administrative burdens associated with it were worth while. Now that we have the NICE process, it is probably best that NICE should look at these drugs in the context of its new clinical guideline, which is what the stakeholder groups thought was preferable.
My Lords, I declare a personal, though not a financial, interest in this Question. My noble friend may be aware that there is a drug called benztropine which has been approved for the past 10 years for use in Parkinson’s patients. We know that it is not carcinogenic, mutagenic, teratogenic or any other genic—it is safe. US researchers have just discovered that it seems to completely restore the myelin sheath on the spinal cord, at least in laboratory animals. This is of enormous interest to MS patients. Will my noble friend add benztropine to the list of medicines for urgent consideration by his early access to medicines scheme?
My Lords, we are keen to see candidates being proposed for the early access to medicines scheme. If a body of evidence suggests that benztropine could qualify for designation as a promising innovative medicine—a PIM—the Medicines and Healthcare products Regulatory Agency stands ready to consider such evidence. However, it is for the manufacturer of the drug, not the Government, to decide whether it wishes to propose the drug as a candidate for the scheme.
My Lords, three drugs are currently awaiting approval by NICE, some of which have been turned down by the European Medicines Agency because of their side effects. To what extent does NICE take that factor into account in its own decision-making process?
My noble friend will know that NICE looks at the clinical effectiveness of a drug alongside its cost effectiveness. The cost-effectiveness equation will naturally include consideration of unpleasant side-effects. The advice that it issues will reflect the evidence that it has from clinicians on that matter. It will then be for clinicians to decide whether the risk-benefit ratio is appropriate for particular patients.
My Lords, when considering the Care Act we were very concerned to ensure that care and support plans for social care users included contingency planning for people who have fluctuating conditions such as MS and rheumatoid arthritis, where support needs can vary from week to week and day to day. What mechanisms are being put in place to ensure the provision of the flexible and comprehensive care plans that are needed?
The noble Baroness is right that care plans have to be tailored to each individual patient. For those with serious neurological conditions, that is as important as for anyone. I do not have up-to-date information about what work NHS England is doing at the moment on this, but I am happy to write to her on the subject.
My Lords, how widely shared are these new medications? For instance, I know that some cancer medications are available to patients in England but not to patients in Wales. How widely is this information shared so that everyone can benefit, even if we are under the devolved Administrations?
My noble friend will know that I cannot speak for the devolved Administrations, who have complete autonomy in their healthcare policies. I can say that a number of drugs have been recommended for use on the NHS for MS patients, including Tysabri, Gilenya, Aubagio and Lemtrada. However, it is ultimately for the devolved Administrations to decide whether they wish to have the same set of rules in place as we do in England.
To ask Her Majesty’s Government what assessment they have made of the link between busking and crime and disorder; and what plans they have to issue revised guidance on the use of the Metropolitan Police Act 1839 and the Police and Criminal Evidence Act 1984 in respect of busking.
My Lords, no assessment has been made, but the Government are clear that appropriate busking can enrich a community’s quality of life and generate a positive atmosphere that can be enjoyed by many people. The police and local councils have powers available to them where there is a risk of crime or disorder or complaints of anti-social behaviour are made.
My Lords, I thank my noble friend for that response, which I very much appreciate. The arrest of the King’s Parade, the winners of the mayor’s busking prize, under an archaic law by eight policemen in Leicester Square only too clearly illustrates the need for a proper, comprehensive policy on busking for London. Will my noble friend refute the alleged link between busking and crime and will she work with her colleagues and with the mayor’s busking task force to develop a coherent approach to busking across London?
My Lords, unfortunately I have not been invited on to the mayor’s busking task force and I cannot comment on individual cases. The particular case that my noble friend refers to is a matter for the Metropolitan Police, but I can say that in areas around Leicester Square, where large groups of people gather, there may be opportunities for pickpockets. However, this must be balanced against the enjoyment that busking inevitably brings.
My Lords, given the itinerant and spontaneous nature of buskers and busking, does the Minister accept that the same guidelines need to be issued nationwide? She might look at Liverpool, which, following constructive talks with the Keep Streets Live campaign, is soon to issue guidelines which will not include a requirement for licences or other draconian measures. That might be a model of interest for the whole country.
I thank the noble Earl for those comments. I do not know about the individual cases, although I do not live far from Liverpool. I understand that licences for buskers are required in only two London authorities, Camden and Hillingdon.
My Lords, I am sure my noble friend is well aware that, in London, busking is very widely supported by a large number of people. The Mayor of London has gone so far as to say that busking is what gives London its joie de vivre—not least, I might add, for those who use the Underground, where a lot of busking takes place. My noble friend Lord Clement-Jones referred to the mayor’s appointment of a busking task force, of which he is a member, which includes representatives of the Metropolitan Police. Can she confirm that one of the jobs of the task force is to suggest ways of dealing with irresponsible busking?
The task force obviously does a very valuable job; I am now intrigued by it and very much look forward to the letter in the post inviting me on to it. There is no difference between the mayor’s view of busking and the Government’s view: where it is appropriate it is widely supported.
Are there any special provisions applicable to, say, aggressive busking on the London Underground?
Any behaviour of an aggressive sort would be dealt with appropriately, whether it involved busking or not.
My Lords, I will not ask my noble friend to comment on the mayor’s talents in this area, but does she think that it is appropriate to criminalise people who are making music? Some of them are young people endeavouring to further their career in music. It is an extraordinarily precarious career, and one where it is difficult to get started.
Buskers are not criminalised. People who behave in a disruptive or harmful way are criminalised, but busking in and of itself is not.
My Lords, will the Government confirm that carol singing will not be reclassified as busking?
My Lords, it depends on the carol singers. If they were being disruptive they might well be.
My Lords, we have a number of candidates today for the busking task force, if perhaps not too many wanting to be buskers themselves. I think the noble Baroness missed one part of the Question asked by the noble Lord, Lord Clement-Jones, which was about the revised guidance that is awaited. The Anti-social Behaviour, Crime and Policing Act 2014 and the 1839 Act are also relied on. When will the new guidance be issued?
My Lords, we have no plans to issue guidance in relation to how the two existing Acts are applied to buskers. However, we have undertaken, as the noble Baroness says, to include reference to busking in the guidance for the new anti-social behaviour powers for use by the police and others. This will be published shortly, in advance of the new powers commencing later in the year.
Does my noble friend agree with me that although we should recognise that buskers are perhaps building their careers, they are also adding to the gaiety of nations? It would be most unpopular were we to consider any banning of busking.
I totally agree with my noble friend.
Does my noble friend know what regulations apply to busking outside the Peers’ entrance of the House of Lords?
No particular licence is required for busking in Westminster. I imagine they are the same as for anywhere else.
Education: Citizenship Studies
To ask Her Majesty’s Government what plans they have to increase the emphasis on citizenship studies in the school curriculum.
My Lords, I am delighted to be able to say that this Government have retained citizenship education as part of the new national curriculum. From September this year it includes an improved programme of study for citizenship education at key stages 3 and 4. This new programme of study will equip young people with the skills and knowledge to explore a range of issues and help them to take their place in society as responsible citizens.
My Lords, I am grateful for that reply. Can my noble friend assure me that citizenship will have a central place in the curriculum, particularly in the last two or three years before children leave school? Will he ensure that, whether it is busking or otherwise, they have the opportunity for community service during that period? Will he give further thought to the idea that I have put to him on many occasions that there should be a citizenship ceremony when pupils leave school so that they can acknowledge publicly their responsibilities as well as their rights?
I absolutely agree with the noble Lord that citizenship is important and I know that he is a passionate supporter of it. Many schools have ceremonies for awards and the new citizenship programme of study requires active participation. I would certainly encourage schools to consider adopting the noble Lord’s idea if they do not already reward good citizenship. Certainly it will help them demonstrate that they are promoting British values. However, it is not this Government’s style to mandate such a thing. In addition, the Government’s National Citizen Service for 16 and 17 year-olds gives young people a chance to develop skills such as volunteering and social action projects. I was delighted to see that the IPPR report published at the weekend was so supportive of the National Citizen Service and that we seem to have achieved cross-party support for it.
My Lords, does the Minister agree that a good way of consolidating citizenship education would be to extend to young people at the age of 16 the right to vote so that they can apply at the ballot box what they have learnt and, it is to be hoped, get into the habit of voting?
I do not agree with the noble Baroness on that.
My Lords, do citizenship classes include the proper teaching and understanding of not only how Westminster works but how local government, the United Nations and the EU work? In my time at school that was a part of it.
They are supposed to include democracy, the electoral system, government, human rights and international law.
My Lords, citizenship generally suggests teaching conforming behaviour, which is important. However, does the Minister agree that the teaching of conforming behaviour is not quite the same and needs to include the teaching of ethical values of right, wrong and responsibility, which can sometimes— and sometimes should—challenge conforming behaviour?
I agree entirely with the noble Lord. I would hope that in a school with a proper syllabus on this these were not contradictory. Certainly Ofsted should look at this in inspecting spiritual, moral, social and cultural development.
My Lords, too many of our young people do not vote, which is understandable when they are not taught about our political system and our system of governance. The Minister mentioned citizenship lessons but the fact of the matter is that they are not compulsory. As the noble Lord, Lord Cormack, said, they should be a compulsory element in all schools including academies and free schools. What plans does the Minister have to ensure that there is a fully qualified citizenship teacher in every school?
I am a little confused about the Labour Party’s attitude on compulsory subjects in the national curriculum. I thought that its study group had proposed that all schools should be free not to teach the national curriculum, but I will not attempt to keep up with this flip-flopping. We do not agree that it should be mandatory. A lot of people want to have subjects made mandatory in the curriculum but there is not room. Schools must teach citizenship at key stages 3 and 4. They must also teach about spiritual, moral, cultural and social responsibility and British values. The curriculum includes all the institutions to which the noble Baroness referred.
My Lords, I declare an interest as the founder and president of the Citizenship Foundation. I say to my noble friend that while he paints a very rosy picture of citizenship, at the moment less than 2% of pupils take citizenship education at GCSE. The free schools and academies do not have to teach it at all and Ofsted does not extend to citizenship in schools, while the Government have withdrawn bursaries for young teacher trainers to teach citizenship education. In the light of the statistics and the general sense of gloom in the citizenship community at the moment, will my noble friend please go back to his Minister and seek to do something about what has happened to citizenship education over the past two or three years?
Ofsted reported last year that it found that in primary schools citizenship was “thriving” and that in secondary schools the quality of citizenship education was stronger than in its 2010 survey. It also found that head teachers recognised the rich contribution the subject makes to pupils’ learning, their personal development and the ethos of the school. We have substantially improved the citizenship curriculum from the previous, rather issues-based, syllabus and we are now enhancing the requirement to teach about British institutions and values.
Will my noble friend take into account the enormous change that has come over our society since the middle of the last century, at which stage the lifeblood of the country flowed through the churches, cathedrals, mosques, meeting houses, temples and synagogues? The actual morality that was the underpinning fabric of good citizenship could not escape people because it was put before their eyes every week. Now that that has gone, will my noble friend talk to his colleagues in other departments to ensure that there is a link between citizenship and practical experience of the teaching of all-faith religious knowledge? That way, people will understand what it is we want them to do.
My noble friend makes a very good point. I believe that all schools should teach about all religions and about respect for all religions. However, I will take his point back.
My Lords, does the Minister agree that one area that could be encouraged is parenting? I do not just mean good relationships with your own parents but what your future children are going to need, by way of skills, to be good parents themselves.
I agree entirely with the noble Baroness. Parenting skills in this country are, in many cases, sadly lacking but it is not easy to dictate to parents, even young parents, how to do that. However, all good schools certainly seek to engage with their parents not just about their children’s education but, bluntly, to improve the education of the parents themselves.
My Lords, in making rather sweeping asides about the Labour Party’s policy, will the Minister please accept that there is a world of difference between laying down what children ought to learn as part of the curriculum and getting into the dangerous area of politicians deciding which books to teach the curriculum from?
I would agree entirely with the noble Baroness except that I think it is a sad reflection on a country with as rich a literary history as we have that more than 90% of essays written for GSCE English literature are on three books.
My Lords, is not one of the most important forms of citizenship being able to save your fellow citizens’ lives? Why, then, do only 21% of schools provide training in first aid—it is even fewer in CPR techniques—given that there are 60,000 events of cardiac arrest around the country as a whole? Why not include that in the national curriculum both to encourage the better health of individuals and to give the young people concerned greater reliance and greater confidence?
Of course first aid is very important, and schools are free to teach that. Again, we have another bid for what is mandated in the national curriculum. We have to have some priorities, but of course health and safety is very important.
Disabled Students’ Allowance
To ask Her Majesty’s Government how the assessment of complex needs for dyslexics will be achieved under the new Disabled Students’ Allowance arrangements.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I draw the House’s attention to my declared interests.
My Lords, discussions are under way with stakeholders to inform the Disabled Students’ Allowance guidance for the autumn. Our current intention is that students with dyslexia, alongside other disabled students, will continue to undertake an assessment with a study needs assessor. The term “complex” in the Question does not relate to the nature of the student’s disability; rather, it relates to the range of support needed to address the barriers to their learning.
I thank my noble friend for that reply. Does he not accept that that seems to be a change from the announcement that complex needs would be the criterion? If this is going to change as we move into a reformed situation, when can we expect to get a reliable and useful criterion for this assessment for entrants in 2015?
As my noble friend may well know, we routinely engage with stakeholders on the provision of support for all disabled students, and that dialogue will continue. We are also currently working on the equality impact assessment, which will be taken into consideration. Indeed, the findings of this consultation will be looked at in that light and before we lay down regulations on this matter.
Will the Minister say whether the Government will commit to publishing an assessment of the impact of the changes, given the detrimental effect that they could have on disabled students with all conditions, including dyslexia and autism spectrum disorder?
I have already alluded to the equality impact assessment, which will form part and parcel of the regulations that we will lay before Parliament in the autumn and which will be open to debate. The discussion, I am sure, will take place at that time, and I look forward to the noble Baroness’s contributions.
My Lords, is my noble friend aware that in order to make use of some of the assistive technology programs, one needs quite a high-functioning computer? Is any financial assistance going to be available to students who do not qualify for a computer to enable them to buy the standard of computer that they need in order to run the programs?
My noble friend may well be aware that the focus on DSA expenditure will be on the most complex and acute needs. DSA expenditure generally has increased—from £87.8 million in 2009-10 to £125.1 million—so a review of DSA expenditure, as technology advances have been made, is long overdue; it has been 25 years since we last looked at it. Of course, we will look at each case, including specialist requirements and complex cases, and where it is established that a case is complex, students will be supported.
My Lords, is the Minister aware that research at Edinburgh University has found that disabled students who claim DSA at present have lower drop-out rates than disabled students who do not claim the allowance and non-disabled students? Is it true that the changes that are proposed will in effect mean that the money that is currently paid to individual students through personal budgets is to be transferred, with no additional funding, to the universities themselves? Does that not run against current government policy in these matters?
I have already stated the Government’s position on the need for sustainability of the DSA. The noble Lord is quite right to point out that the expenditure to higher education institutions is being rebalanced, and this is to ensure that within the realms of the Equality Act 2010 they, too, step up to the mark. Indeed, many institutions have. This is all about ensuring that in the existing conditions the money is spent in a focused way on the students who most need it, and that we balance what we spend on the DSA with what the universities and higher education institutions should spend themselves.
My Lords, I declare an interest in that my younger son has just graduated successfully and has benefited from the computer and software for someone with dyslexia. People with dyslexia often flourish later in the educational process as they gain their coping mechanisms. Does this not mean that it is even more important to make sure that this support is fully in place, not least at university?
The right reverend Prelate makes an important point, and I congratulate him on his son’s successful graduation. The point he makes is perfectly valid. I have already mentioned that we will be looking at a full equality impact assessment before laying the regulations. I am sure that part and parcel of that process, and the discussion around those regulations, will be to cover the points that the right reverend Prelate has made.
My Lords, in answer to the supplementary of my noble friend Lord Addington, the Minister referred to the consultations that are going on in order to produce and agree criteria. Given that the Prison Service is where the highest concentration of dyslexia in the United Kingdom exists, what input is there into those consultations from the Prison Service and from contributing voluntary sector workers such as the Prisoners’ Education Trust?
My noble friend has asked quite a specific question. I am fully aware, as someone who covers in part the justice brief, of the emphasis the Government are placing on the rehabilitation of prisoners. In terms of his specific question, however, I will write to him.
Co-operative and Community Benefit Societies and Credit Unions Act 2010 (Consequential Amendments) Regulations 2014
Motion to Approve
That the draft regulations laid before the House on 14 May be approved.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 24 June
Legislative Reform (Clinical Commissioning Groups) Order 2014
Motion to Approve
That the draft order laid before the House on 13 March be approved.
Relevant document: 26th Report, Session 2013-14, from the Regulatory Reform Committee. Considered in Grand Committee on 24 June.
Criminal Justice and Courts Bill
That the Bill be read a second time.
My Lords, this is a significant and far-reaching Bill that has at its heart a vision for a stronger and fairer justice system. It introduces steps to toughen our approach to the most serious and repeat offenders, ensuring that penalties reflect the seriousness of the crimes committed and providing greater certainty for victims. It seeks to modernise our court processes and rebalance the judicial review system to reduce the delays caused by inappropriate or unmeritorious claims.
Our system of justice is regarded with enormous respect throughout the world. The quality of our judiciary and our respect for the rule of law are significant factors in attracting foreign investment to our shores. The Government are not, however, complacent. We must constantly examine our criminal and civil justice systems, not simply to respond to the latest headline but to ensure that they are adapting to the modern world.
In the field of criminal justice there is a need to identify the most serious offences and to make sure that our judges have adequate powers to deal with offenders. Equally we are absolutely determined to make a real impact on reoffending by our reforms, which will transform rehabilitation. Your Lordships’ House has enabled, for the first time, offenders who have received short sentences to be properly prepared for release and properly supported when they are released. This way, they will be better able to cope with life on the outside and will be much less likely to offend.
Another major issue is in the provision of education for young offenders. The need to provide this lies at the very heart of our plans in the Bill to introduce secure colleges to give young offenders real educational opportunities, often for the first time in their lives.
Improvements in our civil law system are making a difference. In Part 2 of the LASPO Act 2012, we implemented recommendations suggested by Sir Rupert Jackson to rebalance the system and deal with the consequences of the introduction of conditional fee agreements, which benefitted no one but lawyers and the organisations that fed on the system. It will be a little time before we can assess the full effect of our reforms, but the signs are hopeful.
One of the least attractive aspects of our system was the growth of claims management companies. A claims management regulation unit, which I have visited, has been in place since 2007, providing really effective protection to consumers and closely reining in unacceptable practices. The unit has the power to suspend, vary or cancel licences. Furthermore, I announced last Friday that the unit will be able to impose substantial fines on companies that break the rules. I am glad to tell your Lordships that the number of these companies is reducing, and reducing quickly.
These are just some of the changes that we are making. This Bill is part of the narrative. Criminal justice provisions in Part 1 of the Bill will help to keep our communities safe and secure, and ensure that offenders face the consequences of their crimes. Provisions in this part of the Bill place restrictions on the use of simple cautions on a statutory footing to ensure that serious and repeat offenders are treated consistently and are punished appropriately.
Unless there are exceptional circumstances, offenders will no longer receive a caution for the most serious offences, such as rape and robbery. For other offences, we are limiting the repeated use of cautions for the same, or similar, offences committed within a two-year period. We are ensuring that for all dangerous offenders and those who commit offences of particular concern, the Parole Board will consider their risk before early release can be authorised. This will improve public protection and encourage offenders to take responsibility for their own rehabilitation.
We have also made provision to ensure that the courts have sufficient tools to deal with offences that can have an enormous impact on victims and our communities. That is why we have increased the penalty for causing death while driving while disqualified, and introduced a new offence of causing serious injury while driving while disqualified. It is why we are adding further terrorism offences to the enhanced dangerous offender sentencing scheme, as well as increasing maximum penalties to life for offences where that is not already the case.
It is right that we have the necessary tools to monitor offenders on licence and to deal with breaches of licence conditions. The Bill introduces an additional “recall and release” test for determinate sentence prisoners, requiring consideration of whether, if released, an offender would be highly likely to commit further breaches of their licence, including further offending. This seeks to end the continuous cycle of fixed-term recalls and automatic release for offenders who persistently and wilfully breach their licence conditions.
We are also taking powers to impose mandatory location monitoring of offenders released on licence. The use of innovative new technology will help to deter reoffending, allow better monitoring of whereabouts and compliance with other licence conditions, as well as assist with crime detection.
It is sometimes the case that issues of national concern highlight the need for our laws to evolve to tackle different types of behaviour. The horrifying events at Mid-Staffordshire NHS Foundation Trust, and the review into the safety of patients in England that followed, exposed a gap in legislation as regards ill treatment or wilful neglect of users of health and care services. It was rightly recommended that this should be rectified. The Bill closes that gap by creating new criminal offences to deal with these completely unacceptable behaviours.
High-profile failings in police conduct have dominated headlines in recent years, most notably following the revelations about the handling of the Stephen Lawrence investigation. The existing common-law offence of misconduct in public office dates back several hundred years and is not specific either to cases of corruption or to police officers. It is not always well suited to dealing with or deterring the pattern of corruption in today’s information age, so we are introducing the new police corruption offence, which will ensure that the small number of officers who are corrupt are properly punished and face the appropriate penalty for their crimes. However, we also recognise the special role that police and prison officers play in routinely coming into contact with dangerous offenders in difficult situations. That is why we are raising the starting point for sentencing a murderer of a police or prison officer in the course of their duty to a whole-life order.
Part 2 of the Bill deals with the critical matter of youth justice. Under this Government, crime and offending by young people is down, with fewer entering the criminal justice system and ending up in custody. At present we pay around £100,000 a year for a place in youth custody, yet almost 70% go on to reoffend within 12 months. No current youth custodial establishment—young offender institutions, secure training centres and secure children’s homes—is providing good enough outcomes. For young offenders where custody is necessary, we want to make the best use of the opportunity to help to turn their lives around. We need to be better at rehabilitating young offenders.
Secure colleges will have education at their heart, with all other services designed in support of raising educational attainment and tackling offending behaviour. Figures suggest that 86% of young men in young offender institutions have been excluded from school at some point, and more than half of 15 to 17 year-olds in YOIs have the literacy and numeracy level expected of a seven to 11 year-old.
Secure colleges will provide the support and skills that young offenders need to stop reoffending and to contribute positively to society in adult life. The Bill establishes the statutory framework for secure colleges, with further detail to be set out in the secure college rules. Operators of secure colleges will be invited to deliver a broad, intensive and engaging curriculum to support and motivate the full range of ages and abilities of young people accommodated in these establishments.
The Government recognise that there are likely to be some detained young people who will continue to require separate specialist accommodation, either on the grounds of their age, acute needs or vulnerability. We are therefore committed to continuing to provide separate specialist accommodation, such as secure children’s homes, for this group of young offenders.
On 9 June my right honourable friend the Lord Chancellor and Secretary of State for Justice informed both Houses that the Ministry of Justice had selected a preferred provider—Wates—to design and build the pathfinder secure college in the east Midlands. Subject to parliamentary approval, if this pathfinder proves effective it will be a model for a future network of secure colleges across England and Wales. I can assure your Lordships that construction will begin only if this Bill receives Royal Assent.
Before this Bill reaches Report, we will launch a public consultation on our plans for secure college rules, which will set out the core requirements to ensure that the establishments operate safely and securely. I will inform the House of the details of this consultation in due course. We also intend to hold a meeting prior to Committee, to which all Peers will be invited, to show in more detail what the plans are, in physical terms, for the pathfinder college.
I hope that all noble Lords will at the very least keep an open mind and not resort to describing these establishments as “fortresses” or “Titan” prisons. Such rhetoric hardly helps in our quest to help some of our most vulnerable young people and is surely not the approach that should be adopted in your Lordships’ House.
This part also makes sure that all 17 year-olds have access to an appropriate adult when they receive a caution, and we are changing the law regarding referral orders to provide greater flexibility and powers for the court when punishing a breach or dealing with further offending.
Part 3 is very much about increasing the efficiency and flexibility of the courts to keep pace with the modern world. At present, much court time is wasted in hearing cases in open court when the defendant fails to attend; the only people present are magistrates and prosecutors. We could make better use of this valuable time elsewhere. This Bill allows one magistrate to deal with low-level regulatory cases away from traditional magistrates’ courtrooms. The types of cases that we are concerned about are the likes of failing to register the new keeper of a vehicle or depositing litter. We are ensuring that the defendant’s right to request a hearing is preserved, as the procedure will apply only when a defendant has either expressly or impliedly waived that right. We are also enabling more cases to bypass the Court of Appeal and go straight to the Supreme Court, again saving valuable court time. I reassure noble and learned Lords from the Supreme Court that that will be only with the consent of the Supreme Court.
The use of the internet has had a profound impact on how we carry out our daily lives, so we are also modernising the law on juror misconduct to bring it into the 21st century. Some of your Lordships might have seen that the Attorney-General has today announced that the Government intend to table an amendment to omit the provisions to update the law of contempt of court as it relates to publications. The measures were intended to provide clarity, to allow the media time to take down material, and to provide a defence until that point. The media, however, raised strong objections. Since the existing law gives protection for the integrity of court proceedings, we have decided not to pursue these measures.
This part also introduces a charge, payable by adult offenders on conviction, to contribute towards to the costs of the criminal courts. We already recognise that those who bring cases in the family and civil courts should bear some of the court costs in those jurisdictions. These provisions make that a reality in the criminal sphere, so that those who give rise to the costs of the criminal courts share the burden of those costs, rather than it solely being the burden of the taxpayer. Repayments can be set at an affordable rate, and we are encouraging rehabilitation by allowing the charge to be remitted after a certain period without reoffending provided that the offender has also taken reasonable steps to pay off the charge. To ensure that we have maximum flexibility, we are also extending the powers of fines officers to vary repayment of financial impositions after default, as well as prior to default.
Finally, I turn to Part 4, on the matter of judicial review, which is one of the most important means by which government and other public bodies can be held legally accountable for their decisions and actions. However, judicial review has grown significantly over recent years, and while there are many important and valuable judicial review cases brought every year there are also too many that are not. We have taken a detailed look at judicial review and concluded that there is a case for some proportionate and common-sense reform.
Part 4 will provide a better balance, ensuring that judicial review continues as a check on the Executive while limiting the potential to abuse it for collateral purposes, such as delay. The clauses in Part 4 deliver two things. The first is a much needed rebalancing of the financial risk of bringing or driving a weak judicial review. We think it right that those who bring or choose to become involved in a judicial review should face their fair share of the financial risk that entails, rather than expecting a subsidy from the body they are challenging. This is the position in other civil litigation.
We will therefore ensure that the courts have the information they need to use their existing powers to reach through, say, a shell company when awarding costs against an unsuccessful party. That does not mean that everyone who donates to a campaign will be at risk, but it is right that there should be a proportionate liability for those who in reality control, guide and stand to benefit from a judicial review.
Is it not evident that judicial review will be enormously affected by this and that it will be beyond the scope of people to pay? In other words, it will become the province of the rich and not of the poor.
My Lords, we do not think so. The argument over legal aid is a debate that we have already had in your Lordships’ House. It is the Government’s view that the changes in the legal aid provisions were an entirely proportionate and sensible approach to legal aid, given the scarce resources that are available. As to the availability generally of judicial review, the Government are concerned to ensure that it remains a realistic remedy, but nevertheless that appropriate modifications are made. We will scrutinise those modifications during the course of the debate.
We are affirming in statute the court’s ability to make orders protecting an unsuccessful claimant from a successful defendant’s costs. But it must be right that such protection, almost invariably at a cost to hard-pressed taxpayers, should be reserved for cases with merit and which concern matters of high public interest.
Those who intervene in a case to make arguments or adduce evidence can certainly add value to the proceedings, but we think it right that they should face the financial consequences of their decision to intervene. However, having listened to arguments in the other place we are persuaded that there may be a case for some modification of the provisions and we look forward to considering possible amendments.
Secondly, Part 4 limits the scope to use minor technicalities as a foundation for a judicial review designed to bring about delay by building on an existing approach taken by the courts. This will bite on claims based on a minor flaw in a process, where the outcome of that process for the applicant was highly unlikely to have been changed by the flaw. Our change will mean that, in those situations, the court should not grant permission to continue, or a remedy.
By taking that approach, other more meritorious judicial reviews, in which it is likely or probable that there would have been a difference, can proceed more quickly, given the freeing up of scarce judicial resources. Where there is any significant doubt in the court’s view over whether a procedural failing would have made a difference to the end result—perhaps the grant of a licence or the positioning of a pedestrian crossing—the clause would of course have no effect. Consequently, this clause will be very far from a “get out of jail free” card for poor administrators. I trust that, through the consideration of the Bill, I will be able to demonstrate these points to the House’s satisfaction. However, I cannot stress too strongly that we are not abolishing judicial review.
The shadow Lord Chancellor in the other place invoked the impending anniversary of Magna Carta and said that the Government were,
“depriving citizens and communities of their rights to challenge power”.—[Official Report, Commons, 17/6/14; col. 1073.]
I am confident that the noble Lord, Lord Beecham, has a rather more secure grasp of legal history—judicial review, as we know, started in the 1970s—and that he and others of your Lordships will accept that acknowledging the value of judicial review does not preclude Parliament carefully scrutinising the extent to which it should be used to frustrate the legitimate exercise of power by a democratically elected body. The Government consider that ours is a balanced package of measures which will ensure that judicial review will continue to operate effectively and appropriately.
The Bill contains a wide range of important proposals to ensure that we deliver a justice system that people can be proud of. It ensures that offenders and claimants take responsibility for their actions and that our laws reflect the 21st century. I feel confident that the great expertise that can be found in your Lordships’ House will be brought to bear on the Bill. I look forward to debating it and benefiting from that expertise. I hope that noble Lords will support the outcomes it seeks to achieve. I commend the Bill to the House. I beg to move.
My Lords, another parliamentary day, another Criminal Justice and Courts Bill. The House will be grateful to the Minister for his comprehensive guided tour of the Bill’s proposals but the reality is that we are presented once again with a veritable pot pourri of legislative proposals, the customary mix of the worthy and the welcome, the half-baked and the harmful. This time, some 16 measures were added to the mix two days before Report and Third Reading in the Commons, with little or no time for debate. Therefore, they arrive here today effectively sight unseen.
Today, a pot pourri merits this dictionary definition:
“A mix of dried petals and spices in a bowl designed to perfume a room”,
but the original French stands for a stew made from different kinds of meat—literally a rotten pot—and too much of this Bill fits the latter description.
There are certainly parts to welcome—for example, the provisions about police corruption, extreme pornography, malicious communications and care worker offences of ill treatment or wilful neglect. However, there are others, notably those dealing with secure colleges and judicial review, which demonstrate the propensity of this Government in general, and this Lord Chancellor in particular, to indulge in grandstanding on issues of crime and justice on the basis of the most tenuous evidence, and with a disturbing determination to curtail judicial discretion.
I will deal later with those matters but, at this stage, will cite two examples of the Government’s cavalier approach. The first is the headline-grabbing proposal, referred to by the Minister this afternoon, to increase the maximum sentence for causing death by dangerous driving while disqualified to 10 years’ imprisonment. It is a serious offence, but one of which only 13 defendants were convicted last year. The second is the claim that the number of cases of judicial review has soared from 4,500 a year to 12,400, which was repeated by the Minister in last Thursday’s Times, whereas almost the entire increase was due to asylum and immigration cases, which are now dealt with under the tribunal system, not by judicial review, thereby reducing the workload and, presumably, therefore, the cost, of the Administrative Court by nearly two-thirds.
A more insidious approach is the trend in criminal law of imposing mandatory sentences, and in judicial review of making it more difficult and potentially much more expensive to challenge the lawfulness of decision-making by the state or its agencies. On these matters, the Joint Committee on Human Rights has been forthright in its criticisms, but the Government, as ever, merely shrug them off.
Part 1 of the Bill, whose objectives of protecting the public we entirely endorse, contains provisions which exemplify the failings that I have mentioned. Thus, Clause 4 will require an under-resourced and overstretched Parole Board to be involved in determining whether prisoners serving extended sentences should be released, as automatic release rules are changed. What proposal do the Government have to provide the Parole Board with the additional resources that it needs to cope with its present workload, let alone that which would flow from the provisions of this Bill?
Clause 6 makes electronic tagging mandatory for offenders released on licence, under regulations to be prescribed by the Secretary of State, despite the lamentable experience of the current tagging system, which is used essentially to check whether curfew or exclusion requirements are complied with. What will be the benefits and the costs of this quantum leap in the application of tagging? Do the Government accept that the code of practice to govern the use of tagging will be subject to parliamentary approval? Will a draft be available for the Committee stage of this Bill, or at least on Report? Clause 7 imposes extra work on the Parole Board in respect of prisoners recalled from release, when what is surely needed is effective supervision of such prisoners. Clause 8 gives the Secretary of State the power to change the test for release after recall by regulation, when this should surely be done by primary legislation.
Part 2 of the Bill deals with young offenders. I will come later to the question of secure colleges, but I welcome Clause 32, which requires the presence of an appropriate adult when a youth caution or youth conditional caution is given to someone under the age of 17. I join the Magistrates’ Association, however, in requesting guidance on the definition of an appropriate adult. Part 3 will allow minor offences to be dealt with it on the papers by a single magistrate—in effect, in chambers—where a defendant has not requested a hearing. My noble friend Lord Ponsonby will speak to this issue, but having only last Friday met magistrates of the Northumbria Bench, I incline to the view of those who say the defendant should have to agree to such a course, where appropriate, after proper advice. After all, not everybody who receives a court communication will be able to understand it. I am also sympathetic to those who say two magistrates should sit on such cases, although perhaps there should be an experiment to see whether there is a satisfactory outcome with a single magistrate. In any event, disposal should be in public, not necessarily in the traditional court room, so that justice can be seen and reported to be done.
A more troubling proposition is contained in Clause 42 in relation to criminal court charges—to which the Minister referred—under which offenders should be made to pay towards the cost of running the courts. This clause is a classic example of the Government’s casual approach to legislation. The requirement is mandatory, when it should, if imposed at all, be discretionary and decided by the judges. There is no impact assessment, either on the offender or the cost of enforcing the system. It ignores the risk that people may plead guilty, at least to the less serious charges, on financial grounds; and ignores both the reality of life for offenders and the system’s present inability to deal with unpaid fines and confiscation orders.
The Prison Reform Trust points out that offenders are twice as likely to have employment problems as the average, four times as likely to have housing problems, 13 times as likely to be homeless, and three and a half times as likely to be in debt. Meanwhile Justice points out that Her Majesty’s Courts and Tribunals Service is owed £2 billion— including £1.3 billion in unenforced confiscation orders—and in 2010 the debt for criminal penalties was £608 million, two-thirds of which had been outstanding for more than 12 months. One might have thought that the Government would give priority to collecting these debts, rather than creating this new provision.
Finally in Part 3, I mention the belated inclusion in Clause 45, no doubt once again at the behest of the Conservative Party’s friends and supporters in the insurance industry, of yet another mandatory requirement, namely that if the court in a civil case is satisfied on the balance of probabilities that a claimant has been “fundamentally dishonest”—whatever that means—in relation to his claim, it must dismiss the claim unless this would cause substantial injustice. Again, this is presumably a moveable feast. Of course, a court can already penalise a claimant in costs if it is satisfied that a claim has been exaggerated but, more to the point, this is an entirely one-sided sanction. A defendant behaving in similar fashion would suffer no penalty, even though such conduct in a personal injury claim could itself add to the claimant’s suffering.
I now turn to the two most controversial elements of the Bill: secure colleges and judicial review. In relation to the former, the Government’s transforming rehabilitation programme appears to have failed. The Secretary of State has reoffended. There is an uncanny similarity between what happened over the probation service in the Offender Rehabilitation Act and this proposal. Once again, the Government are pressing ahead with their policy in advance of parliamentary approval, although at least it has not been left to Members of this House—as it was last year with probation—to ensure that the matter is debated. Yet the Government are appointing a contractor, before the Bill is enacted, to build a 330-place college. Admittedly, it will not be built before the Bill is enacted but, even so, one might have thought that this was somewhat premature. The important point, however, is that such a college would account for as many as a quarter of young offenders in detention. The objective of providing education is of course welcome, but it is self-evident that many youngsters would be a long way from home, and there are serious questions about the desirability of housing girls alongside boys and the youngest offenders alongside those in their later teenage years, as the Joint Committee on Human Rights has pointed out. There is also the question of cost. The Prison Reform Trust legitimately asks where the £85-million cost is coming from.
More important is the apparent determination of the Government to rely once again on some private sector provider to run the establishment and, significantly, to confer on it and its employees the right to use force to maintain good order and discipline,
“if authorised … by college rules”,
as set out in Schedule 6. Who will make these rules? Will they be subject to parliamentary approval, and if so by which method? Why have the Government rejected the advice of the Joint Committee on Human Rights that the use of force on children and young people for the purpose of good order and discipline is incompatible with Articles 3 and 8 of the European Convention on Human Rights? Why will they not adopt the committee’s obviously correct formulation that secure college rules should,
“only authorise the use of reasonable force on children as a last resort; only for the purposes of preventing harm to the child or others, and that only the minimum force necessary should be used”?
We have heard too many disturbing accounts of excessive force being used by private contractors on inmates of Yarl’s Wood and on deportees to countenance the possibility of similar actions in secure colleges. This policy—the objects of which we of course agree with—needs rethinking The Government should pilot a much smaller scheme with a narrower age range, close to where the children come from. It is difficult to avoid the suspicion that, as with the larger adult prisons the Government are bent on building, they are more concerned with reducing per capita costs than providing the necessary services at an appropriate and local level. Wholesaling and warehousing large numbers of damaged and vulnerable youngsters is not the way forward.
Finally, and perhaps most disturbingly, we come to Part 4 and the Government’s latest efforts to undermine judicial review. The Government are very deliberately making it much more difficult to challenge the lawfulness of decision-making, at least for those with limited financial resources. I have already disposed of the bogus claim that the current case load is excessive. Let me now deal with the barriers that are being deliberately being put in place to obstruct access to justice in this area, so vital to our democracy and system of government. Let us not forget the fences already in place in the form of restrictions to legal aid and on the payment of fees for preparatory work, which so often leads to matters being satisfactorily resolved without proceeding to trial. Once again substituting their judgment for that of the judiciary, the Government, in Clause 64, impose a mandatory requirement to refuse relief at the permission stage,
“if it appears … highly likely that the outcome … would not have been substantially different if the conduct complained of had not occurred”.
How can the court do that without a full consideration of the case? In that event, where is the saving? How, given that legal aid is not available for that stage, can a claimant make his case? Moreover, if procedural or legal errors are made, there must be some mechanism by which those failures can be challenged, even if the ultimate outcome is the same. That is what the rule of law requires.
Clauses 65 and 66, to which the Minister referred, deal with the finances and membership of applicants and organisations and require the court to take that information into account when determining costs—another mandatory imposition, clearly designed to discourage organisations and supporters, including, as Liberty points out, charities, solicitors acting pro bono or even family members, from supporting a claim where no legal aid is available. That principle is extended by Clause 67 to interveners: those who, after applying for the leave of the court to intervene to take part in the case—a necessary step—can then be required to pay not only their own costs but any costs incurred by other parties as a result. Only exceptional circumstances, typically not defined, but originally to be defined by secondary legislation, would avoid this. However, the court already has discretion in these matters. Why include this provision at all, except as a deterrent? We are talking, essentially, about public interest intervention, not individuals pursuing their own interests. In the Bill as it stands, there is a clear threat to organisations such as Liberty, Justice and the Howard League, which have played such an important part in defending the rule of law. I very much welcome the promise the Minister has made today. I hope there will be a judicious review of an injudicious proposal and that we will have an opportunity to see the results of that in Committee.
The Secretary of State has claimed that pressure groups use individuals as “human shields” to challenge the Government—a claim rejected by the Joint Committee on Human Rights and the Public Bill Committee. Moreover, as Liberty points out, the court has discretion as to whether to allow an intervention. We look forward to hearing the outcome of the Minister’s latest deliberations.
Two further matters that relate to costs are contained in Clauses 68 and 69. Cost-capping orders for claimants are welcome, but crucially can be made only on application after the permission stage. Much work will have been done up to that point and there will be no protection from liability for costs for an applicant if unsuccessful. That is no great problem for a developer seeking judicial review against a local authority, but it is quite otherwise for an applicant of modest means or a charity. The provision that secondary legislation may specify the ingredients of a public interest claim is absolutely unacceptable, especially as the Government are likely to be the defendant in many judicial review cases. Clause 69 once again imposes a mandatory duty to limit the costs that can be recovered by an applicant with a controlled costs order, thereby creating reciprocal costs protection to the defendant entirely irrespective of means. Equally, that is an entirely unreasonable fettering of the existing judicial discretion.
As I have said before, despite the assurances of the Minister, judicial review, like legal aid, is being deliberately dismantled. Characteristically, the Minister has given a lucid exposition of a deeply flawed Bill. The Opposition will work with others across the House to improve it where we can and oppose those provisions that we cannot. There are thoughtful Members on the government Benches who must share some of the misgivings that will be voiced around the House today. I hope we can work together in the interests of justice to improve this legislation.
My Lords, we come to the Bill at a time when crime is falling. In 2013, according to the Crime Survey for England and Wales, there was a 15% fall in crime overall to its lowest level in more than 30 years. The fall in violent crime has been particularly marked. It has fallen for each of the past five years, which is profoundly welcome. What is more, with the rehabilitation revolution and the measures we took last year in the Offender Rehabilitation Act, I believe we have started to tackle the scourge of persistent reoffending that has blighted the lives of so many of our young people. On these Benches we are particularly proud of the contribution in this area made by my noble friend Lord McNally, who I am delighted to see in his place today. I know the whole House welcomes his inspired appointment as chairman of the Youth Justice Board. In the criminal justice field, the Bill should be judged by its contribution to cutting crime in general further, and in particular to helping young offenders avoid reoffending.
The Bill creates new offences, which we welcome. The most significant proposals are those to make ill treatment or wilful neglect by care workers a specific offence and to create another offence for care providers of gross neglect of their duty of care. Those in their charge have a right to expect to be looked after professionally, carefully and compassionately. We have all been appalled by the many recent accounts of lack of care in care homes and hospitals. Mid Staffordshire, which was mentioned by my noble friend, Winterbourne View in Gloucestershire, and the care homes in Essex and Croydon recently exposed by “Panorama” are but other examples of what has too often become regular cruelty by carers, often attributable to systemic failures in the organisations that employ them. My right honourable friend Paul Burstow in the other place has worked hard in advocating such provisions as are now proposed. His expertise on the subject and his commitment to better care are well known. These new offences will help to prevent such ill treatment and neglect, and to deal effectively with these terrible cases where they occur.
A further specific offence of police corruption may add only a little to the existing law, but it will serve to make it clear to police and public alike that police officers are entrusted with special powers, that they hold a position and role in society that makes it incumbent upon them to observe the highest standards and that, if they should fall short of those standards and act corruptly, they can expect to be dealt with severely.
We also welcome the proposal that images of rape are to be classified as pornographic. That is obviously right, and the proposed defence that acts portrayed were in fact consensual strikes a reasonable balance. We will, however, seek to add a new clause outlawing so-called “revenge porn”—that is, putting intimate pictures of former lovers on the internet without their consent. This nasty practice, if not curbed by law, threatens to become more widespread with the advent of high-definition video cameras on phones and cameras built into glasses. Such mean acts of revenge can have profound and devastating effects on their victims’ lives, causing deep distress, often psychological illness and havoc within personal, family and work relationships. In the other place, my honourable friend Julian Huppert suggested making this practice an offence, and my right honourable friend Maria Miller organised an Adjournment debate on the subject.
On the issue of rehabilitation, we will be looking carefully at the proposals for secure colleges. My party has been at the forefront of advocating a greater emphasis on education in custody for adults and young offenders alike. I welcome my noble friend’s commitment to education for people in custody. However, I wonder whether the establishment of secure colleges may not risk large numbers of young offenders being sent to a small number of large institutions, often far away from their homes, instead of to smaller ones with more personalised care and more links with their homes and families. I invite my noble friend to consider, with other Ministers in the department, how we can ensure that sentences served in secure colleges will not jeopardise the greater opportunity for through-the-gate support, which we have been at such pains to provide and encourage for offenders close to their communities before, as well as after, release.
For my part, I am also unclear how meaningful courses are to be organised in secure colleges. Offenders are, after all, sentenced all year round, not just at the beginning of college terms. Their sentences also vary in length. I am concerned that college-style courses may simply not work for many offenders. We look forward to the consultation promised by my noble friend on the secure college rules. My noble friend Lady Linklater will deal further with this topic in due course.
If we have a general criticism of the Bill, it is that too many proposals in it would remove or limit judicial discretion. It seems to be infused with a lack of trust in our judges. I regard some of the proposals as presenting a real danger of injustice in cases which should be dealt with on an individual basis, not by the application of a blanket rule regardless of the particular circumstances.
The proposal in the Bill that I fear most risks injustice is that for a mandatory sentence of six months’ imprisonment for adult offenders, and four months for 16 and 17 year-olds, for a second offence of possessing a knife in a public place. This was proposed as an amendment in the House of Commons from the Conservative Benches by my honourable friend Nick de Bois. Regrettably, Labour MPs lined up alongside the Conservative Back-Bench Members to support it. Liberal Democrats in the Lower House opposed the amendment and we will do so again in your Lordships’ House.
Of course knife crime is extremely serious and we must come down very hard on it. In many cases where an offender repeats an offence of possessing a knife in a public place, he or she will richly deserve a custodial sentence, but that should be for judges to decide on a case-by-case basis. Compulsory custodial sentences are the wrong way to deal with the issue. They stop judges deciding who deserves prison and whether prison will do any good in a particular case. They threaten to affect young black people disproportionately because more of them are subject to stop and search. There is no proof that compulsory prison works. As my honourable friend Julian Huppert said in the Commons:
“The question … is whether we should do the thing that sounds the toughest or the things that actually work”. [Official Report, Commons, 17/6/14; col. 1034.]
We have put all our emphasis in this Parliament on keeping young offenders out of prison where we can and rehabilitating them to lead useful lives in the community. Compulsory sentences are costly and overcrowd our prisons. This is a retrograde step for rehabilitation.
It is true that the Bill would permit a court to refrain from passing the mandatory sentence if,
“the court is of the opinion that there are particular circumstances which … relate to the offence or to the offender, and … would make it unjust to do so in all the circumstances”.
But that only serves to make my point: if a particular circumstances exception is to be widely applied, it makes a nonsense of the provision for mandatory sentences; if only rarely applied, serious injustice is caused in a number of cases. We are not persuaded that there is any justification for this approach beyond, I regret to say, a desire to appeal to a populist press with an eye-catching message that we are tough on knife crime.
We are also concerned about the compulsory imposition of a criminal courts charge upon conviction, even for offenders who cannot afford it and for whom employment prospects may be affected by the existence of an outstanding charge because they cannot get credit and they are concerned by the effect on their earnings. I am concerned about the proposal that a court must dismiss the whole of a personal injury claim if it is tainted by fundamental dishonesty. As someone who has conducted many personal injury cases over the years for both claimants and defendants, my experience is that dishonesty in the presentation of personal injury claims is, regrettably, not uncommon. Defendants can often produce convincing evidence, with the aid of video surveillance or otherwise, to demonstrate that the degree of injury allegedly sustained by claimants, and the consequences of such injury, have been wildly exaggerated.
For my part, I have always believed that in appropriate circumstances, judges should have the power to throw out an entire case for extreme dishonesty or to reduce awards of damages to reflect the court’s view of such dishonesty. However, there are many cases which are affected by what might reasonably be described as fundamental dishonesty where the needs of the claimant for the rest of his or her life must come first and in fairness must be met, and where completely depriving the claimant of damages would be very wrong. But instead of giving a judge a discretionary power to reject an entire claim or reduce damages to an appropriate extent, this clause would provide that the court must dismiss the claim unless satisfied that the claimant would otherwise suffer substantial injustice. Once again, I sense a lack of trust in judges to act sensibly in the exercise of their discretion in accordance with the justice and requirements of the particular case that they are hearing.
I turn finally to the proposals for judicial review. Judicial review is the precious right of the citizen to challenge the Executive in the courts when a Government act unlawfully or exceed their powers. The law has been developed, as my noble friend said, over recent decades into what I suggest this House knows is an effective and elegant body of law. One understands that Governments do not relish being challenged in the courts: it is inconvenient. But it is the constitutional duty of this House to protect the right of challenge and to trust our judges to deal with challenges fairly and in accordance with the law.
The measures proposed in the Bill for judicial review risk deterring people with means from supporting legal challenges by making them disclose all their assets and threatening them with widespread orders to pay the Government’s costs personally. The proposals would prevent campaigning organisations and others joining in on cases as interveners to put the public’s case by making interveners pay all parties’ costs of their intervention and by preventing them getting their costs even when they win—and ex hypothesi therefore, even when they have shown that the Government were in the wrong. Campaigning organisations would find it harder to raise money to challenge the Government in the public interest. I welcome the indication from my noble friend today that the Government are open to persuasion on these provisions, but that persuasion needs to go a long way to produce a lot of movement.
Further provisions would allow the courts to protect litigants from costs orders—the so-called costs-capping orders—against them only in cases of general public importance. But what of the innocent member of the public who has been wronged in a particular but unusual case of government irrationality—nothing of general public importance but a serious case of injustice? Why should that citizen not have costs protection if the judge thinks it right that he should? In all these cases, as the noble Lord, Lord Beecham, pointed out, judges have at the moment appropriate powers in relation to costs and judges decide how they should best be exercised.
We will also wish to consider how far the proposed permissive power to make regulations to exempt environmental judicial review cases from the restriction on cost capping complies with our duty under the Aarhus convention to provide access to justice in environmental cases that is
“fair, equitable … and not prohibitively expensive”.
That will be difficult when the Aarhus Convention Compliance Committee has found that under our existing rules, the United Kingdom already fails that test.
There is no evidence that our judges let frivolous challenges or challenges that are of academic interest only because they make no difference, consume public resources unnecessarily. There is no established need for the cost deterrents in Part 4, and a justified fear that they will stifle legitimate cases. We will scrutinise Part 4 very carefully and resist unwarranted intrusions by legislation into areas that are best left to judicial discretion, particularly where what is at stake is the citizen’s right to hold the Executive to account in our courts.
My Lords, we have just listened to two very powerful speeches, which have covered the whole scope of the Bill. For my part, I shall concentrate only on Part 1, in which there is much to criticise in detail when we come to Committee. Taken as a whole, I find Part 1 profoundly depressing. We have 28 new clauses full of new offences and increased penalties at a time when, as the noble Lord, Lord Marks, demonstrated, and as we all agree, crime is actually falling and the prisons are full.
When I became a judge, not so very long ago, there was a prison population of 35,000. It is now 85,350. How can such an increase be explained, let alone justified? Mr Grayling says that there is no crisis because he has 1,000 spare prison places. However, the story from individual prisons is very different: Wandsworth is currently operating at 169% of capacity while Durham, which was built for just under 600 prisoners, currently accommodates 940. Mr Grayling says that there has been an unexpected increase in the demand for places and has suggested that one reason might be the number of recent convictions for historic sex offences. I would like to suggest a much more likely reason. Home Secretaries, as we have seen, have an itch for taking a hand in sentencing—and now, to Home Secretaries of the past, we have to add the Lord Chancellor.
I will give an example of what I know from my own experience. In the old days, the tariff in murder cases was fixed, or I should say recommended, by the trial judge, and the Lord Chief Justice would add his comments. Sometimes, the Home Secretary would accept the judicial recommendation, but in most cases he did not, for no very good reason that I could see. Then came the case of Anderson in the House of Lords, in which it was held that sentencing was the province of judges and not the Home Secretary, who must therefore play no part in fixing the tariff.
Mr Blunkett, who was then Home Secretary, had a riposte: Schedule 21 to the 2003 Act. Under that schedule, an elaborate framework has been created within which judges are now required to operate. There are four different starting points, and lists of aggravating and mitigating factors which sometimes, as we have seen recently, conflict. I have never understood the reason for Schedule 21. But I have no doubt at all as to its effect. It has increased the tariff in murder cases from 13 years, as it was, to 17.5 years, as it is now. We now have more persons serving life sentences than in the rest of Europe put together—about which I hope we will be hearing later from my noble friend Lady Stern.
However, none of this seems to worry Mr Grayling—like Gallio, he cares for none of these things. As he said recently, he makes no apology for the fact that, under this Government, there are more people going to prison than ever before, and for longer sentences. How very different he is in that respect from his predecessor, Kenneth Clarke. It was one of Kenneth Clarke’s objectives as Lord Chancellor to reduce the prison population. One of the ways he set about doing that was to repeal Section 225 of the 2003 Act. That was the section that enabled—and in many cases required—judges to pass indeterminate sentences for the protection of the public instead of determinate sentences. That was another new idea of Mr Blunkett and I would like to say a little more about it.
The original idea was that it would apply to a small group of serious offenders—perhaps a few hundred a year at most—for whom an ordinary determinate sentence would not provide sufficient safety for the public. That was how it was described by the noble and learned Baroness, Lady Scotland, when she introduced the Bill into this House. However, the result was very different. Far more prisoners were given indeterminate sentences than was ever anticipated, many with tariffs of as little as two years or less—some as little as six months.
The Government were completely unprepared. Very few such prisoners were being released as they could not get before the Parole Board and, in the test case of James and others, the European Court of Human Rights held that in these circumstances their detention was arbitrary and therefore unlawful. In 2007, Section 225 was amended so as to stem the flow of new inmates, but it was too little and too late. By 2012 there was no alternative but to repeal Section 225 altogether. Kenneth Clarke described it as having been a stain on the system, and so it was.
However, in the mean time, a huge backlog had built up. Currently there are 5,500 prisoners serving IPP sentences of a kind that could not now be lawfully imposed. Of these, 3,500 have already passed their tariff with little hope of early release. The present rate of release is running at about 400 a year. At that rate it will be nine years before the backlog is cleared. That is the position in general, but I am particularly concerned about a group of 773 prisoners who were given tariffs of two years or less in 2007 before Section 225 was amended. If they had been sentenced in 2008 instead of 2007, they could not have been given IPP sentences, so they would by now be out of prison: indeed, they would have been out of prison long ago. Yet they are still in prison.
Some 275 of them are five years or more over tariff; some as long as eight years over tariff, including 37 where the tariff was less than six months. Can nothing be done for these people to speed up their release? The answer the Minister should give is, “Yes, something can be done”. When Parliament repealed Section 225 in 2012, it was well aware of the backlog that had been created and of the need to so something about it. So Kenneth Clarke introduced a new clause giving the Lord Chancellor the power to alter the release test in the case of IPP prisoners. It need no longer be the same for other lifers, as it had been and as indeed it still is; nor need it even depend on an assessment of risk.
This new power is contained in Section 128 of the 2012 Act. It is obvious that it was included in the Act for one purpose only: to speed up the release. I have no reason to doubt that if Kenneth Clarke were still Lord Chancellor, he would have exercised the power contained in that provision. He had already described the existing state of affairs as unfair and unjust, for the very reasons that I have mentioned.
Some time—very soon—after Mr Grayling became Lord Chancellor, I asked him whether he intended to exercise the powers that he had been given by Parliament to deal with the backlog. He said that he had no such intention. The only reason he has ever given is that it would not be right or appropriate to interfere with the sentences lawfully imposed by the judges. However, in the case of the 773 prisoners given sentences of two years or less, that reason will not hold. In their case, the judges had no discretion one way or the other; they were bound to assume dangerousness until Section 225 was amended in 2007.
Mr Grayling must surely find some better reason for not exercising the power he has been given in relation to those prisoners. Nobody is suggesting that he should release prisoners who are “dangerous” in the ordinary sense of the word, but he should find some way of dealing with those with tariffs of two years or less under the powers which he has been given for that very purpose. With tariffs as short as that, they cannot have been among the most serious offenders.
In the case of 37 prisoners with tariffs of six months or less, we now know that 24 of them have a low risk of reoffending—yet they are still in prison. The matter cannot be put better than it was in a leader in the Times on 25 March. It made this point:
“The scandal Mr Grayling should address is that a process set in law”,
should be “followed in life”. I hope that Mr Grayling will do just that—not just, as the Times said, to save some £40,000 a year for every prisoner released or to reduce overcrowding but to restore to these prisoners some sense that they are being fairly and justly treated, not only with regard to their victims but as between themselves. It would thus remove what Kenneth Clarke rightly described as a stain in the system that still remains.
My Lords, I am not among those who decry the frequency with which criminal justice Bills come along. The world is changing fast and the shapes assumed by criminality change no less quickly. It is important to respond to change and to take care that the unchanging core of justice—a British value if ever there was one, as well as a Biblical value—is honoured both in the detail and in the overall direction of policy on the criminal law and its enforcement.
This fourth Bill of the present Government contains much that is welcome. For example, it makes prisons slightly safer places through allowing non-controlled drugs to be tested for at a time when some prescription drugs have become a destructive form of currency. It will also make some vulnerable people safer from the tiny minority of care workers who may ill treat or wilfully neglect them. It will increase protection from extreme pornography and appropriately raise maximum sentences for malicious communications. All that is welcome. It will ensure that cautions will be issued to 17 year-olds only in the presence of an appropriate adult. That will complete the changes made to police procedures so that all children under 18 are treated as children, which they are.
Children and young people are a particularly high priority for me as much of my time is spent supporting the causes of education and services to children and young people. For that reason, I am especially interested in the proposals for secure colleges. I hesitate to raise questions about secure colleges, since opposition to them has been authoritatively described in the other place as “bonkers”. One cannot deny the attraction of a vision of a college for children convicted of an offence serious enough to warrant detention which is just like a school surrounded by an unobtrusive fence and with a first-rate education programme. It sounds good. However, the Bill presents this vision in soft focus and with very little clarity of detail. That is where I get anxious.
The number of children in secure custody has reduced greatly in recent years, which is an achievement in itself. The children are looked after in relatively small institutions, which are small enough to focus on the individual. Even the larger young offender institutions in existence now are considerably smaller than the proposed secure colleges. Children from 12 years of age and upwards, currently held in secure children’s homes, would be in the secure college. Girls—again there are only a small number of them—would also be held there. What seems certain is that, on average, children would be held much further away from their home area than at present. We are told that specialist subunits on the college site would care for these minorities. No one quite seems to know how that would work.
One telling detail in the Bill is that it gives to secure college staff the power to use reasonable force to maintain good order and discipline. I must protest that it is legitimate to use physical constraint on a child only in order to prevent harm to the child or others. A Bill which insists on the presumption of a custodial sentence for anyone, including a child, carrying a knife might by the same token be expected to keep to a minimum the use of physical force on children by the state’s own officers.
The other important theme to which I draw attention is access to justice and the ability to hold the Executive to account for their actions. The impact of the proposed changes to judicial review has to be seen in the context of a cumulative series of changes relating to legal aid and judicial review from the time of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 onwards. Judicial review is a vital element in our system of democracy and in ensuring that elected authorities act in accordance with the law. The executive power at every level must be subject to law. In the pages of scripture, in Deuteronomy, the King of Israel is told that he must not consider himself better than his fellow Israelites or turn from the law to the right or to the left. The same applies to all public authorities at all times.
The 2012 Act reduced the eligibility threshold for legal aid and cut legal aid across many areas without affecting the funding of judicial review. Eight days after the 2012 regime came into force, the Ministry of Justice published proposals for further changes in legal aid funding for judicial review, including the introduction of a residence test. In addition, new rules on time limits may well further limit access to justice. It is disturbing when the Bar Council says that when combined with other recent government measures for changing the law of judicial review, these changes, if enacted in their current form, will immunise government and other public authorities from effective legal challenge.
Where there has been a case for the overuse of judicial review, in planning or immigration matters, for example, changes have already been made. It is no longer possible to sustain the claim that there has been massive expansion in judicial review cases requiring urgent action. Nor is there evidence that the permission stage in judicial review has become too lax, letting through groundless claims.
It is important that the system strikes a balance between the interest of claimants and defendants so that justice is done. The proposals in the Bill risk tilting that balance too far in the direction of the defendant. The charge that judicial review has become a campaigning tool for pressure groups does not seem to be recognised by those who know the field well. The Bill’s proposals would raise the threshold for bringing a case, and in various ways would increase the financial risk for those bringing a case and for charities and other bodies wishing to intervene in a case. It seems inevitable that it will be the individuals and groups with a sufficient financial base that will be able to risk losses and enter into the judicial review process.
Many other aspects of the Bill will merit close examination. For example, we may need to consider the extra burdens to be placed on the already hard-pressed Parole Board, as has already been mentioned. The fixed-term recall for some others is another issue. At this stage, however, it is the proper care of troubled children and the ability of people with fewer material resources to challenge decisions of those with executive authority that I wish to emphasise as legitimate concerns for the House.
My Lords, I find myself in unfamiliar territory today as criminal justice is not my usual stomping ground, but I feel an urgency to raise again my deep concern about the cumulative impact of the Government’s reforms—let us call it death by a thousand cuts—on the lives of disabled people. I am aware that many fine legal minds might also be taking the Minister to task, so I will be in good company.
Less than two months ago I spoke in support of a Motion laid by the noble Lord, Lord Pannick, to regret the Government’s changes to legal aid for judicial review. Having looked very closely at Part 4 of the Bill, I realise how critical the connection is between these two debates.
The Government have presented their changes to judicial review as no more than tinkering with dusty and irrelevant procedures. Nothing could be further from the truth. Judicial review and access to justice have never been more important, particularly for people with disabilities, who, let us face it, are financially challenged. Disabled people have far more contact with public agencies, whose decisions may have a devastating impact on how we live. It is not surprising, therefore, that the means of ensuring that those decisions are taken lawfully, fairly and as Parliament intended is so highly prized. The Government tamper with it at their peril.
Much has been made of a few high-profile cases to make the case for this change. The bread and butter of judicial review is not about Richard III; it is about ordinary people and their relationship with administrative and organisational power. As I said in the Motion of Regret,
“judicial review … is about people standing up to public bodies when”—
and they do—
“they get it just plain wrong”.—[Official Report, 7 May 2014; col. 1549.]
Take the Tracey family, who established at the Court of Appeal that an NHS trust had acted unlawfully by placing a DNR—“Do Not Resuscitate”—order on their mother’s records without consulting her. In a landmark judgment, the appeal court stressed that the duty to consult is an integral part of respecting patients’ dignity. That case could have been mine. I know only too well how frightening it is to have a DNR order placed on my hospital notes. Ten years ago, I faced it myself when admitted to hospital with pneumonia. Luckily, the DNR order was spotted early, and on that occasion the situation was resolved—I am here—but I was always afraid that this could happen to other disabled people. The Tracey family judgment has gone a long way towards allaying our fears and making us feel safer—judicial review.
As noble Lords will know, I served for many years as a commissioner on the Disability Rights Commission and then the Equality and Human Rights Commission. I oversaw the cases they supported or intervened in. I know how important those cases were: for example, the decision that a local authority’s blanket ban on manual lifting and handling, which deprived two seriously disabled sisters of any control over their lives, was unlawful. That ruling has had a life-changing impact on the practice and procedures of all local authorities.
Although we are not here to discuss legal aid today, the proposals in Part 4 of the Bill must be considered in that context. The legal aid changes will make it harder for people to secure advice and representation. Increased fees already make it more difficult for those without means to access judicial review. Part 4 will introduce further barriers, and may restrict judges’ discretion to act fairly in cases that should be heard in the public interest.
I have questions to put to the Minister in two areas of these proposals. The first relates to the “no difference” test. Clause 64 will require judges to refuse judicial review where, even if a local authority acted unlawfully, the outcome would be “highly likely” to have been no different. Consider a failure by a local authority to consult the community in its decision to withdraw a service. Are the Government really asking a judge to “guesstimate” what the outcome of that consultation might have been and what disabled people might have said in response? Will he then guess how the local authority might have responded? Is second-guessing part of the judge’s role?
The second area for the Minister relates to the disclosure of financial information. Under Clauses 65 and 66, judicial review claimants will have to provide information on their financial resources before their claim can proceed. The Government say that they want to stop claimants being used as “human shields” by unscrupulous persons trying to avoid court costs. That really does not ring true to me.
Of concern is the worrying effect of these measures on poorer claimants and those who are willing to support them if they cannot get legal aid. If my cousin gives me £5,000 to help me challenge a decision about my support, will that open up the spectre of an order for court costs, putting her home at risk? What about lawyers volunteering their services pro bono? Would their gifts in kind put them at similar risk? If not, where is the reassurance in the Bill? I hope that the Minister will clarify this.
The Joint Committee on Human Rights has published a powerful critique of these proposals. I had the privilege of serving on that committee and I know how hard it works to reach a cross-party consensus on politically contentious cases. I wholeheartedly endorse its conclusion that the case for change is not made and that Part 4, if not heavily amended in Committee, should be rejected. But I am heartened today by the Minister’s comments that having listened to concerns raised on this in the other place, he may consider amendments in Committee. I look forward to holding the Minister to this when he returns in Committee, and I will be back too.
Disabled people, more than any other group, have experienced the cumulative burden of myriad government reforms in recent years. Please let us not make access to justice the final injustice.
My Lords, first I declare my interests as set out in the register, in particular as a practising solicitor and partner for the last 46 years in an international commercial law firm, DAC Beachcroft. I am also very proud to be vice-chairman of Justice. I am relieved and pleased to see in her place the chair, the noble Baroness, Lady Kennedy of The Shaws. I know that she will deal with some of the points, in particular those just raised by the noble Baroness, Lady Campbell of Surbiton, because Justice is concerned that the Bill raises significant issues in its proposals for the change to criminal and civil law regarding access to justice. I think we all want time to reflect on what the noble Baroness said about Clauses 64, 65 and 66, and we look forward to hearing the Minister’s reply.
I wish to concentrate on two areas, referred to by the noble Lord, Lord Beecham, from the opposition Benches. I would first like ask him why he looked at me so critically when he said “cavalier”. I am not quite sure why he did this. I could respond by saying that it takes a Roundhead to spot a Cavalier, but I would not dream of doing so.
The noble Lord makes precisely the remark I was about to make. I was not conscious of looking at the noble Lord. A cat, of course, may look at a king. I hope I may look at the noble Lord occasionally.
I am relieved, mainly because I always pride myself on being a master of the single entendre, so I am happy I did not go down that route.
I formally welcome the Bill as an opportunity continually to revise the law. In many respects this House points out, as the noble and learned Lord, Lord Lloyd of Berwick, did once again, that we must be very careful about passing new laws and new provisions, but we must always reflect on how we can improve the existing law while always avoiding the law of unintended consequences. I suppose I could slightly misquote Socrates by saying that good people do not need laws; bad people will always find a way around them. Therefore, we must proceed with caution, particularly when we create new offences.
If I could I will also add my own experience of speaking from the opposition Bench on the Compensation Act 2006, when the regulation of claims management was first brought in. Kevin Rousell has done a magnificent job with limited resources in running that unit. It was always agreed from this Bench by the then Minister, the noble Baroness, Lady Ashton, that the claims management unit within the Ministry of Justice would act as a sort of temporary regulator and eventually the Legal Services Board would take on the responsibility for proper regulation. I know that some of my noble friends have elsewhere urged that it should be the FCA that takes on responsibility, but I think we have to deal with proper and effective regulation of claims management companies.
The claims farmers allege that I have a vendetta against them—and I plead guilty, because I think that some of them are responsible for the most outrageous practices. The noble Lord, Lord Marks, referred to the element of fundamental dishonesty, to which I shall return in a moment. When we get these phone calls and text messages when we have not had an accident, let alone a whiplash injury, urging us to bring a claim and being assured that we can get money and that it will not cost us a penny, I really think that we have to take further measures to regulate the sector.
The Bill is significant and far-reaching, and I want to concentrate first on Clauses 17 and 18. Once again we had a gap in the law. As one of my colleagues pointed out, in effect this is legislation to fill an odd gap, whereby a carer could wilfully neglect or ill treat an incapable patient and be criminally prosecuted for it but commit the same act in relation to a capable patient and have no obvious route to criminal sanction. That was the gap. We are now moving in another direction, where we must be careful about the law of unintended consequences. This new offence—in particular, the addition of a provider level, which is in effect a corporate offence—is a significant addition, augmenting the Care Quality Commission’s regulatory breach channels of sanction and duplicating the Health and Safety Executive’s regulatory sanctions against corporate bodies and directors. So we have to think through how we make sure that we avoid doing exactly the opposite of what is intended.
I urge on my noble friend the Minister the need for clear advice to the sector and the police. In particular, how is it decided that the differences between these three offences, or perhaps even four offences in some cases, should be clearly laid down? How is it to be decided which cases go into which investigative process? A provider could face three or four investigative threats arising from a single event. How well formed is that necessary clarity? I agree with my noble friend that we have to do something; we cannot allow the situation to develop whereby people who are guilty of very serious acts are able to escape unpunished. Equally, we must heed those in the professional organisations who point out that there has to be a need for the Crown Prosecution Service to develop clear guidelines as to the circumstances in which prosecution will follow, to quote the BMA,
“to provide care workers with the assurances they need to encourage incident reporting”.
It is an area on which I hope we will focus when we go into Committee.
I move on to the other part of the Bill that appeared for the first time at the last moment in the other place. Clause 45 is called, “Personal injury claims: cases of fundamental dishonesty”. It is very difficult to disagree that when someone has been fundamentally dishonest they should not be punished in some way. As with claims farmers, we have seen far too much of this dishonesty, so to stop someone who has a valid claim from exaggerating any part of it, which is the deterrent effect of what is proposed, is an admirable intention. But what does it mean to be fundamentally dishonest? What is the difference between dishonesty and fundamental dishonesty? Is it a civil standard of proof? To impose a criminal standard of proof would make it extremely difficult to bring any defence on this basis.
We also have the situation, which I have known in my career as a practising solicitor, where quite often an overzealous claimant lawyer will include all sorts of areas of claim for which the claimant probably never had it in mind to sue and perhaps will link subsequent injuries to the original accident, when they were clearly due to something that happened afterwards and independently. How are we going to deal with a genuine injury that has nothing at all to do with the incident that has given rise to the claim?
I do not say for a moment that we are opening up Pandora’s box, because I strongly support the view that we have to eradicate dishonesty from civil claims. However, we have to proceed carefully and with caution, and there may be a need for clarification and further amendment.
I say this as someone who practises in this area: we do often see genuine claims. However, as many noble Lords pointed out in previous debates, we are seeing far too many exaggerated claims and claims that have no real fundamental basis for litigation. Therefore I particularly want for all those concerned in this area a clear message that dishonesty is not to be tolerated. If that message can be strong enough, we will have achieved something.
Finally, as far as the National Health Service is concerned, we are seeing very substantial claims for future care, some of which dwarf the rest of the claim and which are far bigger and more extensive than I ever experienced when dealing with matters like this, where I often found that the person who was injured was far better off in a hospital that dealt with similar cases—whether it was a broken neck from jumping into a swimming pool or something of that nature—and being alongside people with a similar injury, rather than being allowed to develop a whole hospital around their home.
We have to be mindful of the Chief Medical Officer’s report, Making Amends. It was a long time ago, but at the time we all welcomed it when he said that it was necessary to review again Section 2 of the Law Reform (Personal Injuries) Act 1948. I think that time is now upon us. I also urge my noble friend the Minister to consider, as he looks at personal injury claims of this nature generally, introducing some form of capping, so that much needed money, particularly in the National Health Service, is not diverted into dealing with very substantial claims for future care but is far better directed to the necessary rehabilitation that so many of us have supported for so long.
My Lords, I am concerned about the general thrust of this Bill. As my noble friend Lord Marks of Henley-on-Thames and the noble and learned Lord have already said, that general concern is what appears to be a withdrawal of power and discretion from judges and handing it to Ministers.
There are particular provisions I want to speak about. The noble Lord, Lord Beecham, criticised the Government for headline-grabbing measures. I hope that the Labour Opposition are not going to support headline-grabbing measures that suit their advantage and will actually oppose some of those measures that I think are headline grabbing, the first of which is Clause 23 on the corrupt or other improper exercise of police powers and privileges. Members of the House may wonder why I am speaking about this. Having been a police officer for 30 years, I thought that it might be obvious. I do not think that I can be accused of being an apologist for the police service. Anyone who thinks that should see last week’s “Panorama” programme. Indeed, I was one of the parties who took the police to judicial review over the phone hacking issue, and I will come back to that in a moment.
A number of cases concerning police misconduct have recently come into the public consciousness—one was mentioned by the Minister in his opening speech. However, the one recent case that resulted in a prosecution was that of a police officer for misconduct in a public office. Although the police officer was off duty, the case was successful and he was jailed. Therefore, I have two questions for the Minister. Like my noble friend Lord Marks, I accept that the police have special powers, but is the measure necessary at all in that there is an overlap with misconduct in a public office, which appears to be entirely adequate to cover the matters in the new provision? I am a liberal and I believe that we should have new laws only if they are absolutely necessary.
Secondly, if a new offence of misconduct in a public office is necessary, why have police officers alone been singled out for this offence? Other people who hold public office have similar powers—for example, immigration officers and officers from Her Majesty’s Revenue and Customs. If we are talking about access to confidential information that might be given inappropriately to the media, we should note that people working in the intelligence services and the Ministry of Defence also have access to such information. Indeed, what about the conduct of politicians? We have powers and privileges and some of us have been found to have allegedly offered to ask Parliamentary Questions for money or claimed expenses to which we are not entitled. However, these new provisions do not cover any of that. Will the Minister therefore please reassure the House that the police are not being unreasonably singled out by this proposal? In his opening remarks, he said that the existing offence of misconduct in public office was not always best suited to dealing with corruption. I would be grateful if he would elaborate on what that means.
Clause 25, which was introduced by way of an amendment in the other place, concerns the possession of an offensive weapon or bladed article in public or on school premises and the imposition of a mandatory custodial sentence. Consistent with my general concerns about the Bill and the removal of judicial discretion, not only does this clause compel judges to impose an “appropriate custodial sentence”, it goes on to define what that sentence is. The whole point of having judges, social workers, the probation service and, in some cases, medical experts providing reports on the backgrounds of those convicted of offences is to ensure that custodial and non-custodial sentences imposed by judges are appropriate. I also suggest that the imposition of a fixed custodial sentence in criminal proceedings without taking into account the antecedents of the accused should never be considered an appropriate custodial sentence. One has to ask what is the purpose of imposing such a draconian and inflexible punishment? In my considerable experience as a police officer, criminals rarely, if ever, think about what the likely penalty will be before they commit a crime because they do not anticipate getting caught.
In support of this amendment, some have quoted the current Commissioner of Police for the Metropolis, who says that he met offenders in a young offender institution and they told him that they no longer carried guns because of the mandatory five-year sentence for possession. Rather than a single anecdote, a colleague of mine conducted academically rigorous research with young offenders at the same institution, albeit some time ago. Most of them did not understand how they found themselves incarcerated—let alone that this was a possibility at the forefront of their mind when they committed street robbery. Surely the purpose of any legislation relating to the carrying of knives and other offensive weapons must be to reduce the rate of offending and reoffending. Even with longer sentences, any beneficial effect of a custodial sentence is often thwarted by the overcrowding in prisons—a problem that will only be made worse by measures such as this. What is likely to have the most beneficial effect on knife crime is to create the realistic belief in the mind of offenders that they will be caught.
In order to improve the chances that this will happen, the police need to work closely with people in communities prone to this type of crime, who know who the knife-carriers are, and who need to be encouraged to pass on such information to the police. If these members of the public believe that their son, partner or friend will definitely be sent to prison if found in possession of a knife, they are even less likely to provide that information to the police than they are now. In the absence of such specific intelligence, the police have to resort to the type of stop-and-search operations that create division and resentment between the police and their communities. Making detection more, not less, likely and allowing judges to tailor sentences in a way that they consider offers the best chance of rehabilitating the offender before them, rather than an inappropriate short-term sentence that is unlikely to prevent reoffending, must be a much better way forward.
Finally, on a very different issue, I want to express my concern about the proposed changes to the provision of information about financial resources in relation to judicial review, contained in Clause 65. The new provision requires that the applicant for judicial review declares not only how the application will be financed but,
“information about the source, nature and extent of financial resources available, or likely to be available, to the applicant to meet liabilities arising in connection with the application”.
Again, I want to speak about my personal experience. As we have learnt over recent years and were reminded last week, evidence came into possession of the police that many people had potentially been the victims of phone hacking by News International, including me. Yet the police not only failed to properly investigate those offences first time round, apparently for reason of “lack of resources”, they also failed to tell the potential victims that they had identified them as potential targets of illegal phone hacking. In a police decision log relating to the case, a decision is recorded that these victims should be informed. There is no subsequent decision recorded that the police should not inform victims, and there is no explanation to date about why that original decision was not implemented.
I and other victims, including the noble Lord, Lord Prescott, decided to ask for a judicial review of, among other things, the police decision not even to inform the victims of potential phone hacking, as we felt that there was a fundamental principle here about the right to a private and family life, and the police’s responsibility to help such victims to protect their privacy. The noble Lord, Lord Prescott, put it more eloquently: “They should have told us to watch our phones”. Thankfully, our lawyers were equally incensed and agreed to work under a conditional fee agreement, but insurance against the costs payable to the other side if the case failed is very difficult to secure in such cases, and in this case it proved to be impossible.
Again thankfully, a rich benefactor agreed to underwrite the other side’s costs in the event of our losing the case, but on the strict agreement that his identity would not be revealed unless and until it was necessary to do so. We won the judicial review on the point that the police had acted illegally by not informing the victims of phone hacking in these circumstances, but it is doubtful that the case would have been brought at all if it were not for that benefactor. When I discussed the Bill with my lawyers, they questioned whether the proposed legislation would apply where costs are simply underwritten rather than when payment is made before the case proceeds. I should be grateful if the Minister can clarify whether a case such as mine would be affected by these new proposals.
It appears to me that important cases—my case is but one—are not going to be heard in the courts and important points of law are not going to be established if the Bill is passed as it stands. I wish my noble friend the very best of luck in reassuring me and this House on the issues I have raised.
My Lords, Part 4 of the Bill contains proposals that have the purpose, and will have the effect, of impeding judicial review in performing its essential role of ensuring that public authorities, including Ministers, act lawfully. In opening this debate, the Minister suggested that judicial review began in the 1970s. That uses as much poetic licence as Philip Larkin’s suggestion—the noble Lord recalls the quote—that,
“Sexual intercourse began
In nineteen sixty-three …
Between the end of the ‘Chatterley’ ban
And the Beatles’ first LP”.
Judges have, of course, been examining the legality of government action since the 17th century.
I have been in practice at the Bar since 1980, representing claimants and government departments in hundreds of judicial review applications. During that time, each and every Government have shown signs, perhaps understandably, of being irritated from time to time by the power of the judiciary to identify and remedy unlawful conduct. When they calmed down, however, Ministers recognised the value of what is central to the rule of law. They also had in mind a more pragmatic consideration—that they would not be in power indefinitely and they would wish their successors to be subject to the same proper constraints of the rule of law.
The current Secretary of State for Justice, Mr Grayling, is different. He has brought forward legislative proposals to control judicial review, and helpfully explained why he was doing so in an article, which I commend to all noble Lords, in the Daily Mail on 6 September 2013. This is what he said:
“The professional campaigners of Britain … hire teams of lawyers who have turned”,
judicial review “into a lucrative industry”. Judicial review, he said, is a promotional tool for countless left-wing campaigners and therefore needs to be reformed. It is a tribute to the sense of humour of the noble Lord, Lord Faulks, that in opening this debate he emphasised the need to avoid legislating by reference to newspaper headlines.
The Lord Chancellor repeated the thrust of his complaints when he spoke to your Lordships’ Constitution Committee in March. I am aware of no evidence whatever to support his basis for legislating, and, more importantly, nor is the judiciary which hears these cases five days a week. The response of the senior judiciary to the Ministry of Justice’s consultation last November was that the judges had seen no,
“evidence of inappropriate use of judicial review as a campaigning tool, and it is not the experience of the senior judiciary that this is a common problem”.
That is not to dispute that judicial review procedures can be improved. The Fordham inquiry for the Bingham Centre for the Rule of Law made some very sensible suggestions earlier this year. What is objectionable is the wish of the Lord Chancellor to restrict the means by which the exercise of powers by himself and other Ministers are subject to review for their legality by independent judges.
Clause 64 is the first objectionable provision. It provides that courts and tribunals must refuse to allow the judicial review application to proceed to a full hearing if the defendant shows that it is,
“highly likely that the outcome for the applicant would not have been substantially different”.
If the case does proceed to a full hearing, the court must refuse to give any remedy to the applicant if that same test is satisfied. That is objectionable on constitutional grounds. The clause instructs judges to ignore unlawful conduct, and to do so in a context where the Government themselves are the main defendant. It is also objectionable because it fails to understand that judicial review is concerned not just with the narrow interests of the individual claimant had the results been different. Judicial review serves a public interest by exposing systematic breaches by public authorities of legal requirements. One of the most powerful remedies available to the court is the declaration, about which the noble and learned Lord, Lord Woolf, wrote the leading textbook. It tells the Government and the world that what has been done is unlawful. Ministers and civil servants know that they must change their conduct for the future, and they do. This is not a question of preventing judicial reviews on “minor technicalities”, as the Minister suggested in his opening remarks. Clause 64 is also very unwise for practical reasons, because it will require the court, at the preliminary stage, to conduct a detailed review of what would have happened. That would be time-consuming and expensive, and it would promote satellite litigation.
My second concern is Clause 67, which addresses the costs of interveners in judicial review proceedings. The Minister helpfully indicated that the Government may look favourably on amendments to the clause. Let me explain why that would be very wise. Very often in judicial review cases the court allows a person or body to intervene because it has knowledge or experience that may assist the court in deciding the case. However, Clause 67 says that interveners may not receive their costs for doing so, other than in “exceptional circumstances”. More troublingly, it says that, unless there are exceptional circumstances, the intervener must pay any costs incurred by a party as a result of the intervention. That is wholly unnecessary. The current position is clear and fair: the court has a complete discretion over whether to allow an intervener to appear, whether to order a party to pay the intervener’s costs, or whether to order the intervener to pay the costs. I am unaware of any evidence produced by the Secretary of State, or, indeed, anyone else, to suggest that there is a problem here. In any event, the provisions in the Bill are manifestly unfair. They will deter public interest bodies, whether it is Liberty, the GMC or the UN High Commissioner for Refugees, from intervening. They will not intervene if they are at risk of paying the costs other than in exceptional circumstances. The courts derive considerable assistance from these public interest bodies, and it will be greatly to the detriment of our law if this clause is enacted.
The third matter that causes me concern is Clauses 68 to 70 on protective costs orders—PCOs. In a case that raises issues of public interest and importance, the court has a power, before the case is heard, to set the maximum figure for the costs that a claimant will be required to pay should their claim not succeed. The object of a PCO is to ensure that a claimant who raises issues of public importance should not be deterred from bringing the claim by the risk of having to pay unquantified costs. At the moment, PCOs are a matter for the discretion of the court. The clauses will allow the grant of a PCO only when permission to bring a judicial review has already been granted, but the risks of having to pay the costs of a contested hearing for permission will deter these claims from being brought. That, I am afraid, is precisely the aim of the Secretary of State.
I suggest that it is also objectionable that Clause 69 would give the Secretary of State the power to decide what are “public interest” cases for these purposes and to define the factors which a court should take into account. These are simply not matters for a Minister by subordinate legislation—a Minister who is one of the potential defendants in the cases that he wants to regulate. Again, I have seen no evidence to suggest that the current exercise of these powers has caused any problems whatever, other than, of course, the general problem that government departments would rather not be the subject of a judicial review application at all.
Finally, I am puzzled by Clauses 65 and 66. Clause 65 requires the provision of information about financial resources in judicial review cases, and Clause 66 will regulate the use of information about financial resources on the assessment of costs in judicial reviews. But why single out judicial review for such provisions unlike any other form of civil litigation, and where is the evidence of any current difficulty?
All these clauses are designed to impede the effective exercise of judicial review, and, if enacted, that is precisely the effect that they will have. They all arise from a failure to understand, and indeed a complete lack of appreciation for, the very concept of judicial review as a means of holding government departments and other public bodies to account as to their legality in public before an independent judge. The judiciary has made it very clear in consultation that there is no practical need for these clauses and the Government have produced no evidence to justify them. The clauses have been criticised powerfully by the Joint Committee on Human Rights. The Government, as the main defendant in judicial review cases, are seeking to legislate in their own interests contrary to the public interest and contrary to the rule of law.
I will be putting down amendments to these clauses in Committee. I know that the concerns that I have expressed are shared around this House and outside it. I hope that the Minister and the Secretary of State are prepared for the detailed scrutiny which Part 4 requires and which it will undoubtedly receive.
My Lords, I wish to associate myself very strongly with the opening remarks of my noble friend Lord Marks in relation to this Bill. It is what I would call a “bits and pieces” Bill, or what in Lancashire would be called a “bits and bats” Bill, and as a consequence it will attract bouquets and brickbats. I shall start with a brickbat and then move on to a couple of bouquets, which I think it deserves.
The brickbat, as one might expect, relates to the clauses on judicial review. There are those in this House who can talk with far greater knowledge and eloquence on this subject than I ever could, but I want simply to bring to the attention of Members of this House the widespread fear that has been generated among charities such as Mind, whose role is in part to stick up for people who are often at the rough end of public law decision-making. They are very concerned about all the proposals on judicial review, and in particular about Clause 67. Charities with specialist expertise but not a lot of funding see it as a deliberate attempt to deter them from standing up for people who need support in cases that raise a wider public interest. We should bear that in mind as we scrutinise these clauses, as set out in the speech of the noble Lord, Lord Pannick—which was, I would say, a wonderful speech to listen to.
I want to go on to give the Government some deserved bouquets. One is for the inclusion of Clauses 17 to 22, which set out the new offence of ill-treatment or wilful neglect by social care providers. In doing so, I pay tribute to my colleagues in another place, in particular Paul Burstow and Norman Lamb. In the wake of the revelations of appalling abuses at Winterbourne View and Stafford Hospital, Paul Burstow mounted a diligent and detailed campaign to ensure that those who were to be held responsible and duly penalised should be not just the front-line staff, but those who own, govern and manage social care providers. Paul Burstow and the leading professionals involved in the review of Winterbourne View put together a detailed case analysing the law as it stood in January 2013.
There are many pieces of legislation under which an individual can be prosecuted if they are suspected of hurting or harming a vulnerable adult. These include the Offences Against the Person Act 1861, Section 39 of the Criminal Justice Act 1988 covering common assault and battery, and the Domestic Violence, Crime and Victims Act 2004. A great deal of existing legislation can be used when an individual is suspected of maltreating another individual. The trouble is that often it is not, because there is a wide degree of misunderstanding among professionals and the police as to which laws should apply.
Last year, the noble Lord, Lord Faulks, and I were part of a Select Committee of this House which was tasked with reviewing the Mental Capacity Act 2005. Section 44 of the Act states that it is an offence for any person to ill-treat or wilfully neglect someone who is covered by the Act; that is, someone who lacks mental capacity. There is a problem with that part of the legislation in that it is entirely possible for a perpetrator of abuse to mount the defence that they did not know that the person lacked capacity. Our committee saw that as a fundamental flaw in the legislation—a flaw that does not exist in the equivalent legislation in Scotland, where there is no need to determine that the person knew that the victim lacked capacity.
In their response to the committee, I am afraid that the Government said that they do not think there is any need to review that part of the legislation. I am disappointed with that. The noble Lord, Lord Faulks, left our committee because of his elevation to his current role. Would he consider that again and also write to me and make available to other professionals in the field of social care the clarification of how Section 44 of the Mental Capacity Act will sit alongside the new offence of ill-treatment or wilful neglect in this legislation?
The work that my honourable friend Paul Burstow has done shows that there are pieces of legislation that could be applied to corporate bodies. Section 91 of the Health and Social Care Act applies to corporate bodies that are found guilty of ill-treatment. The trouble is that the actions that can be taken against a body can be applied only to one person—the registered officer of that organisation. Using the Corporate Manslaughter and Corporate Homicide Act as the basis for his new proposals, Paul Burstow has established that even if there is no directing mind within an organisation, an offence has been committed by those managers who should have been responsible for the oversight of front-line staff. It is a good way of plugging a gap that has enabled managers and directors of care providers to walk away from their crimes completely unpunished while front-line staff have had to go to jail.
I move on quickly to the two remaining issues. One is malicious communications—the new,
“offence of sending letters etc with intent to cause distress or anxiety”.
As I sat and prepared this weekend, I read Clause 27. I thought that its wording was such that it could have been clattered out on a typewriter by Agatha Christie herself. Can the Minister clarify “et cetera” in this context? Some of us on these Benches remember when our former colleague Earl Russell asked the same question of a Minister. In this day and age, does et cetera mean tweets, e-mails, postings on websites? What does it mean? Those of us who are on Twitter know that a troll does not take pen to paper. A troll resorts to electronic communication. I would like the Minister to tell us the scope of these provisions. We are always running behind the internet in terms of our legislation and I would like to think that for once we could get it right. Out there are people, most of whom are women, suffering the most appalling abuse at the hands of individuals who at the moment think that they are faceless.
On revenge pornography, my friends in another place, Julian Huppert and Martin Horwood, have quite rightly said that it is time to make it clear that this is a criminal offence. Taking pictures in the context of a loving personal relationship and then putting them on public display is a particularly vicious violation of a person’s dignity. Again, a number of pieces of legislation could be used, but most predate the internet and are an obscure way of getting to the problem. We know that this is increasingly happening. Sites are putting up pictures and women are being extorted to pay large amounts of money to have the pictures removed. Blackmail and abuse such as this should not be part of the business model of any internet service provider or social media company. The Obscene Publications Act 1959 or the Protection of Children Act could help—but not enough and not swiftly enough. It is time to make this a criminal act and require search engines and social media companies to withdraw such material on request. We must make sure, above all, that the police are trained and equipped to see this for what it is—a horrible, horrible criminal act.
My Lords, I rather imagine that not many of your Lordships know that, as a young man, I wanted to be an actor. I must therefore start by acknowledging my gratitude to the Whips’ Office for putting my name in lights on the annunciator for many hours. I also apologise to those of your Lordships who have come to listen to the Statement on Europe, because I have one or two things to say. The first is that I agree with many provisions of the Bill, but the main parts of my speech will deal with two clauses that I do not think should be in it and one matter that I believe should be.
However, I must begin with an apology to the House. On 12 March this year, I asked an Oral Question of the Minister about the ban on jury research contained in Section 8 of the Contempt of Court Act 1981. The Minister and I agreed to discuss the issue and, indeed, have done so. I apologise because there is no ban on jury research for academics—there never has been and it was never intended for there to be. There is just a ban on asking individual jurors what happened in the jury room. Anonymised research on the type of case, type of court, ethnicity, gender and much more is not banned. The trouble—and my excuse for misleading the House, as it were—is that although there may not, de jure, be a ban, de facto, almost everyone thinks there is; including not only me but many Members of this House including, perhaps rather quietly, even some noble and learned Lords with whom I have spoken, before and since my Question.
I have since spoken at length with Professor Cheryl Thomas of University College London, who has conducted research in this area and on how juries work, and had it published by the MoJ. The Minister even mentioned her in his reply to my Question. However, the problem is that she seems to be almost the only person in the country who does this sort of research because most people, including most academics, appear to think it is impossible. I apologise for asking a Question that was inaccurate but I do not apologise for raising an important subject. When he replies, can the Minister agree to require the MoJ to issue, as soon as possible, new comprehensive and clear guidance on what is and is not possible in jury research and to put it on the MoJ website? This is important because, as we have seen in the past week, juries in criminal trials, and how they work, are a central and vital part of how most people view and judge the whole judicial system in the UK.
Turning now to what should not be in the Bill, I raise for the consideration of the House Clauses 23 and 24, which deal, respectively, with the corrupt or other improper exercise of police powers and privileges, and the term of imprisonment for the murder of a police or prison officer in the course of their duties. This House complains occasionally about unnecessary legislation. These clauses seem to be not only unnecessary but entirely populist and should be struck out.
I begin with the murder of a police officer or prison officer. The Government propose that such a murder, rather than being in the category of cases where the starting point on conviction is a minimum sentence of 30 years, should instead be considered in the rare category where a whole-life sentence should be the starting point. Particularly having had the experience of someone trying to kill me with a machete, I yield to no one in my view that the murder of a police officer on duty is an outrage. However, the MoJ has forgotten its history, in two ways. There is simply no evidence—no evidence at all—of the judiciary failing to accord a conviction for the murder of a police officer or prison officer on duty the utmost seriousness. In the 1980s, I served in Shepherd’s Bush police station, in whose front hall is a plaque commemorating the murder, which I am sure a number of noble Lords will recall, of three Metropolitan Police officers—Geoffrey Fox, Christopher Head and David Wombwell—in August 1966 in Shepherd’s Bush, by Harry Roberts and his associates. Harry Roberts is still in prison, 48 years after the murder. His associates are dead. What need is there, in the face of this, for a change in the law?
Secondly, the MoJ seems to have forgotten that, following the abolition of capital punishment for murder in 1965, there were continuous attempts in the years that followed to reinstate capital punishment for the murder of a prison officer or a police officer on duty. These attempts were always resisted not only by the precursor of Liberty, the National Council for Civil Liberties, but also by the police service. It was believed that a prisoner on the run after such a killing would reason that if he was to hang, he would have no compunction in killing other people, including other police officers, to escape. I disagree with the point made by the noble Lord, Lord Paddick, that some prisoners do not know what the sentence is; you know what the sentence is if it is hanging. The whole-life term is the contemporary version of hanging. This clause is not only unnecessary but capable of risking lives. It is wrong.
I turn now to Clause 23 about police corruption. This legislation is not only loosely drawn but entirely unnecessary. I am sorry to hear that the Opposition will support it. I have led investigations that have led to the conviction of police officers for corruption. Police corruption is an evil; it is a permanent and corroding threat. However, neither I nor the CPS, in my experience, has ever had any difficulty in framing charges under what was then the Prevention of Corruption Act, which would now be the Bribery Act 2010, or the common-law offence of misconduct in public office. The difficulty was not the charge but finding the evidence in a crime where all the participants do not want to tell anyone about it.
That this is unnecessary legislation is shown in subsection (11), which the Minister mentioned, which states:
“Nothing in this section affects what constitutes the offence of misconduct in public office”.
Where is the evidence that existing legislation is inadequate?
When the Milly Dowler case broke in 2011, a leader in the Times—a News International newspaper—declared that what had been revealed was “police corruption on an industrial scale”. I do not think so. Since that time, the phone hacking investigation has led to the conviction of an editor, two subeditors and three journalists or specialist hackers on a News International newspaper, and 101 journalists, some very senior, have been arrested, as opposed to 26 police employees, all very junior. Twelve more trials beckon.
The oddity of the clause is: what if you substituted some other professions for this legislation about police officers? What if we put journalists or parliamentarians instead of police officers in the clause, or even NHS dentists, because they can be convicted of corruption? Would the House support that? The police are far from being without fault and police corruption is an evil thing, but this legislation has no rationale at all and has the feel of a populist reaction to the wrong target.
Lastly, I turn to a different matter. Is the Minister aware that there are roughly 200,000 children in the United Kingdom with one parent currently in prison? That is three times the number of looked-after children, who, in old money, are children in care. During their lifetime, boys who have had a parent imprisoned—I wonder whether the Minister knows this—are three times more likely to be convicted of a crime than their peer group, as well as having many more poor life outcomes. Are the Minister and the House aware that no state agency has a duty to inform those responsible for education or social work that a child’s parent has been imprisoned? There is therefore no reason for a head teacher or any other teacher to know that a child’s parent has been imprisoned and, because the other parent will probably be ashamed to explain it, that position will not change officially. However, the likelihood is that the child’s playmates will find out that the child’s father or mother is in prison, and the effect on that child and the bullying that will follow will be awful.
Is the Minister aware of the campaign entitled “Families Left Behind”, which is backed by Barnardo’s, the Prison Reform Trust and the NSPCC, among many others? The campaign is to introduce a statutory duty on courts to ask whether an individual facing a custodial sentence or being remanded in custody—after, I should emphasise, not before that decision is taken so as not to influence the decision—has a dependant, to ensure that the child’s welfare is considered by statutory agencies. Whether or not he is aware, I would ask for a conversation with the Minister about whether the Bill would be a suitable vehicle for such a statutory duty to be included in Committee. I do not believe that such a proposal has significant resource implications downstream—and downstream it may massively reduce reoffending. I hope he will agree.
EU Council June 2014
My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“With permission, Mr Speaker, I would like to make a Statement on last week’s European Council.
Before turning to the appointment of the next Commission President, let me briefly report back on two other points. First, the Council actually began in Ypres with a moving ceremony at the Menin Gate to mark the 100th anniversary of the gunshots in Sarajevo which led to the First World War. It is right that we should take special steps to commemorate the centenary of this conflict and remember the extraordinary sacrifice of a generation who gave their lives for our freedom. The Government are determined to ensure that Britain has fitting national commemorations, including the reopening of the newly refurbished Imperial War Museum next month.
Secondly, the Council signed association agreements with Georgia, Moldova and Ukraine. These reflect our commitment to supporting these countries as they undertake difficult reforms that will strengthen their economies, bolster their democracies and improve the stability of the whole continent. President Poroshenko joined the Council to discuss the immediate situation in Ukraine. The Council welcomed his peace plan and the extension of the ceasefire until this evening. The onus is now on Russia to respond positively by pressing the separatists to respect a genuine ceasefire, to release hostages and return occupied border posts to the Ukrainian authorities. The Council agreed that if we do not see concrete progress very soon, we remain willing to impose further sanctions on Russia, which would not necessarily require a further meeting of the Council. But the Council will return to this issue at its next meeting, which has now been arranged for 16 July.
Turning to the appointment of the next Commission President, I firmly believe that it should be for the European Council—the elected heads of national Governments—to propose the President of the European Commission. It should not be for the European Parliament to try and dictate that choice to the Council. That is a point of principle on which I was not prepared to budge. In taking this position I welcome the support of the Leader of the Opposition, as well as the Deputy Prime Minister, in opposing the imposition of Jean-Claude Juncker on the Council. I believe that the Council could have found a candidate who commanded the support of every member state. That has been the practice on every previous occasion and I think it was a mistake to abandon this approach this time.
There is of course a reason why no veto is available when it comes to this decision. It is because the last Government signed the Nice treaty, which gave up our veto over the nomination of the Commission President, as well as the Lisbon treaty, which gave the Parliament stronger rights to elect the Commission President. So once it was clear that the European Council was determined to proceed, I insisted that the Council took a formal vote—something that does not usually happen. Facing the prospect of being outvoted, some might have swallowed their misgivings and gone with the flow, but I believe it was important to push the principle and our deep misgivings about this issue right to the end. If the European Council was going to let the European Parliament choose the next President of the Commission in this way, I at least wanted to put Britain’s opposition to this decision firmly on the record.
I believe this was a bad day for Europe because the decision of the Council risks undermining the position of national Governments and undermining the power of national Parliaments by handing further power to the European Parliament. So while the nomination has been decided and must be accepted, it is important that the Council at least agreed to review and reconsider how to handle the appointment of the next Commission President, the next time this happens, and that that is set out in the Council conclusions.
Turning to the future, we must work with the new Commission President, as we always do, to secure our national interest. I spoke to him last night and he repeated his commitment in his manifesto to address British concerns about the EU. This whole process only underlines my conviction that Europe needs to change. Some modest progress was made in arguing for reform at this Council. The Council conclusions make absolutely clear that the focus of the Commission’s mandate for the next five years must be on building stronger economies and creating jobs, exactly as agreed with the leaders of Sweden, Germany and the Netherlands at the Harpsund summit earlier this month. The Council underlined the need to address concerns about immigration arising from misuse of, or fraudulent claims on, the right of freedom of movement. We agreed that national Parliaments must have a stronger role and that the EU should act only where it makes a real difference. We broke new ground with the Council conclusions stating explicitly that “ever closer union” must allow,
“for different paths of integration for different countries”,
and, crucially, respect the wishes of those such as Britain that do not want further integration. For the first time, all my fellow 27 Heads of Government have agreed explicitly, in the Council conclusions, that they need to address Britain’s concerns about the European Union. That has not been said before. So while Europe has taken a big step backwards in respect of the nomination of the Commission President, we did secure some small steps forward for Britain in its relationship with the EU.
Last week’s outcome will make renegotiation of Britain’s relationship with the European Union harder and it certainly makes the stakes higher. There will always be huge challenges in this long campaign to reform the European Union but, with determination, I believe we can deliver. We cut the EU budget. We got Britain out of the bailout schemes. We have achieved a fundamental reform of the disastrous common fisheries policy and made a start on cutting EU red tape. We are making real progress on the single market and on the free trade deals that are vital for new growth and jobs in Britain. My colleagues on the European Council know that Britain wants and needs reform—and that Britain sticks to its position.
In the European elections, people cried out for change across the continent. They are intensely frustrated and deserve a voice. Britain will be the voice of those people. We will always stand up for our principles, we will always defend our national interest and we will always fight with all we have to reform the EU over the next few years. And at the end of 2017, it will not be me or this Parliament, or Brussels, that decides Britain’s future in the European Union. It will be the British people. I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I am grateful to the noble Lord the Leader of the House for repeating the Statement made by the Prime Minister in the House of Commons. First, I associate these Benches with what the Statement says about the importance of commemorating the centenary of the First World War and the sacrifice of a generation who gave their lives for our freedom. I also welcome the references to the association agreements signed with Georgia, Moldova and Ukraine.
I must congratulate the Government on their chutzpah. It is an extraordinary feat to claim that a 26-2 defeat and isolation is both a triumph and a strength. The results might have pleased those in the Conservative Party who favour a Brexit but they were greeted with dismay by business, trade unionists and all those who understand that the future success of our country and our place in the world depend on being part of a reformed European Union. The Prime Minister suggested that by pushing the Council to vote on Friday, he was defending a deeply held principle. I suggest that he was merely trying to defend the reputation of his party and maintain its unity.
The Prime Minister ended up with the candidate who he said would be a disaster for Britain but it could have been so different. A few weeks ago, we had a European Council divided about the presidency of the Commission; last week, we ended up with a European Council united against the Prime Minister. Personality politics might work well in the popular press or among the populists who are peddling fear in our country but they patently do not work among European leaders. They were the ones who might have been won round by discussion and diplomacy, rather than shouting and foot stamping. I understand that at the start of the process Chancellor Merkel said that the agenda of the next European Commission “can be handled by” Juncker,
“but also by many others … At the end, there will be a fairly broad tableau of names on the table”.
I would be grateful if the Leader could explain how the Government think that we reached a situation in which 26 European leaders coalesced around one name.
Personal attacks and threats followed by splendid isolation are a testament to weakness and a lack of tactics rather than strength, while insults such as the one from the Health Secretary, who called the other European leaders cowards, are simply rude. As Chancellor Merkel said in Sweden:
“Threats are not part and parcel of”,
the European spirit and,
“this is not part of the way in which we usually proceed”.
It was not too late to rethink tactics and tone at that stage, but no efforts to change were made. Does the noble Lord agree that leaving the EPP Group nine years ago and the very recent decision by the European conservatives to invite the German AfD, a right-wing opponent of Chancellor Merkel’s CDU, to join their group in the European Parliament were tactics for short-term political gain rather than being in the interests of either his party or our country?
This morning, I had wide-ranging discussions with members of the governing party in Italy and over the weekend I spoke to other European colleagues. It is clear that reform of the European Union is needed and desired by our partners. The Prime Minister suggests that it is only his conviction that Europe needs to change. I assure noble Lords that that conviction is widely shared and has been reinforced throughout the European Union as a consequence of the results of the EU elections. My party also wants reform but the difference between us and the Prime Minister is that we want it for the sake of our nation, while his major preoccupation is to heal the divisions within his party.
I fear that the Prime Minister is trying to appease those in his party who want to leave the EU. They cheered his lack of support because they do not want reform; they just want exit and real isolation. Mr Cameron’s erstwhile friend, the Polish Foreign Minister, was undoubtedly speaking for many when he said in relation to the Prime Minister and his Back-Benchers:
“He is not interested. He does not get it … his whole strategy of feeding them scraps in order to satisfy them is … turning against him …. he ceded the field to those that are now embarrassing him”.
The threat of exit is clearly real but I wonder whether the Leader believes that this somehow increases our influence in Europe. Do guns to the head represent a real strategy that will deliver the reforms which we all desire?
Our membership of the EU is important for jobs and business, as well as strategic action on everything from climate change to terrorism. Yes, we need to ensure reform of the budget, of transitional controls for immigration and of benefits. I am sure that working together with our partners we can secure reforms. Is the Government’s real problem not the fact that there is a gap between what the Conservative’s Brexit faction—or perhaps I should say the Conservative majority—is demanding and what sensible European reform amounts to?
Reform is possible through constructive discussion, but those discussions need to take place in the Council and at all levels in the European Commission, not just within the college. I would be grateful if the Leader could tell the House what plans there are to ensure that we have more Brits working at senior level in the Commission at this crucial time and also at more junior levels, who will feed through to higher levels in due course.
Reforms require successful negotiation, and I fear that the Prime Minister’s negotiating skills have been proved to be sorely lacking and that his strategy is in tatters. The gulf between the demands of those in the noble Lord’s party who want to leave the European Union and what the Prime Minister can negotiate grows ever wider. As the gulf widens, so the drift towards exit will loom larger. That would be disastrous for the future prosperity of our country.
I am grateful for and agree with what the noble Baroness said about the commemoration of the Great War and the extremely serious and growing problems in Ukraine. Notwithstanding everything she said subsequently about European policy more generally, I think we are as one in wanting to find a way forward and to handle that situation as sensibly as possible.
On her main point about the European Council and the outcome for the United Kingdom, the Prime Minister has not pretended, and I have not pretended for one moment, that the appointment of Mr Juncker was what the Prime Minister sought. However, I do not accept the way in which the noble Baroness characterised the Prime Minister’s policy towards the European Union, its future and the coming negotiations. First, I do not accept her characterisation of the situation when she said that the Prime Minister’s negotiations over the past four years in Europe had been unsuccessful. It was Mr Cameron who managed, for the first time, to secure a reduction in the EU budget—something that everyone, not least some members of the party opposite, predicted was not possible to pull off. That kind of negotiation cannot be successfully achieved unless one has alliances and influence and is able to negotiate successfully within the European Union.
I agree with the noble Baroness about the importance of wanting to make sure that our influence going forward is secure and on some of the points she was making about appointments and having British officials working there. It remains the case that the Prime Minister’s wish is to negotiate hard for what he hopes will be a renegotiated agreement with the European Union. He would then be in a position to recommend to the British people that they accept it in a referendum in 2017.
It is clearly the case that the outcome of the discussions over the new president make that task more difficult, but the Prime Minister was faced with a position in which, given the way that the apparent positions of some of our colleagues in Europe changed over time, he could either go quietly and accept the imposition of Mr Juncker and the European Parliament’s land grab or to try to argue the principle. He took the view that rather than going quietly to spare his own blushes, he should seek to make the principled case that it was an appointment that should have been made by the European Council, not the European Parliament. The fact that in the conclusions after the meeting there was acceptance that that decision would be reviewed for the future underlines that the concern about that process is more widely spread than might be suggested by the noble Baroness.
There is also the point that, as it is the case that there needs to be reform, which the party opposite accepts, having as President of the Commission someone who in the past has not been associated very strongly with a reform agenda is not going to make the task easier for Britain. It was clearly the case that the party opposite and my noble friends on the Liberal Democrat Benches shared those principled objections to Mr Juncker’s appointment. The Prime Minister was therefore right to stick to his guns.
There will clearly have to be a lot of hard work to continue to make progress with the reform process. I think some of the wording in the conclusions already signifies the recognition by many of our colleagues that they need to be sympathetic to and make movement on Britain’s concerns. I think the Prime Minister was right to make that case and to stick to principle. He will work hard over the next three years to negotiate the best possible deal for Britain and will then be in a position, he hopes, to recommend it to the British people in a referendum.
My Lords, on the appointment of the new President of the Commission, Mr Juncker, there has clearly been a transfer of power or competence, as the Prime Minister has pointed out, to an EU institution from national Governments. What is the position under the European Union Act 2011, in particular under Section 4(1)—paragraphs (g), (h) and (i)—which I had the privilege of guiding through this House at the time?
I will have a go, although I suspect I may need to write further to be more accurate. My noble friend took the Bill through and enacted it, and I am sure he knows it far better than I do.
My understanding is that the Act applies to changes in the rules that transfer power from Westminster to Brussels. Under the EU treaties, the European Council, acting by qualified majority, shall propose to the European Parliament a candidate for president of the European Commission. In this instance, we believe that the existing rules were pushed to shift power from the European Council to the European Parliament rather than any fresh transfer of power from Westminster to Brussels. That is the distinction. It did not represent a further transfer of power from Westminster. If I have got that wrong, I will make that clear to my noble friend in a letter that I will circulate to the House and place in the Library.
The Leader of the House has spoken of policy and by the use of that word has inferred a strategy in the mind and conduct of the Prime Minister. Was it policy that produced the withdrawal of the Conservatives from the EPP in 2005—thus relinquishing, as they were warned, any degree of influence over the largest group in the European Parliament? Was it policy that made the Prime Minister proclaim his opposition to an individual candidate very early on in this procedure, thus removing any room for Chancellor Merkel or others to negotiate about the final resolution of the position? When the European Commission, the European Council and the European Parliament to varying degrees all favour reform, does the Leader of the House think that that mission is propelled forward by allowing one of his Cabinet colleagues to describe a heroine—a genuine heroine since her earliest years—Angela Merkel as a coward? If these are all policies, what hope is there for the Prime Minister to be the man to negotiate the change that is necessary and welcome in the European Union?
The point I was trying to make was that on policy grounds it was the view of the Prime Minister and others within the European Council that the decision about the next President of the Commission should be taken by the Council rather than by the European Parliament. That was the principled point that he was seeking to pursue. More broadly, in answer to the noble Lord’s question about the policy, if one looks back, the Prime Minister as a matter of policy has sought to influence and move the agenda of the European Union towards growth, jobs and trade deals with the United States, Canada and other countries. One can see, in progress on deregulation and all the rest of it, a shift over a number of years which reflects the policy that he has been seeking to pursue.
My Lords, I first endorse the sentiment expressed by the Prime Minister about the centenary of the conflict which led to the First World War. The question I want to ask is very brief. We keep hearing about the reform agenda. When are the Government going to spell out what this reform agenda is all about? Surely it is inappropriate not to know that particular matter until after the general election. Are we likely to hear what the Prime Minister and the Government have in mind in terms of this agenda?
First, as part of that agenda, the Government are pursuing the general objectives of progress on trade talks and on liberalising markets. This is something the Government have set up, and we have made some decent and solid progress. Other aspects will become clearer over time as the negotiation continues, but the Prime Minister set out the main strands and objectives we are pursuing in a number of areas in his Bloomberg speech. That is the approach to which he has been sticking.
My Lords, would the Minister accept a mild change to the Prime Minister’s Statement that it was a “bad day for Europe”? It was a bad day for Britain in Europe.
I will not go too far down the road of asking the noble Lord how on earth the Prime Minister managed to find himself in Brussels last Friday with only one supporter, but perhaps he could tell us how he found himself in Brussels on Friday with only one supporter and no alternative President of the Commission. It was a little odd to have asked the European Council to reject someone without having the slightest idea about whom they might appoint.
To use a slightly more emollient tone, I do think it was a mistake—and I believe the noble Lord has already begun to comment—not to put all the emphasis on what is called the strategic agenda, which has come out pretty well. The text of the strategic agenda, to which the noble Lord referred, and to which the Prime Minister referred, has some really good points along the lines of a positive reform agenda. If the Prime Minister had put all the weight on that, and not gone for an over-the-top personalised campaign against Mr Juncker, we might have got a bit further. I wish the noble Lord would comment on that.
Finally, I was quite startled to hear that the Government are going to be the voice of all those who voted in protest at the European elections. Are we to be the voice of Golden Dawn? Are we to be the voice of the Front National? Are we to be the voice of UKIP? I hope not. Not in my name, please.
As far as the voice of UKIP is concerned, we have the voice of UKIP here, which I am sure we will hear later. I agree with the noble Lord on his remarks about the strategic objectives and his welcome of the language. There has been some solid progress, which I will not overstate. It is significant that the noble Lord spotted that and, being a fair-minded person, relayed that to the House. There is some good language in there which reflects the kind of reform agenda that not just Britain but other countries are keen to see taken forward.
As for the Prime Minister speaking for the whole of Europe, his point was that the scale of apparent disaffection with the European Union reflected in the recent elections needs to be addressed—and by those who are supporters and champions of the European Union more than anyone else. That was the point he was seeking to make: disaffection from the European Union is clearly evident and growing, and the best way to address it is to have a reform programme that responds to it rather than to ignore the popular discontent that seems to have been expressed.
Does the Minister agree that it is now incumbent upon the Prime Minister to come forward with much clearer detail as to what reforms he wants to see. One of the difficulties that allies and potential allies on the Continent have is knowing what it is exactly that he wants. He talks about reform, but he has not been very specific. Does he also agree that it is very important that the Prime Minister should convince our allies and potential allies on the continent that he wants to bring back a programme that he can recommend to the British electorate and that he is not primarily concerned with trying to reconcile the irreconcilables in our own party? The noble Lord may tell me that the Prime Minister is indeed concerned to bring back a programme he can recommend, but impressions are very important. The impression has gained ground that his principal objective is to reconcile the irreconcilables in our party rather than to conduct a successful negotiation. It is very important that he should push that impression into the background.
I know that the Prime Minister will want to carry out and, he will hope, complete successfully a renegotiation that he can recommend to the people of Britain that he believes is in the interests of Britain. That is not about a party political agenda or management task. In putting that package, whenever it is concluded, to the British people it would clearly need to command the support of the whole of Britain and all of those from any party who want to see Britain remain in a reformed European Union.
I think it is Labour’s turn.
My Lords, does the Leader of the House recall that when a Labour Prime Minister wanted to achieve something at a summit, we arranged for the ambassadors in all the countries of Europe and our Foreign Office Ministers to do some preparatory work to move us in that direction? We also worked through the Party of European Socialists to get all our socialist colleagues into line to support us. Could the Leader of the House explain what the Prime Minister did along those lines?
I will take it very happily from the noble Lord that that was how the previous Government operated. Unfortunately, they also gave up our veto through the Nice and Lisbon treaties. That made the pursuit of our national interest much more difficult in these circumstances.
My Lords, will the Leader of the House comment on paragraph 27 of the conclusions, which seems to give great comfort to the PM about the Commission process as the selection of the President is going to be reviewed? Has he noticed the wording that says it will be reviewed respecting the European Treaties? How is that any different to what was in the Lisbon treaty which referred to taking account of the treaties?. Given that the House of Lords European Affairs Committee warned of this situation in 2008—six years ago—does he not think he needs to tell us a little bit more about the reform agenda, because we will need to prepare the ground for some years before 2017?
My noble friend is right to point us towards that paragraph which contains a number of important points. Her point about the European Council considering the process for the appointment of the President of the European Commission is set out in the way that she says. As it happens, that paragraph also says,
“the European Council noted that the concept of ever closer union allows for different paths of integration for different countries, allowing those that want to deepen integration to move ahead, while respecting the wish of those who do not want to deepen any further”.
That is quite a significant addition to the kind of wording one typically sees in these conclusions. That, in itself, is part of the answer to the point about the influence that Britain is still able to have. On some of my noble friend’s more specific points, if there is anything further I can say about the Select Committee, perhaps I will talk to her about that subsequently.
My Lords, does the noble Lord agree that it is hard to find a normal person who knows why Mr Juncker’s job is so important? Might it create public support for the Government’s EU reforms if they were to reveal the unelected Commission’s role, with its monopoly to propose and execute all EU law and to issue regulations which are binding in all EU countries? Or could it be that the Government share the BBC’s fear that, if the British people understood just how irrelevant this their Parliament has become, and how rotten and anti-democratic the EU really is, their clamour to leave it might become irresistible? If our leaving the EU leads to its collapse, so what? What is the point of it now? One can see the point of NATO, the United Nations and the World Trade Organisation, but what is the point of the EU? Can the noble Lord tell us that?
Not in the time that we have available, when I know a lot of other noble Lords want to get in. It clearly is an important job, and that is why we were determined to try to make sure that the process for appointing the person followed the approaches that we thought were set out in the treaties. However, the Government’s position is not the same as that of UKIP. The Prime Minister intends to work extremely hard over the next three years to try to negotiate a package of measures that he will feel confident in putting to the British people in a referendum, which we aim to hold before the end of 2017.
My Lords, in relation to the Prime Minister’s intentions and aims in this matter, does the noble Lord the Leader of the House recollect that last year in Kazakhstan the Prime Minister made a speech in which he said that he would wish to see the boundaries of the European Union extended eastwards to the Urals? He was not speaking of associate status. Is that still his intention? Is that the policy of Her Majesty’s Government?
My Lords, there are generally a number of countries in discussion with the European Union about becoming members. We have had the signing of the association agreements with Georgia, Moldova and, obviously, Ukraine. There was a discussion at the European Council about Albania being able to apply for status. There is appetite for membership to continue to grow.
My Lords, I express the hope that the Prime Minister will spend some time this summer in bilateral conversations with our friends, colleagues and neighbours in the European Union. Could we bear in mind throughout that isolation is rarely splendid, and is even more rarely successful or sensible?
I say to my noble friend that I know how much time the Prime Minister spends on bilateral relationships with a range of European partners in a range of different fora. I know from my time in Downing Street 20-odd years ago, when the European Union was smaller, how much time the Prime Minister of the day has to spend on those relationships. This Prime Minister will certainly do that, as have all previous Prime Ministers.
My Lords, whether we are in the European Union or not, we shall need the good will of our continental partners. Indeed, we shall need their good will even more if we leave, because we shall then have no more rights or entitlements under the treaty and every arrangement we have with its members will have to be laboriously negotiated. Does the noble Lord agree that in life, and particularly in negotiation, it is always a mistake to personalise an issue if you want your substantive points to be taken seriously? Does he also agree that in life, and particularly in negotiation, it is always a mistake to use public threats and blackmail, because no self-respecting human being feels inclined to make concessions under that kind of pressure? Is quiet, collaborative diplomacy not the best way?
I certainly agree that in normal circumstances, most of the time, quiet collaborative diplomacy is the right way to go. However, there are times at which, if that route does not work, you are faced with a choice of seeking to avoid embarrassment by going quietly, or of saying, “Actually, this is a point of principle about which I feel strongly, and I will therefore put up with that risk of embarrassment by arguing for it”.
On working with colleagues, I agree with the noble Lord’s point. That is how Europe works and how Britain pursues its relationships with other countries. I am sure that we will continue to do that. The noble Lord will already have seen the remarks made by a whole range of European leaders since Friday which demonstrate that they are keen that Britain should remain part of the EU. They understand our concerns and are keen to work with us to see what progress we can make in resolving them.
Criminal Justice and Courts Bill
Second Reading (Continued)
My Lords, I declare an interest as a member of the Joint Committee on Human Rights. Although I find it difficult to find a single theme within this Bill, there is much to commend some of the provisions and measures contained within it.
As a supporter of the No More Page 3 campaign, I note that the Bill terms certain images as “extreme” pornography, and may by amendment refer to “revenge” pornography, to differentiate it from other pornography that, unfortunately, has become so easily available in our society. I support this limit on such pornography, as the cultural effects of such images cannot be underestimated. As the Joint Committee on Human Rights report states, the demand for academic work in this area has often been oversimplistic in requiring strict cause and effect. However, I hold the basic view that if images did not have a substantial effect on individuals’ behaviour and on our culture, the advertising industry would not exist on the scale that it does.
In light of the current media focus on the activity of British citizens in Syria, the increase in sentences in the Bill for various terrorist offences, to enable them to come under the dangerous offenders sentencing regime, is a welcome message to the general public. It seems that the threat of criminal activity of this nature currently exceeds the actual convictions, but it is better to be prepared than to find the judiciary without the necessary powers.
The wisdom that I have seen over three years in your Lordships’ House from many octogenarians means that an increase from 70 to 75 for the maximum age to serve on a jury is long overdue.
From visiting category C prisons, I feel that the need to bring prescription drugs under the drug-testing regime is a loophole that should be closed. Currently, the searches of prisoners for prescription medication in their possession—without the corresponding prescription—are thorough, but I never fail to be surprised at the ingenuity of prisoners in hiding things. Drug testing is of course incontrovertible evidence of possession of these drugs.
The United Kingdom is blessed with some of the best medical care in the world, particularly in our accident and emergency departments. It is often only this care that saves the life of someone hit by a disqualified driver, but they may still end up maimed for life. The culpability of the driving behaviour is the same, and so an offence of causing serious injury by driving while disqualified is also very welcome.
I part company with my noble friend Lord Paddick on mandatory sentencing for the offence of possession of knives. I do not think it is any coincidence that the amendment was put forward in the other place by Nick de Bois and supported by David Burrowes, who are MPs for the Borough of Enfield, which, if one glances over the media, is a borough that has been disproportionately affected by knife crime. The possession of knives is now an even greater menace, particularly to young people, than the possession of guns. The strengthening of the sentencing powers within the Bill is welcome.
Therefore, while this speech further illustrates that the Bill is something of a pick and mix, I wonder whether there has been consideration by Her Majesty’s Government of further issues that could perhaps have been in the Bill. During the tragic murder of Drummer Lee Rigby there seemed to have been a risk that, due to the public nature of the incident, photographs of the armed police involved might have been taken by the public and found their way through Twitter into the public domain. Of course, the police were undoubtedly the heroes in this situation. However, what if the neighbour on the balcony who filmed the aftermath of the shooting of Mark Duggan had a slightly better mobile phone and the armed police could have been identified? Could my noble friend outline whether the police are indeed concerned about such a situation? Perhaps it is covered by other legislation, but I have been unable to find relevant provisions.
I would also be grateful if the Minister could outline whether the Government are satisfied with the current rules around the disclosure of the identity of young people charged with murder. Your Lordships may be aware that, in the recent case of the tragic murder of Ann Maguire in a Leeds school, there appeared to be a loophole in the law that allowed the identity of the offender to be released into the public domain after he was arrested but before he was charged. I would be grateful to note whether the Government wish to enact provisions that would close that loophole.
Finally, I wish to support the principle behind the introduction of secure colleges, whose aim is to remedy the often very poor educational attainment of young offenders, which has been outlined for your Lordships’ House. Enhancing their skills, of course, is one way to reduce reoffending, and having institutions for which this is their primary focus can only be an improvement. However, I would be grateful if the Minister could explain why these institutions would cover the age ranges 12 to 17 and why the reasons for the other institutions within the secure estate being divided between those aged under 16 and those aged over 16 do not apply to this type of institution.
I accept that some of the young people in secure colleges will have the physical strength of an adult, so I fully support the use of the reasonable force as a last resort and for the purposes of preventing harm to that child or to other children. Of course, where such force is used, it should be the minimum necessary. The suggestion that secure college rules can provide for force to be used on children to ensure good order and discipline leads me to worry about the capability of the providers of such colleges if they need such rules. While I appreciate that this education is within the secure estate, Serco or Wates employees able to use force, for instance to make a child stand in an orderly queue for a meal, reminds me of the teaching methods at Lowood Institution for orphans attended by Jane Eyre. I expect that this matter will be the subject of further discussion in your Lordships’ House, and although I am a member of the Joint Committee on Human Rights, I do not believe that I need to pray in aid any of our international obligations so much as the common law. I am proud to say that in all our education institutions, corporal punishment of this nature is a thing of the past and should remain so.
My Lords, I want to go through the Bill and address various points. First, Part 1 is concerned with dangerous offenders, in Clauses 1 to 5 and Schedule 1. The effect of these new offences and new release conditions will be to increase the prison population—an increase of about 1,000 prisoners over the coming period, as the Government said in their impact assessment. When I attended the All-Party Parliamentary Penal Affairs Group around Christmas time, we heard from the Parole Board about the pressure that it is currently under. Given the existing backlog of cases for parole hearings and the Osborn judgment, I think it behoves this House to look very carefully at the Bill in Committee to examine how realistic it is that the Parole Board will be able to meet the increased expectations following the Osborn judgment and the provisions within this part of the Bill.
I move on to Clause 15 and the matter of cautions. I welcome the proposal to restrict cautions to summary and either way offences and to limit the use of repeat cautions. It is of extreme importance that cautions have public confidence. There has been legislation for scrutiny panels—which I have mentioned in previous Bills—to look at whether they are being appropriately administered. Scrutiny panels are being piloted in different parts of the country and I know there are schemes in place to look at the consistency of the various roles of scrutiny panels. It is clear from the legislation that it is for the police to lead the set-up of the scrutiny panels, but it is unclear to whom those scrutiny panels report and what is to be done with their findings. To give the House some idea of the scale of the issue, in the Metropolitan Police area in 2012-13 there were some 70,000 out-of-court disposals, and the current proposal within London is that there will be two meetings of a scrutiny panel each year in each judicial business group area. Therefore, I do not want to be too sceptical, but I am doubtful whether that level of scrutiny is going to be sufficient to assuage doubts about the proper use of cautions.
I move on to Part 2 of the Bill and young offenders, which are dealt with in Clauses 29 and 30 and Schedule 6. As we have heard throughout the afternoon, and Ministers will be very aware, there is near universal opposition to the secure colleges idea. The various pressure groups that contact noble Lords are universally against these proposals. I understand the Government’s objective to reduce the cost of detention training orders and to enhance the educational provision available to young offenders. I understand both those objectives. The objections to the secure colleges will be well known to Ministers: the families of children will inevitably have to travel further to the colleges, and there may well be a mixing of different age groups and ability ranges so the colleges will have to be very carefully managed so that the different elements of the college are appropriately separated. I know the Minister in the other place, Jeremy Wright, has promised to publish secure college rules. I would be grateful if the noble Lord the Minister could say when we might expect to see those and whether we could expect to see them before Committee stage.
I have two specific questions which, so far as I am aware, were not asked in the other place. First, will it be open for secure colleges to take 18 to 21 year-olds? Clearly, they would be managed separately from those under 18, but would it be open for secure colleges to take 18 to 21 year-olds if there was space available? The second question is whether it would be open for local authorities to refer young people to a secure college if they have no criminal conviction. My understanding is that this is the case—rarely but it is the case—in secure children’s homes, but would it be available for the secure colleges?
I spent some of yesterday afternoon looking at the Youth Justice Board’s website. There are 75 youths in custody in the East Midlands and 48 in the east of England. Therefore, when one considers the new build site for Glen Parva in Leicestershire, there is obviously an inadequacy of youths to go to that site, so it is self-evident that the youths would have to come from further away. However, we have had larger dedicated juvenile prisons in the recent past. First, Wetherby could take 360 prisoners plus a further 48 in a special purpose-built unit, but its capacity has now been reduced—mothballed—to about 200, so there is capacity there. Secondly, Hindley became a juvenile-only prison in 2009, with 450 places but because of falling numbers and after four and a half years it was resplit into 248 juvenile offenders and 192 18 to 21 year-old prisoners. The point that I am making is that building capacity is not the central issue, which is surely to provide the enhanced education. The £80 million cost is a lot of money. We do not know where it is coming from, but I suspect that many noble Lords, and certainly many pressure groups, would think that it would be better spent on enhancing education provision rather than building new buildings.
I move on to Part 3 of the Bill and the single justice procedures in Clauses 36 to 40. I agree with the Bill’s proposal that a single magistrate can convict and sentence high-volume, low-seriousness cases; this is when a defendant pleads guilty or agrees to the procedure or does not respond to notifications. I have sat on hundreds of these cases, and I am very glad to agree with the procedure. I say to my noble friend Lord Beecham, who is not in his place, that one magistrate is more than sufficient and you can, under current rules, sit with two magistrates. The Magistrates’ Association has raised a concern that this change in procedure should not be seen by the public as a lessening of the rigour with which criminal cases are dealt with in a magistrates’ court. To this end, the MA has come up with two alternative suggestions, which I may move as amendments in Committee. The purpose of the suggestions is to publish the courts’ list in a readily accessible way so that people can be confident that procedures are going through in a public way.
I move on to the committal of young offenders to the Crown Court, in Clause 41. I welcome this clause, which was introduced at the very last minute in the other place. If the Government have any estimate of the numbers of young people who they think will be sent up to the Crown Court under this provision, I would welcome that information. The Carlile report, which was a very good one, of course went much further than this in terms of trying many more cases concerning youths in the magistrates’ court. But this clause is a welcome step in the right direction.
On Part 3 and the costs of criminal courts, in my view it is wrong in principle that people should pay their court costs; it is the role of the state to provide the court’s services, so the state’s laws can be properly administered. I accept that my point of principle is weak when it relates to rich foreign businessmen who seek to resolve their contractual disputes in British courts. But from where I sit, as someone who regularly sits in magistrates’ courts, a very high proportion of the people I see are poor and on benefits. It is inevitable that imposing a mandatory court cost will make poor people poorer and more likely to plead guilty to reduce the potential court costs. Does the Minister think that that is fair? At the very least, magistrates and judges should have discretion about how much of the court costs are actually applied.
I want to make one comment on judicial review, and specifically on children, who are the most vulnerable. They cannot pursue these matters themselves and I would support any move in Committee that seeks to protect children with regard to judicial review.
Finally, in wrapping up, my noble friend Lord Beecham described this Bill as a pot pourri and then went on to give us a lesson in etymology—that it is not necessarily something that smells nice but could be a mixed pot of meat. We will see which is the correct interpretation in the coming weeks.
My Lords, there are parts of this Bill to be applauded and other parts, alas, to be decried. I for my part particularly welcome the new provisions that place restrictions on the use of cautions. The overuse of these in recent years has gravely weakened public confidence in the criminal justice system. I also welcome the creation of new criminal offences in respect of the ill-treatment or wilful neglect of adults in care homes, the subject of a number of well publicised cases that have deeply and understandably shocked the public.
However, I can only deplore much of what appears in Part 4 with regard to judicial review, the area of law that principally has concerned me over the past 35 years, ever since I was privileged to follow the noble and learned Lord, Lord Woolf, as Treasury Counsel in 1979, before undertaking 28 years of judicial servitude. Necessarily, at Second Reading, one must be selective in one’s focus, and I shall therefore confine myself to comparatively brief comments on four topics only—IPPs, personal injury claims, juries and, finally, the proposed new test for refusing relief in judicial review challenges.
First, on IPPs, the noble and learned Lord, Lord Lloyd of Berwick, greatly to his credit, has for some time past, as we all know, steadfastly been pursuing the cause of these luckless prisoners—and, rightly, he continues to do so. Clause 9(3) returns to the topic, albeit, as I understand it, only for the very limited purpose of extending the Secretary of State’s power under Section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—that is, the power to modify the test to be applied by the Parole Board in deciding whether to release these prisoners—to IPP prisoners in the event that they have once been released and then recalled. Astonishingly, however, the Secretary of State has yet to exercise that power under Section 128, even in relation to the 773 prisoners to whom the noble and learned Lord, Lord Lloyd, referred, those who remain in prison long after their tariff sentences—often less than two years—expired, who were sentenced in the initial period after IPPs were first introduced in 2003, at a time when judges had no discretion but, instead, were under a statutory obligation to pass such sentences. In other words, this is before the 2008 modification of the regime, when it ceased to apply unless there was a tariff term of at least two years, when judicial discretion was to some extent introduced, and, of course, years before this entirely discredited form of sentence was finally abolished in 2012.
At the conclusion of the short debate on this problem back in March, the noble Lord, Lord Faulks, while noting that the Secretary of State,
“has not considered it so far appropriate to exercise the power given to him by the LASPO Act”,
“The sentence itself was clearly ill conceived and its impact was wholly underestimated”.—[Official Report, 27/3/14; col. 700.]
The noble and learned Lord, Lord Lloyd, must be right in saying that Section 128 was specifically enacted to enable this most egregiously ill-treated group of prisoners to be released earlier than they might otherwise hope to be. Frankly, it seems to me deplorable that to this day it has not been exercised. I can see no possible point in now extending it to the new class encompassed by Clause 9(3) if it is never going to be exercised. Surely, what this Bill should be doing is requiring a favourable exercise of the discretion. I hope that the noble and learned Lord, Lord Lloyd, will come back to that and seek to introduce it at Committee stage.
Secondly, I refer to personal injury claims. Like other noble Lords who have taken part in today’s debate, a considerable time ago I had some experience myself in this field. Clause 45 provides basically for the dismissal of personal injury claims if the claimant has been “fundamentally dishonest” in the way he has advanced the claim. For example, let us suppose that a claimant suffers a broken leg through the defendant’s negligence but, having in fact made a full recovery after six months, he nevertheless claims on the basis that years later he still cannot manage to walk 100 yards and fully expects to be disabled for life. If, as sometimes happens, he is then filmed playing football or possibly running a half-marathon, surely we would all agree that that would be clear evidence of fundamental dishonesty. It would surely be right that, instead of being awarded, say, the £5,000 that the claim might have been worth if honestly advanced, he should get nothing—unless, that is, the court thinks that he would thereby suffer substantial injustice.
For my part, in common with the noble Lord, Lord Hunt, but unlike, I fear, the noble Lords, Lord Beecham and Lord Marks, I support this provision. I find myself unpersuaded by the briefing that I suspect many of us will have received from the Association of Personal Injury Lawyers. True, it will be necessary on occasion to argue over whether the claimant’s untruthfulness or exaggerations constitute fundamental dishonesty and perhaps it will be necessary to argue whether dismissing his claim entirely would cause him substantial injustice. However, given the readiness of some these days to treat an accident as a God-given opportunity to make a fortune—“Whiplash Willie”, I seem to recall, was the name of a character played by Walter Matthau in a film some years back—this seems to be a clear steer to how judges should exercise their discretion in the matter. The modest narrowing of an existing discretion is a price worth paying for the discouragement which it is hoped this new provision will provide to those who are inclined or tempted to advance dishonest claims. Again, unlike I fear the noble Lord, Lord Beecham, I see no possible logic in suggesting that this provision should therefore be mirrored in regard to the defendant’s conduct of their defence. Surely, on analysis, there is no sensible parallel to be drawn between the opposing cases.
I turn briefly to juries. Clause 56(3), consistently with the recommendations of the Law Commission, rightly introduces a new offence of research by jurors—most typically, jurors using IT to discover, for example, whether a defendant has previous convictions. I support that. However, the Bill says nothing about research into juries, the question broached by the noble Lord, Lord Blair, in March when, as he explained today, he misunderstood the position, as indeed—he hinted at this too—did I. Section 8 of the Contempt of Court Act 1981 bars absolutely all possibility of research into juries. That is a provision with which I am very familiar given that the very reason it was introduced into the 1981 Act was that I myself had failed as counsel then acting on behalf of the Attorney-General in the prosecution of the New Statesman for contempt of court for publishing a juryman’s account of the jury’s deliberations in the Jeremy Thorpe trial. However, I knew nothing at all of any subsequent attempt to mitigate the effect of that section with regard to jury research. As the noble Lord, Lord Blair, today made plain, it seems that nobody else did either, with the possible exception of Professor Cheryl Thomas. Surely the Bill provides a perfect opportunity to correct what to many people will continue to appear to be an obstacle in the law.
I will briefly make a further point on juries. Is it not time to revisit the whole question of mode of trial for serious and complex fraud cases? The trial of such cases by a judge and two lay members chosen for their relevant expertise rather than by a jury would hugely reduce the length and cost of trials and at the same time increase the prospect of arriving at a sound verdict. Surely that, rather than drastically slashing counsel’s fees to a point at which the whole future of the criminal bar is now under grave threat, is the way to achieve economies in the criminal justice system without in any way damaging—on the contrary, it would advance—the fairness of the trial process. Indeed, that would allow more such cases to be brought to be trial, the better to deter the increasing number of those who engage in fraudulent white collar operations. That was the recommendation of the Roskill committee way back in 1986 and it was reinforced by the Auld report in 2001. The subsequent attempts to introduce this provision in Parliament are a sorry story. I suggest that we would do well to follow the course recently taken in the Defamation Act 2013, which by Section 11 provides that libel cases in future are routinely to be tried without a jury.
Finally, I turn to Part 4 of the Bill, which is the part that I regret so deeply and oppose sharply; the Government’s continuing attempt to curb the courts’ power by judicial review to supervise executive action. Regrettably, the Government have already begun to do this in the secondary legislation introduced earlier this year by substantially cutting public funding of judicial review, including, most unwisely, declining to fund leave applications unless they are successful. Now they seek to compound that by lowering the threshold for refusing permission to bring judicial review or, at the end of a hearing, for withholding any remedy—to reduce it from the existing test of inevitability to that of high likelihood.
As others have made clear, there are fundamental objections to that proposal, both in principle and as to the practicalities. So far as principle is concerned, this clause will in future require the court to reject a claim even though the decision may be deeply flawed in point of law simply because it is highly likely, although ex hypothesi not inevitable, that substantially the same decision would be arrived at, even if the matter was to be properly reconsidered and lawfully decided afresh.
Such an approach will allow public authorities to escape responsibility for their unlawful decisions. It overlooks both the central importance of honouring the rule of law and the inevitable feelings of resentment which one must feel, having been refused any remedy despite knowing that the decision taken against one was legally defective. It is worth repeating in this connection a short part of a celebrated dictum from a judgment given nearly half a century ago in the Chancery Division which is true in the context of a breach of the rules of natural justice but is equally applicable to the establishment of any other legal error in the decision-making process. The judgment in the case of John v Rees states:
“‘It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change”.
As to the practicalities, one simply refers, as the noble Lord, Lord Pannick, has already done, to the report of the Bingham Centre in February of this year, which expresses the senior judiciary’s view that the proposed new test,
“‘would necessarily entail greater consideration of the facts, greater (early) work for defendants, and the prospect of dress rehearsal permission hearings’”.
The report continues:
“The proposal thus stands to elongate and complicate the permission stage, by encouraging defendants to file lengthy and detailed evidence, with consequent delay and increased cost to all parties”.
Certainly, there has been an increase in the use of judicial review over the years, but is this such a bad thing? More and more areas of our lives are controlled by public authorities. At the same time, we have become, understandably I suggest, less trusting and certainly less deferential towards those in authority over us. I sometimes wonder whether it did not all start with John McEnroe’s outraged questioning of line calls at Wimbledon way back in the 1970s. However, we should consider how in the long run his behaviour has contributed to the hugely improved policing of those lines that is in operation today. I speak as someone who was lucky enough to be on the centre court on Friday. By the same token, the use of judicial review has to my mind undoubtedly raised the standards of public decision-making in recent years. Alas, technology cannot be deployed to solve disputed calls in the law courts as on tennis courts, but the judges’ supervisory jurisdiction is assuredly the best safeguard that the public have against unlawful executive action and the abuse of power, and the Government most certainly ought not to be legislating to weaken it. Therefore, I join my voice to the many others who have already spoken, and those who are yet to speak, in condemning not only Clause 64 but the further provisions which the noble Lord, Lord Pannick, so powerfully analysed and criticised.
I apologise for taking so much of your Lordships’ time but, in truth, this is a Bill of the first importance and it contains a number of provisions of which we should be decidedly wary.
My Lords, little did I think that I would get to my feet having heard parallels being drawn between judicial review and line decisions at Wimbledon, but I think that my speech will be much more boring than that.
This Bill comes hot on the heels of a previous Bill, now the Offender Rehabilitation Act, which contains important changes such as the new levels of support to be given to offenders coming out of prison, which I support. This Bill in turn looks at the more punitive aspects of government plans, which involve being tough on crime and collectively are likely to put further pressure on our already overstretched prisons and the overworked Parole Board in particular.
These are difficult times for the Prison Service in England and Wales, with rapidly rising numbers, huge budget cuts, significantly reduced staffing levels and disturbing increases in serious assaults and suicide in custody. The Chief Inspector of Prisons, Nick Hardwick, has recently warned of a situation of “political and policy failure”. Although the number of offenders coming into the system over the recent past has decreased, in the past five weeks the prison population has increased by 734 people—the size of a large prison—and now stands at 84,533 souls, while the prison estate as a whole is holding 9,242 more prisoners than it is designed to hold. Cuts to the MoJ budget are due to total £2.4 billion by 2015. Now, like never before, it is time to give priority to alternatives to custody as a matter of urgency, which some of us have been trying to promote for years, and which are far cheaper, with far better outcomes in terms of reducing reoffending. The proposals in the Bill, I suggest, should be tested against these realities.
The scope of the Bill is very wide and I will focus my remarks on the first part of it. Clause 6 deals with electronic monitoring or “tagging”. Used appropriately, it is an effective tool, particularly when coupled with good supervision. However, subsection (3) of this clause gives new powers to the Secretary of State to make tagging mandatory, either by type of offence or type of sentence, thus limiting operational discretion and the flexibility to best suit the needs of individual offenders. These powers can be exercised by order, thereby limiting the role of Parliament to scrutinise, and any provision to guard against inappropriate use is currently vague. The code of practice just states that the Justice Secretary must implement a non-binding code of practice in relation to the processing of data gathered via tagging—in other words, a virtual free hand. The Joint Committee on Human Rights has said that,
“detailed safeguards in the Code of Practice will be crucial to ensuring that the processing of data”—
that is, data gathered in such a way—
“is carried out in such a way that any interference with the right to respect for private life is necessary and proportionate to the legitimate aims pursued”,
thus pre-empting the possibility for human rights to be ignored. The committee suggests that the Bill,
“be amended to make the Code subject to some form of parliamentary procedure”,
to ensure that Parliament has the opportunity to scrutinise the adequacy of the relevant safeguards. I endorse that suggestion since these proposed changes, as they stand, are flawed and do not allow for proper parliamentary scrutiny, as they should do.
In Clause 7, there is a new provision allowing for recalled determinate-sentence prisoners to serve the whole remainder of their sentence in custody, rather than a fixed period of 28 days, as at the moment. This is if it “appears” to the Secretary of State that the prisoner seems highly likely to breach the conditions of their licence—thus punishing a prisoner on the presumption of future behaviour. There will be a new statutory pre-release test for these prisoners by the already overstretched Parole Board, which on top of all its other demands, will have to decide on the “likelihood of breach”, by making the same presumptions as the Secretary of State. It has been suggested that this clause places too much emphasis on the gamble of the likelihood of breach, at the expense of ensuring effective supervision and making a more positive and constructive gamble. In general, the chances of making good in the community are always higher out of prison, rather than in it. Good, effective supervision should always be built into the new release test. I look forward to the Minister’s response to this.
Under Clause 8, the Secretary of State is given the power to change the release test for these prisoners, subject to the affirmative resolution procedure, thus giving him an unacceptable degree of power. Parliament must be able to scrutinise and ultimately oversee all decisions that affect the fundamental rights of citizens, such as depriving them of their liberty. Citizens of this country must be confident that such decisions will always be the responsibility of the courts and not of a single individual—including any politician—who is here today and may be gone tomorrow. Any other way would be quite unacceptable.
Clause 25 deals with knife crime and was included at the last minute in the House of Commons. It includes minimum custodial sentencing for a second conviction. A previous conviction for “threatening” with a knife or offensive weapon will count as a first strike. The minimum sentence is a custodial term of six months for over-18s and a four-month DTO for over-16s. This clause is bound to lead to the inappropriate imprisonment of children and young people, estimated at around 200 children and 2,000 adults per year. The term covers offences ranging from threat and injury to the far less serious one of possession. It is well known that many children and young people in particular carry knives out of fear and in the vain hope of protection, and not to threaten others with the knife—I do not know if it is in vain, but it is certainly done in hope. In fact, possession-related offences have been dropping in the past three years—by 34% for children—and courts already have the powers necessary to deal with repeat offenders. I agree with many others that the measures in this clause are not necessary, could well cause more trouble than they seek to prevent and should be deleted. I sincerely hope that the Minister will give this suggestion serious consideration.
Clauses 29 and 30 deal with secure colleges. This proposal appears dear to the Government’s heart and we are told that considerable work has already gone into the idea. They think it sounds like a good idea, but I agree with the many who think it is a disastrous idea. The plan is that over time these colleges will replace all YOIs, STCs and some secure children’s homes, with the exception of a few for some particularly needy children. The rationale is to cut the costs of detention, and provide a more holistic and educational environment for young people. That sounds good. However, a glance at even the rough detail that is available shows a scenario that is not good at all.
I have a particular interest in this area, as I founded a school for children with special needs about 15 years ago. It is going strong and, I am proud to say, changing lives. It is predicated on being small—with around 35 children aged from 12 to 18 and it will never get bigger—so that every child gets all the individual attention he or she needs. There is no division into houses and it is run as a whole. It is like a family where everyone knows everyone else and its core mantra is, “It’s brilliant to be you”. The children in my school have to learn that they are valuable and worth something. They come from a range of complicated backgrounds, some staying most of the time and others going home at weekends. As I said, we change children’s lives.
A 320-place secure college is, by definition, not going to work, because a small scale is vital. Also, a regime of mixed ages and sexes, with children with extreme challenges in large numbers—however well divided up—cannot meet such children’s needs properly and is an impossible mix. The proposed idea of rules that authorise the use of force to maintain “good order and discipline” is a terrifying thought and bound to fail as well, being contrary to any understanding of best practice among professionals in the field. Is all this also to be delivered on a cut-price budget? That is an insult to the intelligence of the people who might be persuaded to run such a place, who are unlikely to provide anything like appropriate care.
So far there is no evidence of how offending rates will be reduced in the proposed system, how the education and training will work in reality or what the qualifications of the staff might be. For this cohort of children there is consensus among experts that boys should be separated from girls, and older children from younger children. The children are typically the most fragile, vulnerable, frightened—however they might seem otherwise—and poorly educated children. They are needy in so many ways and require an enormous amount of individual attention, patience and support. A culture in which use of force is authorised to enforce good order and discipline is against the law, sets itself up to fail and is, above all, completely abhorrent. It is astonishing that the Government are giving the idea the time of day, let alone allowing it to be the subject of serious debate in Parliament.
This planned pathfinder college would be vast, with 320 places, and it is inevitable that children of all ages will get lost. They would cause greater trouble than ever and find it impossible to have their needs properly met. Given the breadth and depth of need these young children have, and given that the Government are apparently prepared to spend £85 million, let them open, say, five small specialist units around the country and give a few children real help near their own homes. Secure homes are a good model, and that would be money well spent. Otherwise, pathfinder colleges costing £85 million when the MoJ budget is being cut and youth offending teams and other valuable services are being squeezed, would be a grotesque and unacceptable way of squandering our money and doing nothing but harm to our most vulnerable children.
There is a lot of material in this Bill that I have not touched on, but thankfully there are many noble Lords present who will do so much more ably than I, and I have spoken long enough. We will, of course, revisit all these issues during the passage of the Bill, which concerns some of the most challenging and needy citizens in the land.
My Lords, as the Minister said at the beginning of this debate, the Bill makes significant changes to the justice system through measures that create some new offences and reform sentencing and the operation of the courts. It is not a legal aid Bill, but having chaired a commission on the future of advice and legal support in social welfare law—an interest that I declare—I am naturally anxious to probe the potential impact of the Bill on the provision of legal aid.
As regards Part 1—Clause 28 in particular—questions need to be asked about the impact of this package of criminal justice measures, especially new offences and the cost of parole hearings, on legal aid costs. Has a legal aid impact assessment been undertaken, I wonder? Whenever new criminal offences are put on to the statute book, we need to understand whether this will lead to additional demand for criminal defence services and inflation in the criminal legal aid budget. It is important to know this in the current context when legal aid for both civil and criminal work is facing further cuts. Historically, greater pressures on the criminal legal aid budget have led to ever greater cuts in the scope of and entitlement to civil legal aid, since civil problems do not merit the same equality of arms in access to justice under the UK’s human rights obligations.
As regards the proposals for a new model of youth justice provision in Part 2 and the establishment of a new secure training college, what, if any, work has been done on locating support services at the college, such as help with claiming benefits on release, debt advice and housing options? The voluntary sector has an excellent record in successfully delivering such services in custodial settings, but I fear that many such services have been delivered by agencies such as citizens’ advice bureaux extending the outreach of their social welfare law advice services into prisons—sometimes through specific matched-funding formulas between civil legal aid and support from NOMS and probation services. Now that there has been a retrenchment in legal aid for social welfare law, I am worried that such services focusing on prisoners’ needs have declined, and given the changes to the scope of legal aid for prison law issues, the opportunity for advice providers to work with prisoners on a range of needs that might help them to change their offending behaviour seems to be diminishing. Money advice and financial capability support are particularly important for young offenders. Youth Access has consistently demonstrated the value of early interventions in working with troubled teenagers to develop money skills.
This brings me on to wider issues of financial exclusion and criminal justice that are relevant to the provisions of Part 3. The direction of criminal justice policy is for ever greater use of larger financial sanctions and penalties by the criminal courts. In Clause 42 we are presented with new proposals for magistrates’ courts and Crown Courts to impose on defendants mandatory court cost-recovery charges of between £100 and £900. This is in addition to the victim surcharge and any fines or compensation orders imposed. Yet all the social and demographic data that we have show us that defendants in magistrates’ courts are the most financially excluded in society. The MoJ’s own prison population data show that some 68% have been unemployed before conviction, and a survey of magistrates’ court defendants undertaken by Kemp and Souza in 2009 for the Legal Services Research Centre came out with a sample of more than 50% having incomes below £12,475.
Overreliance on financial sanctions in the criminal justice system may explain in part why the MoJ has such a poor rate of fine collection. Sometimes the Government can spend more on the cost of enforcement than they can actually recover in fines and other financial penalties. I note that the impact assessment puts the estimated costs of introducing, administering and enforcing the new criminal courts charge at £20 million a year. Is this really economical if only low rates of collection can be expected? One of the problems is that courts do not have nuanced systems for determining ability to pay, as the magistrates’ courts’ means-assessment form misses out a lot of priority and non-priority debt such as fuel bills and rent arrears.
Clause 44 suggests that the Government’s solution to the enforcement gap is greater discretion for fines officers. However, as appeared when we debated the previous criminal justice legislation, the Crime and Courts Act, these enforcement functions are being increasingly outsourced to the private enforcement industry. That means large private firms of bailiffs, and many noble Lords will have concerns about the methods and record of these firms.
This brings me back to my earlier point about the importance of access to timely and appropriate debt and money advice, and the importance of this sector being able to work within the criminal justice system to help to turn lives around. It has the tools to help people and the means to properly assess, via the common financial statement, how defendants can meet their liabilities on a very low income. A better approach would be to bring money advisers into the magistrates’ courts to run fines clinics and work with the fines officers.
Many other provisions on courts and tribunals in Part 3 merit greater scrutiny, including those on civil appeals and wasted costs. We need to think more imaginatively about how our administrative tribunals are funded and how users are supported. I should like a system to be put in place, for example, whereby tribunals can recover costs from government departments that have shown poor decision-making.
Finally, I turn to the provisions of Part 4 on judicial review. Nothing I can say can begin to match the withering attack directed at this part of the Bill by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Others have commented on how the higher threshold set for granting permission to proceed with judicial review and the new cost liabilities on interveners and third parties could have a significant deterrent effect for citizens and their representatives pursuing their legitimate interests. These provisions, however, must also be seen in the context of some of the recent, post-LASPO, legal aid regulations that have restricted legal aid for pre-permission work in judicial review cases. Even though such cases remain within the scope of legal aid funding, the combined effect of legal aid changes already introduced alongside the judicial review changes in the Bill will surely act to cut a key avenue for citizens who need redress when unreasonable and unlawful decisions are taken by the statutory gatekeepers of welfare benefits, social housing and community care services.
In the time that remains, I want to say something about a group of victims of crime who are often forgotten: the children and adults dependent on offenders sent to prison. They feel isolated and ashamed. Prisoners’ children are often bullied and stigmatised. The experience of witnessing a parent being arrested can be extremely traumatising for a child, who may even be too young to fully understand what is happening or where their mum or dad is being taken. The statistics serve solely to emphasise their vulnerability: they are twice as likely as other children to experience behavioural and mental health problems, and they are three times as likely to go on to commit an offence. There are an estimated 200,000 children with a parent in prison at any one time, nearly three times the number of children in the care system, yet there is no official way of identifying them or ensuring their need for support is met. No one currently asks about them, so nobody looks out for them or cares about them.
The Families Left Behind campaign is therefore calling for a statutory duty to be placed on courts to ask an individual whether they have any dependants when they are sentenced to prison or held on remand. If they do, steps can then be taken to ensure that appropriate care arrangements are in place. They may be children, elderly parents or disabled partners: they are all people who are at risk of being forgotten when their parent or carer is sent to prison. The members of the Families Left Behind campaign and charities such as Barnardo’s, PACT and Partners of Prisoners can all give examples of children who have finished their day at school expecting their mother or father to be there to pick them up, only to find that there is nobody. Why? Because their parent had not expected to go to prison and had not made arrangements for the end of the day, let alone for the rest of their sentence.
An amendment to require courts to ask offenders this simple question and to check whether there are care arrangements in place would give offenders an opportunity to disclose whether they have a dependant. It would then no longer be so difficult to ensure that they get the support they need. Such an amendment would not be resource-intensive. Where care arrangements are already in place, no further action would be necessary. Where they are not, all that would be required would be a referral to a relevant local authority care provider.
The Bill provides an excellent opportunity to make a difference to the lives of these children and adults. It would be a tragic shame if the Government, while toughening up the system of justice delivered to criminals, missed the chance to help crime’s forgotten victims.
My Lords, I may be about to enter the record books for the shortest ever Second Reading speech. My thunder was well and truly stolen by the Minister in his opening speech. I had intended to talk this afternoon at some length—something that I can now spare noble Lords—about the serious problems arising from Clauses 51 and 52 of the Bill on contempt, which, although crafted with the best of intentions, raised profound implications for freedom of expression and the public’s access to information. Instead—duly declaring my interest as director of the Telegraph Media Group—all I have to do is warmly to welcome the Attorney-General’s decision to drop these clauses from the Bill, following a full and frank consultation with media organisations, including the Newspaper Society, the Media Lawyers Association and the Society of Editors, and to praise him for listening to the arguments made, including those of the Joint Committee on Human Rights.
I should add that the whole area of jurors’ potential access to digital archives, which was at the root of those clauses, is of course one that needs to be treated with the utmost seriousness. It seems to me that Clauses 54 to 58 on juror research are a sensible and proportionate way to do that in an online age, as was said by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I should add that the media, too, maintain a great deal of vigilance in this area. All mainstream media organisations take the greatest care, when criminal proceedings become active, not to put material on the front pages and their websites, where such material could create a substantial risk of prejudice. That highly effective system, working alongside the new offences created in the Bill, should serve well the interests of justice, which is our primary concern. That comes in at just over one minute.
My Lords, I am sure everyone in the House will be most grateful to the noble Lord, Lord Black, for that intervention. I fear I am not going to be quite so brief. I will address Clause 28 of the Bill, concerning the possession of pornographic images of rape and assault by penetration. I will support my noble friends Lord Beecham and Lord Kennedy throughout the passage of the Bill.
The Bill amends Section 63 of the Criminal Justice and Immigration Act 2008 to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. Possession of such pornography is an existing criminal offence in Scotland. We on these Benches welcome the Government’s intention to extend the extreme pornography offence. I wish to thank Professors Clare McGlynn and Erika Rackley of Durham University for all the research they have done and the excellent evidence and briefs they have prepared at every stage of the Bill. I also thank End Violence Against Women and Rape Crisis South London for the research they have carried out and the work they have done in their campaign to ban rape porn, which involved writing to the Prime Minister in June last year. I will quote some of this letter, which states:
“The vast majority of images depicting rape are lawful to possess, although they are banned in Scotland under its Extreme Pornography legislation”.
It goes on to say:
“We are talking about sites that explicitly advertise sexually violent content and with titles such as ‘Father Raped Drunk Daughter’ and ‘Incest With Daughter at Family Cabin’”.
Fifty of the top accessible rape porn sites can be found through a Google search. Some 78% advertise rape content of under 18 year-olds—in other words, schoolgirl rape. Some 67% advertise rape content involving knives and guns; 44% advertise rape content involving incest; and 44% advertise rape content where the woman is unconscious, drugged or semi-conscious. Of those being assaulted, 100% are female; 82% of perpetrators use restraint by force; 65% of the women express pain; and 71% show signs of visible distress.
The Government have a coherent strategy on violence against women. In the Bill they recognise the failure of the current law to take a strong stand against the normalisation of sexual violence. Indeed, the Joint Committee on Human Rights says in its report on the Bill:
“We welcome, as a human rights enhancing measure, the provision in the Bill to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. We consider that the cultural harm of extreme pornography, as set out in the evidence provided to us by the Government and others, provides a strong justification for legislative action, and for the proportionate restriction of individual rights to private life (Article 8 ECHR) and freely to receive and impart information (Article 10 ECHR)”.
None the less, criminalising the possession of extreme pornography is a serious matter. Legislative action and any potential restriction of an individual’s rights under Articles 8 and 10 must be taken only if we can be certain that there is sufficient justification. Our liberal democracy rightly champions the values of equality and dignity, which are directly challenged by much violent pornography, especially rape pornography, thus demanding regulatory action. Surely the law has a precautionary role to anticipate, preclude and counter the risk of harm to society and individuals.
There has been in the past a demand for evidence of direct causal links between pornography and sexual violence. I think it is now accepted that that is oversimplistic. Understanding the drivers that lead to the commission of sexual offences is extremely complex and cannot be reduced to simple explanations. Challenging and seeking to prevent sexual violence will require a multifaceted approach, including challenging the normalisation of sexual violence through pornography.
The argument is not that the person who views extreme pornography, such as pornographic images of rape, will then go on to commit rape: rather, it is that the proliferation and tolerance of such websites and images, and the messages they convey, contribute to a climate in which sexual violence is condoned and seen as a form of entertainment. Rape pornography sustains a culture in which a “no” to sexual activity is not taken seriously. It promotes the myth that women enjoy being coerced into sexual activity, and that they enjoy violent, non-consensual sexual activity. The cultural harm posed by such depictions is a strong justification for legislative action and for the proportionate restriction of an individual’s rights.
All this was recognised in the United Nations fourth World Conference on Women report, which refers specifically to depictions of rape as contributing to the context of continuing violence against women. It states:
“Images in the media of violence against women, in particular those that depict rape or sexual slavery as well as the use of women and girls as sex objects, including pornography, are factors contributing to the continued prevalence of such violence, adversely influencing the community at large, in particular children and young people”.
This is also a culture in which, as research for the Children’s Commissioner suggests, young children are turning to pornography for guidance on sex. They are engaging in risky behaviour as a result of viewing pornography. They are uncertain about what consent means and are developing harmful attitudes towards women and girls.
That does not mean that there are not areas which we might hope to explore during the further stages of the Bill in relation to this clause. The first is whether there should be the inclusion of a provision stating clearly that the “realistic” portrayal of acts in question refers to both real and simulated images. We will suggest that we may need an amendment to clarify that exactly. An amendment to this effect was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in the light of an explanation that the Bill’s Explanatory Notes would clarify that the offence,
“would cover both staged and real depictions of rape or other penetration”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]
This may not be adequate, and I would appreciate some clarification, which might appear on the face of the Bill.
Secondly, we might consider the inclusion of a provision requiring reference to be made to the context—the description, sounds and narrative—of the image when determining whether it is one of rape. The context of an image is valuable in determining whether pornographic images are “extreme”. Simulated images of rape are widely available on free-to-access pornography websites. The images are often accompanied by banners and text which glorify rape and sexual violence: “These girls say no but we say yes”; “See what happens when men lose control … whether she says yes or no … Damn, the guys enjoy a ‘no’ more”, for example. The narrative of the story similarly conveys such meaning, as does the soundtrack. This contextual material makes it clear that the image is intended to be of rape and other non-consensual sexual activity. The non-consensual aspect, or what makes an image one of rape, is therefore clear from the overall context.
The Criminal Justice and Licensing (Scotland) Act 2010 includes a provision to ensure that the context of the image—the descriptions or sounds accompanying it—is relevant to deciding whether an image is extreme. This ensures that simulated images of rape come clearly within the remit of the legislation, whether or not the act was itself consensual—that is, whether the actors in the image were consenting.
Thirdly, we need to think about whether we clarify the defence of “participation in consensual acts”. The target of the extreme pornography legislation is not, and should not be, private depictions of consensual sexual activity. Consideration might be given to clarifying the scope of this defence so that it permits the possession of images which are taken of those participating in consensual acts and which are for private use only.
We might also have the inclusion of a “public good” defence. Section 4 of the Obscene Publications Act 1959 includes a defence where the material in question is for the public good. The absence of a “public good” defence in the extreme pornography law reinforces the fear that the provisions could be used to criminalise the possession of legitimate works of art, film and such-like. The introduction of a “public good” defence might demonstrate that there is no intention of bringing educational, legitimate artistic or similar works within the scope of the legislation, and it would help to ensure that only harmful material is covered by the provisions.
Your Lordships’ House may also wish to consider the issue of an image being obscene. The current law provides that for an image to be extreme, it must be one which is,
“grossly offensive, disgusting or otherwise of an obscene character”.
The use of the term “obscene” has long been criticised on the basis that it is typically deployed to catch material which is not only harmful but causes offence or disgust. I would appreciate a discussion on that because I am not clear whether that is an expression that we should continue using.
On the other hand, my honourable friends Diana Johnson, Helen Goodman and Dan Jarvis in the Commons brought forward an amendment which used that description. They proposed it in response to the fact that the Prime Minister has promised to equate online and offline restrictions to regulate pornography. It was a promise that we in the Opposition welcomed and we would like to see it implemented. We think that the Government’s proposals in this Bill are a welcome step forward, but they are quite a small step forward and we would like further clarification.
The Government’s proposal is to ban the possession of pornography which is deemed to be,
“grossly offensive, disgusting or otherwise of an obscene character”,
and a realistic depiction of rape or assault by penetration. Both elements of this test are complex and open to wide interpretation. Therefore, we may propose an amendment which leaves in place the first part of this test and replaces the second part with the description of rape employed by the British Board of Film Classification—that is, content depicting,
“sexual activity which involves real or apparent lack of consent. Any form of … restraint which prevents participants from indicating a withdrawal of consent”.
This simplifies the law in two ways. First, it makes it clear that we are criminalising the possession of porn depicting rape scenes, even if they are staged. Secondly, our amendment would ensure that content was banned if it showed sexual assaults and maybe even rapes but not the act of penetration. Has the Minister had any discussions with the British Board of Film Classification on this matter? I should say that I intend to invite the board to come to the House to discuss these matters with any noble Lords who may be interested.
I am looking forward to the discussions and I am very grateful to the Minister for agreeing to see me to talk about these matters.
My Lords, when I was a relatively young judge, a long time ago, and I had to travel on judicial business, it was suggested by the then Lord Chancellor’s Department that I should travel under a nom de plume for my safety. It was suggested that Mr Sheep would be an appropriate name. I am afraid that I have reluctantly come to the conclusion that, as regards the rule of law, the Lord Chancellor, Mr Grayling, is showing signs of becoming a wolf, so far as clothing is concerned, rather than a Lord Chancellor. The judiciary, I fear, may be the sheep. I hope that he is not doing this deliberately. I believe that he is sincere in his many protestations that he is seeking to fulfil his oath and his special statutory responsibilities, but he has to be judged by his actions, to some of which I am about to refer, as well as his words.
Of course, if the Minister were able to drop Part 4 from the Bill, I could compete—just—with the noble Lord, Lord Black, but there is no sign of that yet. I should make it clear that there are aspects of the Bill that I welcome. There are others about which I have reservations, but it is Parts 4 and 5 that I am really concerned about. They have to be considered against the role of judicial review in our judicial system. I therefore disclose my joint editorship of De Smith’s Judicial Review and Zamir Woolf on declaratory relief. Both volumes make it clear why what is being proposed is contrary to the rule of law. It has been suggested that what is proposed would undermine confidence in the judges and that it might be inspired for that purpose. Again, I hope that that is not the case. However, that might be understood if I explain judicial review in a little more detail than has happened hitherto. I have had a unique opportunity to be involved in the procedure.
The procedures—not the task of a judge scrutinising the Acts or the Executive—go back to 1978, when I had just become a High Court judge after being the “Treasury Devil”, as my noble and learned friend Lord Brown was subsequently. Chief Justice Widgery gave me, together with others, the task of devising a new procedure of judicial review. A handful of nominated judges, of whom I was one, were given the responsibility of hearing these cases in accord with the new procedure. Judging by the number of cases heard, it was a great success. As Lord Widgery said, if you provide a motorway, the public will use it. The old procedure did have advantages until it was swamped. It provided protection for the Executive as well as the public, but a new procedure was desperately needed. The advantages for the public were that judicial review was a means by which their rights could be vindicated, but there was also protection for the Executive. This was due primarily to the requirement for leave to bring prerogative writs, which was adopted into judicial review, and to its discretionary nature, which gave judges powers to mould the procedure so that it would fit the needs of different cases.
The procedure was expeditious because it did away with the need for oral evidence; a case could be dealt with on the papers. Discovery was usually unnecessary because at every stage the procedure gives judges a wide discretion. That is needed. The judge can tailor the procedure to meet the case. It is a remedy of last resort and it cannot be used if there is another alternative. If an application serves no purpose, it is dismissed at the outset. It has been admired by many jurisdictions, but not widely adopted because a requirement of leave would be regarded by many of them as being unconstitutional. In these respects, judicial review has always been tilted against the citizen in a way that other litigation is not. This was done deliberately because of the recognition of the need to protect the Executive. After all, it is the Government’s job to govern.
I have no doubt that if judicial review had not been such a success, there would have been a much stronger movement in this country for an entrenched constitution. It is the discretion of the judges which means that judicial review is at the very heart of the rule of law in this country. This does not mean that the procedure cannot be amended. Of course it can, and it has been amended regularly over the years, including amendments for which I should take some responsibility, and others for which the noble and learned Lord, Lord Brown, should take responsibility. However, it means that if you are going to interfere with the procedure, you must be sure that you understand the danger of the unintended consequences that could result from your actions.
I draw attention here to what has recently happened to legal aid for judicial review, which we have already heard about. If the Government had understood judicial review, they could not possibly have brought in the changes to judicial review legal aid that they have. It is a procedure that is designed to be used by lawyers; it is not one that is designed to be dealt with by individuals acting in person. I fear that judicial review will be less efficient and more expensive because of the action the Government have taken in regard to the provision of legal aid.
I come to the proposals set out in the Bill. They interfere with the ability of a judge to provide, so far as is practicable, a level playing field. So far as it is practicable, the needs of the Executive and of the public are served. There are conflicts, and it is therefore essential that judges should hold the ring. It is quite impossible to anticipate what the cases that come before the courts will require, but the procedure is both wide and flexible. I find it very difficult to understand what possible reason there is that is capable of being substantiated to justify what is set out in Part 4 of the Bill. I fear that it is due to ignorance. That is not an excuse, but it underlines the importance of the need to understand what you are doing. Changes are being made with regard to cuts in legal aid because it is now appreciated that they will not work. I hope that there will be second thoughts on Part 4.
I turn briefly to the statutory provisions. Clause 64 states that the judge “must” refuse leave. That is wholly inconsistent with the requirements of discretion. The present law uses “may”, and there is a world of difference. Under Clause 64, information on financial resources has to be provided by applicants. That is a totally novel idea. As far as I am aware, in no other area is such an imposition put on an application for judicial review. It is just unacceptable. It is a barrier that is out of accord with the rule of law.
Clauses 66 and 67 deal with costs where a party intervenes. Sometimes, but not in many cases, it is very useful for there to be interveners. Under the provisions here, you will not be able to receive any assistance from interveners.
Clauses 68 and 69 deal with capping the liability of an unsuccessful litigant to pay costs. These provisions have been explained very ably by the noble Lord, Lord Pannick, and others. Again, it is an effort by the judges to obtain a level playing field. It is known that applications for judicial review that should be heard in the public interest will simply not be heard and will not come before the courts, to the disadvantage of the public, if litigants have to pay costs they cannot afford. The courts look into the matter and put a restriction on the level of costs for which a litigant is liable so that they have confidence to move forward. However, to do that after the permission stage is pointless because it will never get to that stage. I am at a loss to understand how that could have been suggested.
One of the reasons that has been put forward as a justification for the provisions to which I have referred is that too many cases are going to judicial review. I have to tell the Minister that the number of cases is due largely to incompetence on the part of the Executive and other public bodies. If they did their job properly, there would be no need for judicial review. One of the great virtues of judicial review is that it sets standards. Public servants have to realise that they cannot take short cuts. There was a time, when I was directly involved in these matters, when the standards of the government legal service were exemplary. I am afraid that those standards have dropped through lack of resources and because, unfortunately, civil servants are moved too frequently. In the old Lord Chancellor’s Department, they would remain for the duration of their career. That may not be appropriate for other departments, but it had considerable virtue in the Lord Chancellor’s Department.
I suggest that there is really only one action that the Government can properly take in this case. They should take Part 4 away and look at it again. It should cease to be part of the Bill. If it remains, it will be a blot on the reputation of this Government in terms of their commitment to the rule of law. They should realise that. They should realise that these provisions have been strongly criticised by the judiciary and in this House. Part 4 really is not something that should grace the statute book.
My Lords, it is always a great privilege to follow the noble and learned Lord, Lord Woolf. If ever a wolf showed that he was not a sheep but how to bite with gentle ferocity it was tonight in this House.
My verdict on the Bill is that there is much to support but possibly even more to amend. It is a matter of concern that a Bill has arrived from the other place in such poor order requiring so much amendment. I support in general terms the powerful and excellent speech of my noble friend Lord Marks of Henley-on-Thames and the persuasive remarks of the noble Lord, Lord Pannick. I want to concentrate on two aspects of the Bill that have caused widespread concern. My first point relates to the Bill’s provision for secure colleges, which has been widely discussed, but I want to pick up on a couple of specifics.
I applaud the reduction in the number of minors held in custody in recent times and the work of the Youth Justice Board under the chairmanship of Frances Done. I look forward to an equally fruitful period under my noble friend Lord McNally, whom I am delighted to see in his place and with whom I, along with many others, have already had discussions. He is showing great enthusiasm and a huge appetite to learn about his new post.
My observation during my period as president of the Howard League for Penal Reform persuaded me beyond any doubt about the important role of education within the custodial environment. I will never forget the maths certificates, all at highest grades, that I saw on the wall of a 17 year-old prisoner. When he informed me of his wish to be a maths teacher when he was released and able, as he hoped, to go to university, I asked him, “How was your maths when you were at school outside this place?”. His reply was, “I never went to school, sir”. He had been the beneficiary of excellent education, not on a large scale, but in a targeted way, in a custodial environment where it just so happened that the education was extremely good, at least for him. I agree entirely with my noble friend Lady Linklater that small institutions are best equipped to deal with the multiple needs of young men such as the one to whom I have referred. Indeed, I would also cite the experience and the excellent successes of the now sadly defunct Peper Harow Foundation, which achieved much in the same context and I know is well remembered by a number of Members of this House. I hope that the young man to whom I have referred has now found his true vocation, which was started through good education in custody, and has gone on to university and become a maths teacher.
I absolutely agree with the Secretary of State and my noble friend the Minister this evening that there should be a strong focus on education in custody. However, the cohort of children in custody has complex issues and needs. These were well described by the noble Lord, Lord Ponsonby, and I do not propose to repeat what he said. But what is proposed in the Bill needs to be examined in relation to two particular issues. The first is the size of the institution and above all the fracture from home that such a large institution is likely to cause, by definition, by bringing people possibly hundreds of miles from their homes. The second is the provision for physical restraint as it is described for good order and discipline.
The Government’s commitment to a large institution is, in reality—this is clear from the papers—an economic decision, not one related to the needs of the children in custody. Real concerns have been expressed to us all by many experts about bullying, safety and, above all, resettlement from a large institution distant from home. For this group of offenders, one size simply does not fit all.
Restraint is an extremely important issue, which is dealt with with extraordinary superficiality in the Bill. In 2006, with others, I produced a report for the Howard League on the use of physical restraint on children in custody. It was quite evident that the rules varied from institution to institution and that the techniques for the use of restraint in some places were violent and relied on pain compliance and in others were quite different. What was absolutely clear was that restraint was very rarely needed. In the best institutions, compliance could be obtained by de-escalation techniques, as I think they are generally called—in other words, sitting down and taking the time to talk to the young person concerned about why he or she had kicked off and how the problems could be resolved. That technique leads to a constructive outcome.
The use of pain compliant violence and other forms of physical restraint leads to resentment and trouble in custodial institutions. There was clear evidence when we were doing the Howard League report that kicking off and being restrained was almost a badge of office for young people. It is asking for trouble to allow private sector institutions to form their own rules for the use of restraint. It is just too vague to be credible and it will lead to numerous cases in the courts for damages and, if it is possible, some judicial reviews.
Clause 67, too, has been addressed by a number of Members of your Lordships’ House. It deals with the proposal to make interveners liable for costs arising from their part in public interest legal challenges. I agree entirely with the noble Lord, Lord Pannick, that this proposal is not necessary. The courts already have adequate powers to refuse an application to intervene or penalise inappropriate behaviour by interveners through costs actions. It rarely happens. I have not been able to find a case in which it did happen, because on the whole interventions are constructive. Indeed, the proposal is counterproductive. It will result in deterring parties from intervening, depriving the High Court and the Court of Appeal of important legal and factual information that leads to the right decision. In some of these public interest cases, it is not a game. These are important cases and what matters is doing right to citizens and of course to the Government.
The role of interveners has been praised on many occasions. The noble and learned Baroness, Lady Hale, said in 2013 that the more difficult the issue,
“the more help we need to try to get the right answer”.
She described the potential for interventions to be “enormously helpful”. The noble and learned Lord, Lord Hoffmann, in the case of E v Chief Constable of the Royal Ulster Constabulary in 2008, explained that permission to intervene is given,
“in the expectation that their”—
“fund of knowledge or particular point of view will enable them to provide … a more rounded picture than it would otherwise obtain”.
Interveners add value to the court. They provide the sort of analysis that sometimes is not readily available to the party, such as international comparison. We should remember that it is not only NGOs that intervene; government departments intervene frequently in judicial review cases, principally with the good purpose of protecting the legislation and the policy for which they are responsible. For example, in the case of Yemshaw v Hounslow London Borough Council in 2011, a case that went to the Supreme Court, the Secretary of State for Communities and Local Government intervened in support of a wider definition of domestic violence.
Clause 67 makes sweeping changes to interventions in judicial review cases. It appears to require the court to order that an intervener—and this is incomprehensible to me—must pay the other parties’ costs arising from the intervention. Where another party applies for such an award to be made, the court will have discretion to depart from this rule only in exceptional circumstances. That is absurd, especially when you consider that many interventions are made in writing or by short submissions to the court. The inevitable consequence of this is that charitable and not-for-profit organisations will no longer be prepared to provide their expertise to assist the court in cases of wide public importance. 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?
The senior judiciary, of which we have some very distinguished representatives in this House, some of whom have spoken tonight, has spoken out this year in relation to these proposals. It said:
“The court is already empowered to impose cost orders against third parties. The fact that such orders are rarely made reflects the experience of the court that, not uncommonly, it benefits from hearing from third parties. Caution should be adopted in relation to any change which may discourage interventions which are of benefit to the court”.
There is no need for this new proposal. I agree entirely with the noble and learned Lord, Lord Woolf, that the Government should take this proposal back to the drawing board. The court already has wide powers to penalise parties, including interveners, who act irresponsibly or to award costs against interveners who play a leading role. There is no problem. The Government are creating a problem when it does not exist and does not require a solution. In your Lordships’ House, we can ensure that that consequence does not follow.
My Lords, I begin by assuring the noble Lord, Lord Carlile, that Peper Harow, in the name of Childhood First, is alive and well. Indeed, my noble and learned friends Lord Woolf and Lady Butler-Sloss and I have the honour and pleasure of being patrons of the organisation.
I apologise to the noble Lord. I remember it being burnt down and have not kept up with developments since.
The house itself was burnt down, but the organisation is functioning in smaller houses, which is much more effective than having one large house.
I propose to speak only about Part 2 of what was already a vast Bill before other clauses were added during its passage through the other place. That is not to say that I do not have concerns about Clauses 1 to 5, which will add significantly to the work of the already overstretched Parole Board, about Clause 6, which appears to be a badly rushed measure on which the Minister in the other place was unable to provide information, either about its projected cost or its alleged benefits, or about Clauses 7 and 8, about which there must be doubt because the impact assessment seems to ignore the inevitable number of breaches of supervision by short-term prisoners, discussed many times during the passage of the Offender Rehabilitation Bill. I leave Part 4 to my noble and learned friends with great confidence, enhanced by their contributions to today’s debate.
My concerns about Part 2 began with the Government’s published response to the consultation on Transforming Youth Custody, in which I was disturbed both by the lack of detail about the proposed secure college and the phrase in the final paragraph of the ministerial foreword, signed by the Secretary of State and the Deputy Prime Minister,
“we are committed to delivering at pace”.
That suggests that this is a pet project of the Secretary of State, which he is determined to push through as quickly as possible whatever anyone says. My concerns were further fuelled by three things that the Secretary of State said at Third Reading of the Bill in the other place. First, he said:
“We are not a Government who legislate without taking into account the views of Parliament”.
That claims sounds a little hollow when I recall the deliberate denial of parliamentary scrutiny of the reordering of probation. Secondly, he said that,
“the rules that underpin the secure college provisions will be subject to public consultation. They were published during the passage of the Bill to benefit from the wealth of expertise within the youth justice sector”.
Bearing in mind their importance, as mentioned by the Minister, it is essential that this House sees and scrutinises those rules. I therefore ask the Minister why they have not been available to the House before we start work on the Bill. Thirdly, he said:
“I urge the Opposition to think again before they play politics with the future of young people”. [Official Report, Commons, 17/6/14; cols. 1070-71.]
Like many other noble Lords, I welcome the Government’s stated ambition of creating secure educational establishments where core learning skills, vocational training and life skills will be the central pillars of a regime focused on educating and rehabilitating young offenders. I also welcome the acceptance of the measures introduced by the Children and Families Act for the treatment of those with special educational needs. As an independent Cross-Bencher, my opposition to this proposal is nothing to do with party politics, but entirely based on my practical experience as Chief Inspector of Prisons, when I inspected every young offender institution, and many secure training centres and secure children’s homes, in England and Wales. I found good establishments and bad establishments. What united the good ones was that their governors were trying desperately to achieve what the Government state to be their ambition, while regretting that their attempts were hampered by a lack of resources, including time—the average length of sentence being a bare 78 days. My inspection experiences and my subsequent involvement with the youth justice system lead me totally to disbelieve the maths of the Government’s claims and to ask the Minister: first, whether there are any maths; secondly, on what they are based; and thirdly, why they have not been made available for us to scrutinise.
Having seen many wise, dedicated and experienced governors try and fail to squeeze more out of their pint pots, I have to admit that what I dislike most about this proposal is the presumption, based on no evidence, that private sector companies working for profit can come in and do what experienced professionals have failed to achieve, in larger establishments, with larger catchment areas and at less cost. Such a presumption suggests that no one has worked out the cost of essential custodial educational staff/offender ratios, because, if they had, they would have realised that the cost of ensuring there are sufficient skilled custodial staff is bound to have an impact on the provision of purposeful activity and vice versa. The risks that private sector companies take with staff numbers in adult prisons are simply not acceptable when they are responsible for safeguarding this vulnerable age group.
The proposal also confirms that pace has encouraged the rejection of the unanimous advice from experts that small establishments are far better and safer if anything is to be achieved with this particular group, and for the need to preserve the principles of maintaining closeness to home, development of good family contact and links to the local authorities of children in care. If pace means commissioning £85 million of limited funding on an unsubstantiated proposal before it has been scrutinised and approved by Parliament, without knowing whether it is possible to implement what is proposed, it is better described as playing with the future of young people.
The Minister said that the commission to build would not be confirmed unless and until the Bill receives Royal Assent. I submit that it is bordering on contempt of Parliament for the Government to announce the award of the £85 million pathfinder contract to Wates to build what they describe as a purpose-built 320-place secure college on a site at Glen Parva in the East Midlands before the Bill has completed its passage through Parliament and without any idea about the requirements of the educational contract whose delivery the build is meant to facilitate. Far from it being designed to satisfy secure college aspirations, Wates has been commissioned to build what was agreed for a young offender institution on the same site in 2009 but subsequently not built. The Minister’s mention of Titan prisons reminded me that it was Wates that told me of Jack Straw’s infamous direction that they were required “to hold as many people as possible as cheaply as possible”. I hope that the same has not been directed by the Secretary of State in connection with the proposed secure college.
Other noble Lords have mentioned paragraph 10 of Schedule 6, which allows staff to “use reasonable force” to ensure “good order and discipline”. I fail to see why this paragraph is necessary, because an independent review of restraint in juvenile secure settings chaired by an eminent adolescent psychiatrist produced admirably clear minimum rules that were accepted and published by the previous Secretary of State. Presumably they are not tough enough for Mr Grayling. I could go on but I will reserve my fire for Committee.
Before that I would like to make an appeal to the Secretary of State through the Minister. Bearing in mind that, thanks to the welcome reduction in numbers, largely achieved by the efforts of the Youth Justice Board, the nature of the child prisoner population has changed from its far wider representation into being a toxic mix of the most violent, troubled and damaged. That change gives him a perfectly valid reason for dropping his proposal and putting it into the aspirational basket. All would not be lost because he could then task the newly appointed director of young offenders, if paragraph 20 of the Government’s response to the consultation is to be believed, to conduct a deliberate and costed examination of what improvement and change was possible with the available resources, including quantifiable evidence to support his claim that secure colleges will reduce reoffending rates and show how such a reduction will be achieved in practice. Meanwhile, in the absence of proof, it would be irresponsible of the Government to ask this House to rubber stamp this proposal and responsible of them to prove that I am wrong by producing the evidence that justifies the pace with which they are pursuing their proposal with unsubstantiated ambition.
My Lords, my remarks will be directed to Part 4 of the Bill. However, I cannot resist noting how it was exactly this type of Bill—perhaps best described as a Christmas tree Bill which is also introducing new offences—which was the subject of so much stern criticism from the then Opposition in the previous Parliament. Now, of course, the present Government commend the good sense of putting so many disparate elements—I doubt we have had them all yet—into one Bill and then, conveniently, adding more and more offences to the list. One perhaps should not be surprised by this change of heart, but the contrast in attitude is striking.
As to Part 4 and its attack on judicial review, we should not be surprised at all. It is no use claiming, as the Minister did, that these proposals are technical—he did not use the expression de minimis, a mere tidying-up operation, but that is what he perhaps meant—and should be seen just for themselves. Even if they stood alone, they are much more serious than that.
However, the provisions do not stand alone. They are the latest instalment in a series of provisions that are consciously and deliberately undermining our precious system of civil justice and, thus, every citizen’s right to access justice. I agree with what the right reverend Prelate the Bishop of Oxford said in his remarks.
Let us begin with the Government’s first step, taken days after they came to power, to administratively cut back the number of cases in which civil legal advice was available. The numbers declined in the first three years from 485,000 to 293,000. Then, of course, came legislation in the form of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, LASPO. This removed legal aid from the majority of social welfare law advice and, since its implementation exactly 15 months ago tomorrow, the results, frankly, have been devastating—as the Ministry of Justice’s own recently published Legal Aid Statistics in England and Wales 2013-2014 show in painful detail.
It is ironic in the extreme today that, looking back, the underlying message from government Ministers while LASPO was being debated was that Parliament should pass those provisions because there were two safeguards that would protect the poor claimant. One was exceptional cases funding. Noble Lords know now that that is a farce. Of 1,320 non-inquest applications for exceptional funding last year, how many were granted? Sixteen—not one in the field of welfare benefit; not one in the field of housing. Those statistics come from the document to which I referred a moment ago.
The other safeguard, we were regularly told, was judicial review, which was safe in the Government’s hands. Even if there was no legal aid funding any more for benefit, debt or employment advice, there was always judicial review available to all when appropriate and when needed. This House voted down Part 1 many times. It did not like what the Government were doing but eventually it allowed the Government their way. Is it too fanciful to think that one of the reasons it did this was because of the promise of Ministers relating to judicial review?
As the right reverend Prelate the Bishop of Oxford said, eight days after Royal Assent the first judicial review consultation was announced. Of course, LASPO regulations have been debated in your Lordships’ House over the months. The Government were defeated on one but did absolutely nothing about it. Of course, the inevitable attack on judicial review has begun and is now well under way.
The Lord Chancellor’s accusation that judicial reviews are the preserve of left-wing pressure groups, and other such nonsense, has set the background for the scene. Then came the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014, which by negative resolution, unbelievably, radically altered the long-standing principle by saying that unless permission is given, legal aid practitioners will not be paid—unless of course the legal aid authority agreed, which was not likely to happen.
With this one move, as was strongly argued in this House by Peers from across the Chamber on 7 May last in debating the regret Motion of the noble Lord, Lord Pannick, the Government have just changed the nature of judicial review. It will without doubt mean that some claimants, often poor and sometimes disabled, who have a good claim will not be able to find a lawyer to represent them. As the Joint Committee on Human Rights put it,
“the uncertainty and financial risk for legal aid practitioners would affect both the number of practitioners willing to carry out public law work and the kinds of cases they would be willing to take on in future”.
Our own House of Lords Secondary Legislation Scrutiny Committee was critical, not least of the level of uncertainty.
That brings us to Part 4 of the Bill. The proposals in Part 4 cannot just be viewed in isolation; they are part of a process that began when this Government came to office and will reach its nadir when the appalling residence test regulations are debated shortly in both Houses. Why have the Government done this? It was not in the manifestos, nor was it part of the coalition agreement, that our system of civil justice should be dismantled so that instead of remaining a gem in our legal crown, it is something which we may soon become ashamed of.
Many noble Lords have linked the judicial review proposals in this Bill with the earlier legal aid proposals: my noble friend Lord Beecham did so in his excellent speech, as did the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Campbell of Surbiton, the right reverend Prelate and the noble Lord, Lord Low. They all linked judicial proposals with earlier legal aid proposals, as did the Bingham Centre in a very telling paragraph. It said:
“The relationship between the judicial review and legal aid proposals is important because it goes to the right of access to justice, which is a key element of the rule of law and which is acknowledged both at common law, as a constitutional right, and by the European Convention on Human Rights. It is well-recognised that the right of access to justice is capable of being curtailed or infringed not only directly, but also by placing recourse to litigation beyond individuals’ financial means. It is equally axiomatic that whatever other valuable mechanisms may exist for protecting the rights and interests of individuals, it is independent courts of law, in a democracy founded upon the rule of law, that stand as the ultimate guarantors of basic legal rights”.
As for judicial review itself, it is worth quoting the noble and learned Lord, Lord Neuberger, President of the Supreme Court. In his 2013 Justice annual lecture, he said on that occasion:
“The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive—central government, local government, or other public bodies”.
He went on:
“While the Government is entitled to look at the way that”,
“is operating and to propose improvements, we must look at any proposed changes with particular care, because of the importance of maintaining JR, and also bearing in mind that the proposed changes come from the very body which is at the receiving end of JR”.
Frankly, there is no serious commentator who supports the Government’s proposals for judicial review. Judicial review is a part of our law well worth defending and it falls on this House to do so.
My Lords, I shall concentrate my remarks on the proposal for the establishment of secure colleges. Before that, I turn briefly to the excellent comments made by the noble and learned Lord, Lord Lloyd of Berwick, who deserves huge admiration—he certainly gets that from me—for his determined pursuit of the issue of life-sentence prisoners and the overuse of that sentence. He suggested that I might have some figures about the use of life sentences in England and Wales, compared with other European countries. I would not wish to let him down, so here are the figures. Per 100,000 of the general population in 2012, the Netherlands had 0.18 life-sentence prisoners, France had 0.77, Sweden had 1.63 and Germany had 3.05. England and Wales had 13.57 without indeterminate sentences; with indeterminate sentences, they had 24.31. As I recollect, the noble and learned Lord and I have said in past debates that there is a peculiar addiction to indeterminate sentencing in England and Wales, and that seems to be continuing.
I now move on to secure colleges. I begin by putting this proposal in the context of youth justice policy. For many years, policy on children and young people in trouble for whom loss of liberty has been deemed to be appropriate has been marked by a range of experiments. These experiments, introduced by enthusiastic government Ministers of all parties, have an aura of “Now at last we’ve found the answer”. The treatment of adults in prison has barely changed in essence for a century, but the treatment of young people changes according to enthusiasms that can be very seductive at the time.
It may be that this happens because there is a strong feeling, which I share, that the number of young people involved in delinquency is so small, and the benefits of turning them from a life of crime so great, that an answer is well worth finding. It is thought that there must be something new that would work. A century ago, a small village in Kent called Borstal became widely known because reformers had the idea of putting young people in trouble with the law into an institution modelled in every way on a public school. The wings were called houses, the assistant governors were called housemasters and there was even a matron. The regime was intended to be kindly and reformative, with teachers, a lot of sport and good relationships between staff and prisoners. It was a seductive idea, which sounded as though it should have been successful. It was not successful, and borstals are no more.
Some noble Lords will remember the short, sharp shock, a detention centre regime announced in 1979 and designed to provide a firm, disciplined, semi-military regime. It was felt that it was a good way of helping an errant teenager turn his life around. It was seductive idea that sounded as though it might work, but the short, sharp shock detention centres faded away, and they are now a small note in history.
The Minister is now trying to seduce us with the idea of secure college for 12 to 17 year-olds, starting with a 320-bed establishment in Leicestershire where, according to Clause 29, the governor will be called the principal and the deputy governor will be called the deputy principal. This establishment will be like a school and will be staffed with by people with the values of education rather than the values of incarceration. Education is very important and a basic right. Young people should have it whether they are imprisoned or not. The noble Lord, Lord Carlile, is right that it is a very good thing if a young person in prison has certificates in maths around his walls. It is a pity that he will never be able to be a maths teacher because of his convictions and his record, but education is undoubtedly hugely beneficial.
Will the secure college produce the results dreamed of? I suggest to your Lordships that it would be wise not to be too easily seduced. We heard the Minister in his fine attempt to persuade the House of the merits of the Bill. I admire his skill in this respect, but he must have suspended disbelief when he had to argue that each custodial place for a young offender costs £100,000 a year, 70% of them go on to reoffend within 12 months and, therefore, we shall set up a secure college. That is a non sequitur. There is no logic whatever in proceeding from saying, “We spend a lot; when they come out they are convicted of another offence; the answer is to spend £85 million on an establishment in Leicestershire which will, in theory, have an educational ethos”.
I should add that the Minister did not say in this House, as the Lord Chancellor said in another place, that the cost per head per year will be £60,000 and that, according to the impact assessment, the aim is to,
“reduce the overall cost of youth custody, focusing in particular on driving down the cost of the most expensive provision”.
I am very grateful to the noble Lord, Lord Ponsonby, for the research he presented to us, making it clear that this proposal has no logic in terms of custodial places where they are needed and in what numbers—no logic at all.
Although we spend £100,000 a year, the reason why seven out of 10 of those on whom the money is spent are reconvicted is that the money is not spent well enough to affect the deep-seated damage that most of these children and young people have suffered in their young lives. The highly respected deputy children’s commissioner, Sue Berelowitz, told the Public Bill Committee on 11 March that in all her many visits to young people in custody, she had,
“never yet met a young person … who did not come from a very troubled environment, who did not need a lot of intense support and who did not need help in forming relationships”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 11/3/14; col. 6.]
She goes on to describe the best environment for such young people: a small environment where good relationships can be made between young people and staff. The noble Baroness, Lady Linklater, described exactly the sort of environment that is needed by describing to us her marvellous school where the children have to learn that they are valuable and worth something. I hope I have quoted her accurately.
This proposal takes us backwards. Thanks to the excellent work of the Youth Justice Board in recent years—I, too, warmly welcome the appointment of the noble Lord, Lord McNally, and expect great things from him—the institutions have become somewhat more child-centred and based on good relationships. To be particularly applauded is the reduction in the numbers in custody.
Before I end, there is one more matter I must raise. In this debate, we must get on the record the names of Adam Rickwood and Gareth Myatt. At this point I must pay tribute to the noble Lord, Lord Carlile, whose work to draw attention to the ill treatment of children and young people in custody has been untiring and hugely effective. Few people may now remember Adam Rickwood, except perhaps a few lawyers, judges, experts in the care of children and, I hope, some Members of your Lordships’ House. He was 14 when he died, having, as a judge said,
“the mournful distinction of being the youngest person to die”,
in custody in the UK. He died after he had been restrained by four prison staff because he refused to go to his room and had had administered a blow to his nose—a technique in use at the time to regain control by inducing pain. He hanged himself with his shoelaces from a curtain rail. The outcome of Adam’s death was the revelation that force to restrain children held in secure training centres, with the addition of inflicting pain, was being used to get young people to obey orders contrary to the secure training centre rules. Eventually the courts ruled that using force to restrain young people to preserve good order and discipline was in breach of the European Convention on Human Rights.
Let me remind the House also of Gareth Myatt, a 15 year-old boy sent to custody in 2004 for the first time. He was small for his age—four feet and 10 inches tall, weighing six and a half stone. He was restrained because of a dispute over the cleaning of a toaster. Three staff restrained him using force; he said he could not breathe. He became unconscious and died of asphyxia. That technique used by the staff was never used again. Following the deaths of these two children, it was some small consolation to their families that lawyers went to court and won their cases, and the methods of restraint were changed. It helps to think, after such an injustice, that at least this will not happen to someone else’s child.
I hope that the Minister has heard the contributions to this debate, about the use of force on children in detention and the need for stringent restrictions on its use. I look forward to making the Bill better in Committee.
My Lords, that was a powerful and salutary speech to have to follow.
At the Second Reading of the Serious Crime Bill, I confess that I was at a loss as to how to speak without asking apparently innocent questions as a painful way of masking criticism. That Bill is causing me relatively little anxiety. Today, winding from the Liberal Democrat Benches, I am at a loss as to how to cover even a small portion of the questions and to do justice to the large number of briefings we have all received which display considerable anxiety. Many of their points have been raised today. It is clear to me that your Lordships will do them justice during the passage of the Bill.
Like others, many of my concerns are about the risk of losing focus on rehabilitation, and of reversing progress that has been made in that area. There is also the issue of resources; that, of course, is not a novel point. There is also the evident unwillingness manifest in the Bill to trust the judiciary. Reducing judicial discretion puzzles me. If we want to make the punishment fit the crime, who is better to do so than the person who has heard all the details? I am also concerned about how much of the Bill is there to send messages. We are all aware that this becomes more strident as one gets closer to an election. I hope and believe that this House will consider that the most important thing is producing legislation where legislation is needed—legislation which works.
The House is not short of experts on judicial review and its operation, including the Minister. It is common ground that there has been a proliferation of applications for judicial review; I was interested to see that the number has remained quite steady when immigration judicial reviews are disregarded. If that proliferation is a problem, then it seems to me that the analysis of the problem should start not with the procedures but with why proceedings are thought necessary. I certainly do not want to challenge the tremendously valuable tutorials to which we have been treated this afternoon, but one of the purposes of judicial review is often to achieve transparency and clarity in Executive decision-making, as well as establishing whether there has been an error by the Government or the body in question.
I was in a debate last week on financial support for asylum seekers, a matter on which the court recently found the Home Secretary’s rationale for decision-making was inadequate. I said, and repeat, that I am sorry that the announcement of the Home Secretary’s review following that decision will be made when Parliament is not sitting. There might be less call for judicial review if there was less call for the Government to think again or to express their thinking clearly.
Part 4 of the Bill will be dissected and analysed and will, I am sure, have many other quite rigorous things done to it—but not just by the lawyers. These are citizens’ issues, none more so than the clauses on interveners. The NGOs have an important role and we will—or, I would like to say, we would—lose the benefit of their intervention if the clause were to remain in the form in which we have it now. I look forward to the modifications that the Minister trailed at the start of this afternoon’s debate.
There has been reference, too, to the Lord Chancellor’s powers. I can see that there may be a need to allow for tweaking if practice shows that something is not quite workable, but whether a matter is, for instance, of general public importance seems to me to come close to being a political judgment.
With regard to care workers, the clauses on which were covered my noble friend Lady Barker, I am generally sceptical of the creation of new offences when there are others that would cover the matter, but clearly this has been the subject of very considerable and careful attention. I congratulate my colleagues who ensured that the Bill deals with abuse or “wilful”—which I take to include reckless on the basis of discussions on another Bill—neglect by care workers, and I would put “care” in quotation marks in this context. We are all aware of the scandals that have come to light, though not before much suffering on the part of those who are dependent on others for their care. I am not wholly clear whether issues of whistleblowing, inspection powers and management are all adequately dealt with elsewhere. However reprehensible the actions of an individual worker, it is unlikely that there is not a management issue as well.
Like other noble Lords, I was intrigued by the provisions on “fundamental dishonesty”. I hoped that the Minister might have given us a demonstration of FE Smith’s cross-examination of the claimant, who was asked, “How far can you raise your arm?”, and then, “How far could you raise it before the accident?”—and the witness showed the court. Like the noble Lord, Lord Hunt, I am troubled about the standard of proof and whether the court can still make an award, albeit a reduced one. How does this fit with the context of contributory negligence and of utmost good faith in insurance matters? Indeed, what are the views of the insurers? Not everything is black and white, which of course is why leaving a lot to the judiciary has a lot to commend it because they see all the shades of grey.
Judicial discretion, I would have thought, should be at the heart of dealing with knife crime. The opposition of my party to the knife crime provision has been made very clear for this reason and for the following reasons: whether the threat of imprisonment is effective—a matter that has also been the subject of debate—especially when a knife is carried for protection; the likelihood of knives being passed on to young people, sweeping them into the centre of gang violence; the use of alternative weapons; the impact on stop and searches and the choice of whom to stop and search; and the sheer cost.
As regards secure colleges and education, the demarcation point for the proposed mandatory sentence is the age of 16. Teenage boys up to the age of 18—I should say children because my noble friend Lady Linklater always reminds us that they are children—will, or again would, be affected, and this is the cohort most affected by the new secure colleges. I share the Government’s aim—of course, who could not?—of putting education at the heart of youth custody and, or maybe but, I share the huge concern of so many who work in the field that large institutions whose students, residents, inmates, or whatever we are going to call them, will mostly be 15 to 17 year-old males with all the safeguarding and other risks that this raises.
We have had detailed and to me very persuasive critiques, many of which point us to the risks to rehabilitation of the young people involved. My noble friend Lady Brinton, who wanted to be here this evening but was unable to, has reminded me that learning in offender institutions tends to focus on basic skills—although we are all well aware of literacy and numeracy issues—without any vocational context. Because of their frequent moves, young offenders do not finish courses and the new institution does not receive a proper assessment of where they are on their course. Some seem to do the same course over and over again.
Improving vocational skills levels is a key marker to reducing reoffending. One secure college will not change the culture of learning, or not learning, in custody when children are coming and going at different stages and often far from home. The Prison Minister’s view was that,
“as with free schools it will be for education providers to determine how best the educational engagement and attainment of young people in a secure college can be raised”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; col. 291.]
That does not fill me with confidence that the complexities have been addressed.
Then, of course, in the past few days we have heard that lights will be turned out at 10.30 pm, which does not seem to be a sophisticated, delicate, case-by-case solution. I am surprised that the noble Baroness, Lady Stern, resisted mentioning that in her explanation of how we came to have borstals based on public schools.
Finally, I was glad to hear raised by two speakers the needs and interests of children whose parent is in prison. No doubt, some of them will also be clients of the youth offender system.
Inevitably—or at least it is inevitable to me, at any rate—a Second Reading speech wants to look at what might be changed. In my case, I am afraid that it means that I present criticisms in a rather concentrated form. Other provisions of the Bill will dilute the criticisms and, no doubt, the explanations in discussions to come will dilute them further. But what bears repeating is that what is best for society’s victims and offenders is to stop crimes happening in the first place—and the best way in which to reduce crime levels is rehabilitation.
My Lords, for some inexplicable reason my name was omitted from the list of speakers for this afternoon. However, instead of commencing judicial proceedings for a review against the list-maker, I have accepted an invitation to speak in the gap, against an assurance that the Government Front Bench will not harass me if I stray slightly over four minutes.
I must disclose three interests. First, before I became a special adviser to two Labour Lord Chancellors, I was a solicitor in practice, specialising in planning and property law. Accordingly, I carried out a very large number of judicial reviews on behalf of both claimants and interveners. Secondly, I have personally been involved in judicial review proceedings in local planning matters in Suffolk, the first of which we won and in the second of which nine grounds have been found to be arguable and the case will be heard next month. I do not expect the Minister to wish me well, but I thought that I had better disclose that fact. Thirdly, until lately I was a member of the Select Committee on the Constitution.
Each year the current Lord Chancellor comes before the Select Committee on the Constitution for a discussion of current events. On 26 March, that was Mr Grayling, and one of the topics that we discussed was judicial review. The first question he was asked was: what was the problem that Part 4 of this Bill was designed to solve? He reprised his Daily Mail online article, talking about hundreds of cases becoming thousands and very naughty left-wing campaigners seizing control of the system for their own benefit. We asked him to reveal the hard data to support his allegations and he could not do so, but he repeated the number of anecdotal examples that he had trotted out in the Daily Mail, with one or two additions. However, the data do exist, and they show that the very high rise in numbers was down to asylum and immigration cases. The increase in those cases dwarfed the number of civil cases, which showed only a small percentage increase. As to the serial misuse of judicial review, personally I have never observed such a thing. I was interested to see that the senior judiciary said the same thing in its consultation response.
The permission stage in judicial review is an essential step in the process, whose object, according to the White Book, is to filter out cases that are “hopeless, frivolous or vexatious”. The small increase in the number of civil cases to which I referred may well be explained by the proper operation of the filtering process. However, even if one case goes through on an arguable basis, the substantial hearing often puts that matter right. In my experience, practitioners are well aware that hopeless cases without merit will be stopped at the permission stage, and it would of course be foolish to advise clients to incur wasted costs embarking upon misconceived litigation. Mr Grayling was asked whether he had any estimate of the reduction in the number of judicial review applications when his reforms are—if they are—brought about. He had none. Accordingly, I have concluded—as have many others, including the Joint Committee on Human Rights—that the case for these reforms has not been made.
My second point concerns Clause 64 of the Bill—the “highly likely” test. In judicial review, the fundamental role of the court is to perform a supervisory, not an appellate, jurisdiction. Until now the courts have resisted substituting their own view of the merits of the decision-maker charged by law to make the decision. The court is concerned only to see whether the decision-maker has contravened the law by acting in excess of the powers confirmed upon them. The new concept of “highly likely” is novel and may well fundamentally alter the position. It seems to me that this new concept inevitably will involve judges departing from their traditional role; they will now have to speculate on what decision would have been made absent the defect complained of. Furthermore, the “highly likely” test is to be examined at the preliminary permission stage, which is usually a paper-only exercise, done quickly and without lawyers present. As we have heard this afternoon, the judiciary fears that the new test will lead to a lengthy dress rehearsal hearing, with the service of evidence and oral argument by lawyers. Time taken and costs incurred will inevitably increase. Accordingly, this new provision, far from improving the law, makes matters far worse and seems to me to be designed to obstruct the pursuit of judicial review. It should be completely rejected.
The third point concerns changes to the rules on costs. Because of time I do not intend to say anything about that, except that there will be many amendments and I will support them. Matters should be left to the court, which is the current position, where the judges have discretion as to the nature, extent and cost of any intervention.
I conclude by opposing these proposals. Like the noble and learned Lord, Lord Woolf, I would like Part 4 to be taken away completely. The proposals are based on inadequate evidence; they undermine citizens’ rights to fight the abuse and misuse of power; and it is quite wrong to immunise the Government and other public authorities from effective legal challenge. Judicial review is often a key source of guidance for improving policy development and decision-making in the public service. These proposals do not bring about any improvement and they certainly do not serve the public interest. It is quite the opposite: they undermine it.
My Lords, on looking at the Bill for the first time, I think that many Members of your Lordships’ House will have been struck by the wide variety of issues it seeks to cover, not all of which seem to hang together very well. As my noble friend Lord Bach said, it is a bit of a Christmas tree Bill, on which many baubles have been hung, all of different shapes and sizes—and more and more keep getting hung on it. Generally, the Bill appears to the Opposition to be a rushed piece of legislation, and rushed legislation usually means bad legislation. It will require considerable improvement in your Lordships’ House.
I am in complete agreement with the contributions made by a number of noble Lords in today’s debate, including particularly those of my noble friends Lord Beecham, Lady Thornton and Lord Ponsonby and others. There are elements of the Bill we support, parts of it we think need improvement and parts of it we oppose. We support attempts properly to punish offenders. We also support keeping the public safe from the most serious and violent offenders and the provision of open and transparent justice. However, we do not support the watering down of the important constitutional tool of judicial review or the Government’s plans for a secure college.
The first part of the Bill concerning criminal justice matters has provisions we are content to support to keep the public safe. The scheme for extended determinate sentences for additional terrorist offences is such a provision. However, we have concerns about these additions and the changes to the release arrangements for people convicted of serious sexual and violent offences that are highlighted in the Government’s own impact assessment, which states that the sentencing changes will require 1,050 additional prison places, and will increase the workload of the Parole Board with an additional 1,100 hearings per year. Our worry is that the Government are not putting the measures in place to deliver the changes they want to see. These matters will require debate and probing during the Committee stage of the Bill to satisfy your Lordships’ House that the Government have their sums and thinking right.
The Joint Committee on Human Rights made some key observations when looking at the provisions regarding the release and recall of prisoners in Clauses 6 to 13. The committee was right to be unconvinced that the introduction of powers by the negative resolution procedure to enable offenders to be electronically tracked was adequate, and to recommend that the Bill should be amended to make the code subject to some form of parliamentary procedure to ensure that Parliament has the opportunity to scrutinise the adequacy of the relevant safeguards.
Clause 14 regarding the mandatory drug testing of prisoners and the creation of a power for the Secretary of State to specify in secondary legislation drugs that are not controlled under the Misuse of Drugs Act 1971, for which prisoners can be tested, is a sensible move and should help to deal with drug misuse in prisons.
Clauses 15 and 16 make changes in respect of the use of cautions and stop their use for all indictable-only offences and certain specified either-way offences. Will the noble Lord, Lord Faulks, tell the House in his response why the Government think that the negative resolution procedure is acceptable in respect of the specification of the either-way offences, as I am more of the view that this should be done by the affirmative resolution procedure to give Parliament the opportunity to scrutinise further what is being proposed?
I think that we have all been horrified at reports of the ill treatment, abuse and wilful neglect of vulnerable people who have been entrusted to the care of others. With the provisions listed in Clauses 17 to 22, the Government seek to close the loophole that Professor Don Berwick identified in his review of the events that took place at the Mid Staffordshire NHS Foundation Trust, but they were added late during the passage of the Bill through the Commons and will require considerable probing and testing. I find it odd that these proposals do not extend to volunteers. This, I believe, is a serious omission. You have only to look at the activities and offences committed by Jimmy Savile, while he was acting as a volunteer at a number of NHS and other establishments, to be concerned that these proposals are in themselves inadequate and do not go far enough. I hope that your Lordships will amend the Bill accordingly so that what is agreed will give the maximum protection to vulnerable people in the care of others, be they employees or volunteers.
The murder of a police or prison officer is one of the gravest offences that can be committed and the whole-life tariff in Clause 24 sends a powerful message of how much we value these public servants and place the highest value on their safety. The noble Lord, Lord Blair, made a powerful point when he talked about the role of the courts in handing down sentences for the murder of police or prison officers, and said that Harry Roberts is serving the 48th year of his prison term for murdering police officers.
I am sure that we will return to the issue of possessing a bladed weapon in public or on school premises. We supported the amendment in the Commons, with Back-Bench Conservative MPs, and we will support it in this House as well. It sends out a strong signal that carrying a bladed weapon is serious and has serious consequences if you are caught for a second offence. The noble Lord, Lord Marks of Henley-on-Thames, was right when he expressed concern about the reduction of judicial discretion, but I would point out that the proposals we supported for possessing bladed weapons in public places or school premises do have judicial discretion—unlike the proposals that the Liberal Democrats supported in the LASPO Act for the carrying of a knife, which are mandatory.
The proposals for dealing with offences committed by disqualified drivers are well intentioned, but their adoption, as they stand, would be quite confusing. The law at present is inadequate and needs improving. Perhaps the noble Lord, Lord Faulks, can explain how these proposals will fit in with a review of the road traffic sentencing framework that the Government are committed to carrying out in the next few months, because if there is a review, there could possibly be changes. Will those changes require primary or secondary legislation?
The clause in the Bill concerning malicious communications has the support of the Opposition. As technology becomes ever more sophisticated and can be used to threaten people with offensive and distressing material, we agree that the courts should have tough powers at their disposal to deal with offenders. My noble friend Lady Thornton made a powerful argument about what needs to happen in the case of extreme pornography and the proposals from the Government need amendment and revision. I hope that the meeting between my noble friend and the Minister will go some way in that respect.
My noble friends Lord Beecham and Lord Ponsonby, and the noble Lord, Lord Ramsbotham, highlighted our concerns about the proposals on secure colleges. These proposals in particular need proper pre-legislative scrutiny. The Minister is right to say that we need to be better at rehabilitating young people, but I am not convinced by what I have heard from him so far today. We on these Benches are not convinced that housing 300 children together on one site—potentially miles away from their family, making visiting difficult and expensive—is a good way to provide a proper education and reduce their propensity to reoffend.
We share the concerns expressed by a number of organisations, including the Howard League for Penal Reform and others. The Government will have to provide much more information and set out their proposals more clearly. Issues such as the use of restraint, concerns about the effects on younger children and the problems that girls will confront in this establishment in particular will need thorough examination. I agreed with all the comments of the noble Baroness, Lady Linklater of Butterstone, about secure colleges, and those of the noble Lord, Lord Carlile.
Moving on, while the section of the Bill on courts and tribunals can be seen as administrative and time-saving measures, we on these Benches have some concerns about the single-magistrate hearings and weakening the principle of justice being seen to be done, and how the system will operate. I look forward to discussing in Committee these further proposals and the ideas from the Magistrates Association that my noble friend Lord Ponsonby referred to. No matter how well intentioned, we have to ensure that we get these right. I am also worried about the proposal for trying to get money out of penniless defendants. As my noble friend Lord Ponsonby said, I have sat as a magistrate for many years. I used to sit on the Coventry Bench when I lived in the city and I can tell your Lordships that imposing fines and court costs that individuals have no hope of ever paying off is a complete waste of time and could actually be damaging.
I am fully in support of people convicted of offences having to pay compensation to victims, fines and court costs, but it must be left to the discretion of the courts to decide what is reasonable and what is not. We have no objection in principle to leapfrog appeals, though it does always follow that every issue of national importance will go straight to the Supreme Court and it may be that in some cases, that will not be the best thing to do. I always thought that the case brought by Lewisham Council and others—and I declare that I am a member of Lewisham Council—about the decision of the NHS to close the A&E at Lewisham Hospital, would end up in the Supreme Court. In the end, having lost in the High Court and the Court of Appeal, the Government decided to draw a line there and instead changed the law to stop other organisations doing what Lewisham Council did.
We generally welcome the proposals to update the jury room process. However, we want to press the Government on what support they intend to give juries, so they can clearly understand their role and what they can and cannot do. Social media have a vast penetration and that will only increase. People can be active on a number of platforms numerous times a day. They may have no idea that they are doing something wrong and that could be a very serious offence.
I have been on a jury only once, and that was about 30 years ago. I do not recall being told very much at all, but there were no mobile phones, e-mail or internet. The noble Lord, Lord Faulks, and many other noble Lords will be much more aware than I am of what is said to juries today. I would hope at a minimum that they can be given clear “dos and don’ts” in writing and a proper briefing from a court official before they enter the courtroom—followed up, if necessary, by the judge at the start of the trial telling them what is and what is not appropriate. We have no objection to raising the age for jury service to 75, and in fact this could be a very positive move. The only thing that I would say is that some account may need to be taken of health issues.
The section that deals with judicial review contains some of the most controversial parts of the Bill and we have serious concerns about these proposals. My noble friend Lord Beecham, the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Woolf, all skilfully highlighted the concerns of many noble Lords in this House. For the Justice Secretary to describe judicial review as a promotional tool for countless left-wing campaigns is a disgrace. The noble Lord, Lord Pannick, repeated the full quote. I accept fully that for the Government, local authorities or other public bodies it can be irritating to have their decisions challenged—but without such provisions, bad decisions can go unchallenged, and that is bad for all of us, for democracy and for civil society.
The noble Baroness, Lady Campbell of Surbiton, made key points when she talked about the use of judicial review, as did my noble friend Lord Bach. It is about holding people to account, and without a written constitution, judicial review is the one important tool for holding the Executive to account. Over the past four years, we have seen cuts to legal aid, limitations on no-win no-fee cases, and threats to the Human Rights Act and the European convention. The proposals here are another attack on the rights of the citizen.
The noble Lords, Lord Faulks and Lord Hunt of Wirral, both referred to the activities of some claims management companies. I have spoken many times in this House about the industry and the problems it can sometimes cause. I am happy to pay tribute also to Kevin Rousell and his claims management team, which does a fantastic job. I should be delighted to put my name to some more amendments that can give him and his team even more power to deal with the problems of this industry.
As I said at the outset, this is a rushed and bad Bill, and we on these Benches will seek to work with others across the House to try to persuade and, if necessary, defeat the Government in the Division Lobbies if they will not listen to reasonable argument. I will draw my remarks to a close and I am sure that we will return to these matters in Committee.
My Lords, I said in opening that I anticipated that the Bill would receive scrutiny of the highest order by your Lordships, and this Second Reading debate has given an indication of the level of scrutiny that your Lordships’ House can anticipate where all these provisions are concerned.
It has been a full debate and I will have an opportunity to read carefully all the contributions that have been made—as indeed will the Secretary of State. I hope that noble Lords will forgive me if I do not respond to every single point that was made, time being what it is. If I single out some points, I hope those whose points are excluded will not feel that they have gone unrecognised or that they will not be appropriately responded to in due course. It has been an intensely serious debate, although references to Philip Larkin, John McEnroe and Walter Matthau provided slight light relief during its course. Unfortunately, few noble Lords were as brief or as accommodating as my noble friend Lord Black.
I can, however, begin with what I hope will be one or two reassuring propositions. First, there was a suggestion that there might need to be an amendment to deal with what has been described as “revenge porn”, referred to by the noble Lord, Lord Marks, and my noble friend Lady Barker. There seems to be a great deal in that, and I am happy to meet them and consider any suggestions to include it in the Bill.
I said in opening that I would also consider amendments to satisfy, I hope, some of the concerns about the role of interveners in judicial review proceedings. I do not want to give the House the impression that I am thereby, as it were, handing over a blank cheque, but I am anxious, if possible, to accommodate some of the concerns of many noble Lords in this area.
The noble Lords, Lord Blair and Lord Low, referred to a campaign, if I can call it that, from Families Left Behind and the suggestion that there should be some statutory duty imposed on the sentencing tribunal to take into account the effect of the sentence on those who may be left behind when somebody is deprived of their liberty. In my limited experience as a judge, this, and the consequences thereof, will first of all be considered by a judge in sentencing. The probation service will be aware of the consequences and local authorities have their own duties that will usually be triggered by the information that is available in court. Noble Lords may be right that some slip through the net. I will certainly consider any suggestions along the lines that have been described.
On the question of the meaning of the words “et cetera”, raised by my noble friend Lady Barker in the context of malicious communications, I think it is defined in the Malicious Communications Act 1988. It deals with all the various communications one would expect it to cover in the light of modern media.
The noble and learned Lord, Lord Lloyd, raised, as he has done many times before, the question of IPP prisoners and their plight. I look forward to debating any amendments in that respect in more detail. I responded to a debate on 27 March this year—in some detail, I hope—but I fear I will not be able to satisfy him today. There are no current plans by the Secretary of State to exercise the power to amend the Parole Board’s release test for prisoners serving such sentences.
I noted that the party opposite was silent on IPP prisoners. I am still not quite sure what its position is, and whether it opposes the very fact that the sentencing power was repealed as a result of the intervention of the former Lord Chancellor. I fear that I cannot help the noble and learned Lord for the moment, but I hope he will acknowledge—if not overtly, then tacitly—the fact that Ministry of Justice officials have been endeavouring hard to help him by providing details for the purposes of preparing this speech, and, indeed, any further interventions.
I was not aware that I had the pleasure of a meeting forthcoming with the noble Baroness, Lady Thornton, to describe better the definition of rape on the internet. I look forward to that. I am sure that the Government, the Opposition and all noble Lords have similar intentions where this is concerned. We welcome any advice on trying better to define what the evil is that we all aim to stem.
I respectfully endorse what the noble and learned Lord, Lord Brown, said about personal injury claims and the evil that the Government are trying to eliminate. Frankly, we do not think that a judge will have any difficulty recognising fundamental dishonesty. We are talking not about a schedule that contains some slight exaggerations or minor inaccuracies, but about fundamental dishonesty. If we ask a jury to decide a question of what is dishonest or not, surely we can entrust a judge to decide whether, in appropriate cases, there is fundamental dishonesty. The Government are appalled by the explosion of litigation in claims that involve, frankly, lying and fraud. Whether through the Claims Management Regulator or through this particular clause, I am sure that we share with all noble Lords the desire to reduce, and, if possible, eliminate it.
The redefinition in statutory terms of misconduct in public office was broadly welcomed, although not by the noble Lord, Lord Blair. There are some areas where it may not possibly apply. We do not think that police officers should be singled out, but on the other hand they are in a position where they serve the public in a very high-profile context. We cannot avoid the fact that there have been instances of police corruption. The Government consider that putting a clear offence on the statute book is not to persecute the police or to single them out as opposed to other public employees but to make clear the nature of the offence and, in appropriate circumstances, to provide the basis for a prosecution.
A number of noble Lords asked about the Parole Board and about the impact on its workload of the provision in Part 1. The provisions that will have the greatest impact on the Parole Board are the new discretionary release arrangements for extended determinate sentences and certain child sex and terrorism offences. However, it will be quite some time before the first of these cases starts to filter through the board and we have taken account of that. We are working with the Parole Board to assess the impact of the Osborn judgment. Additional in-year funding has been provided to the board, as well as an increased budget allocation for 2014 and 2015.
The offence of wilful neglect was mentioned by, among others, my noble friends Lord Hunt and Lady Barker. The House is well aware of the background to this offence and why it was considered necessary to make it part of the statute book. I listened carefully to concerns about the range of legislation that may apply in neglect cases and I accept that there may be a degree of overlap. However, where that occurs, it is for the police and the CPS to determine the most appropriate offence to pursue. The CPS regularly provides guidance in this respect. We think that it is far better to close any gap in working practice to arrive at the best solution than to retain even the possibility of any lacunae in the law.
My noble friend Lady Barker had a specific query in relation to Section 44 of the Mental Capacity Act. If I may, I will consider the point that she raised and write to her.
I come to the area of perhaps the most difficulty—the question of secure colleges. The noble Baroness, Lady Stern, said in her excellent and informative speech that it was one thing to point out the number and cost of young offenders who were currently accommodated in various institutions and who reoffended but another to move to the proposition that secure colleges were the answer. I hope that I do not mischaracterise what she said. Equally, one could turn that round and say that those bare facts simply do not justify the status quo. The status quo is not, we suggest, an appropriate response to this dreadful cycle of reoffending. We suggest that secure colleges, with their emphasis on education, are a solution. Of course, no one can guarantee the success of any solution to this recurring problem but we hope that this one will provide a real concentration of education, which most of these young people have never had before.
A number of anxieties were expressed in very firm terms about secure colleges: the question of different ages and different genders, and the possibility that secure colleges will be remote geographically. I will be hosting an open session for interested Peers to share our initial designs for the pathfinder secure college. As I mentioned in my opening speech, we will consult on our approach to the secure college rules ahead of Report.
I was asked whether it was our intention to replace all secure youth accommodation with secure colleges. Our long-term vision is for a network of secure colleges across England and Wales. That transformation cannot happen overnight, and we are committed to improving existing provision for young people in custody.
I very much hope that as a result of no doubt probing amendments and further information, which I shall be happy to provide, your Lordships’ House will share the Government’s vision of secure colleges to deliver high-quality and broad-ranging facilities that can meet the diverse needs—often special needs, I accept—of young people in detention. It requires something that simply cannot be achieved in a small local facility—desirable though such facilities are, as was well described by my noble friend.
Before the noble Lord leaves the point about the network of secure colleges, does it follow that there would be three secure colleges to deal with the whole of England and Wales? There would be around 300 children in each college, making about 1,000 altogether? The noble Lord said that a few secure children’s homes would be retained. Does it therefore follow that there are to be three secure colleges for the whole of England and Wales?
I understand the noble Lord’s mathematics and on the current numbers there would be a logic behind them, but this is a pathfinder college and as such we are not committed to going further. However, it may well be that we will be moving in that direction. If your Lordships’ House or Parliament does not share our vision for secure colleges, the construction of the next generation of facilities will have to take place within the existing framework for young offender institutions in secure training centres. But we believe that a fresh approach and a new framework will provide a better way of ensuring that our planned new institutions educate and rehabilitate more effectively than the existing ones.
A great deal of anxiety has been expressed about the rules, in particular the use of force. In answer to my noble friend Lord Carlile, private providers will not be able to make up their own rules on the use of force, and it is not true that they will be able to do so. Rules on the use of force will be clearly set out in the secure college rules and we have committed to consult not just on the rules but on the content of the rules.
Can the noble Lord confirm that the rules will be subject to parliamentary approval?
They will be part of the consultation in the course of amendment but not specifically subject to parliamentary approval as such. I say that subject to correction, but I think that that is the position. My noble friend Lady Berridge asked about reporting restrictions and made an important point about the youth court. I can confirm that the Government are looking carefully at that particular issue.
The question of juror research was raised by noble Lord, Lord Blair, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I have some sympathy with the point about the need for greater understanding of what is or is not permitted in terms of research into juries. I cannot commit the resources of the Ministry of Justice to provide the information being sought, but I will take this back and try to provide some form of clarity. Professor Cheryl Thomas appears to encounter no difficulty in analysing the information and I think the contrary argument is that any other information tends to be anecdotal. It does seem to me that simply to accept that jury trial is the right answer without proper examination is not a proper approach to this matter. I also note the comments made by the noble and learned Lord about Lord Roskill’s commission all those years ago, and I take his point about the reduction in costs. Sooner or later, viscerally attached though we are in this country to trial by jury, that does not obviate the need to examine and re-examine whether it is appropriate in all circumstances. As he quite rightly said, the Defamation Act 2013 is a recent example of where trial by jury is no longer to be available.
Perhaps I may conclude with some comments on Part 4. To say that this part was not entirely welcomed would be something of an understatement. Noble Lords have made some remarkable speeches in the course of the debate and it is absolutely clear that the relevant clauses will be subject to the degree of scrutiny that one would expect on a series of provisions of this sort. I hope that noble Lords will forgive me if I keep my remarks short and respond in detail to the many amendments that I expect to receive on these matters in due course.
It was suggested that there had not been much growth in judicial review as most of them were either immigration or asylum judicial reviews. I would like to set out to the House that, as is shown in the published national statistics, the number of civil judicial reviews, not including immigration and asylum claims, increased by 27% between 2000 and 2013, albeit that we accept that such claims continue to represent a small proportion of the total number of claims. However, the Government continue to believe that there are fundamental issues with how judicial reviews are brought that require proportionate reform. Although I know there was little support for these changes, I think it was accepted that from time to time this area of law can need examination, re-examination and amendment. I said in opening and I repeat now that it is no part of the Government's approach to this that judicial review is not a vital part of the checks on administrative action, whether on central or local government or other arms of the state. We are concerned by these various provisions to restrict the costs of obtaining judicial review and to ensure that interveners’ participation in reviews is at least more circumscribed than it is at the moment. I accept that interveners can provide valuable assistance in judicial reviews having—I declare an interest—taken part by representing one of the parties and on more than one occasion acting for an intervener. However, there has been a proliferation of interventions. If one looks at reported cases now, almost any case at Appeal Court level appears to attract a considerable level of intervention and some of it is duplicated. It often takes the form of very lengthy skeleton arguments and many volumes of authorities. Although judges do their best to make economic use of the available material, all parties involved in the case are thereby put to the expense of having to deal with the magnitude of the contributions made by interveners.
While I do not reject the proposition that interveners can add value, we must look at the cost consequences of those who use judicial review as a form of campaign. That word was used during the course of the debate by the noble Baroness, Lady Campbell of Surbiton. Campaigning organisations have an enormous value, but it should not be thought that judicial review is simply a method of campaigning. Judicial review is concerned with unlawful activity: it is not just another way of expressing the various objectives of a campaign.
Does the Minister accept that no intervention can take place without the leave of the court? What he is saying is surely somewhat derogatory of the decision of the judges to permit interventions.
My answer to that is that the hypothetical Mr Justice Beecham on a busy list is told that there might be an intervention of one sort. He may not be able to anticipate the level of the intervention that is then forthcoming in terms of its size and the number of others who intervene. The noble Lord scowls, but I am endeavouring to answer his question so perhaps he should not do so. Then, in due course, a hearing takes place by which time an enormous amount of material can be provided and the scope of the case can expand. This is not an evil, but it ought to be controlled. It is difficult without continuity of the judges involved in this to control it in the way that it should be.
Does the Minister accept that it is very important to look at the situation again with regard to these matters of management after the burden of immigration and asylum cases has been removed from High Court judges? They were struggling to keep abreast of those cases and they were deprived of the time that they should now have to look after the proper management of these cases.
I absolutely understand what the noble and learned Lord is saying about that. Such was the volume of their work that it may have been difficult to make the decisions that having more time available would have allowed them to make. I take that point. As I have indicated, the Government are listening on the question of interveners. There is merit behind the Government’s provision and we are looking for the best way of reflecting that in any amendment that finally finds its way on to the statute book.
I make one further point, if the Minister will be patient—I apologise for interrupting him again. Are these matters not best dealt with by discussions through the usual channels between the Ministry of Justice and the judiciary, rather than by going to litigation, which removes the judge’s discretion? I urge the Minister to think about whether this could be achieved in that way.
I am grateful for that advice and, if I may, will perhaps respond no further at this stage.
The information about financial resources is also a matter that will be probed in some detail, although time does not permit me to go into a detailed response on that now. I have heard the arguments that have been raised, and there will no doubt be profitable scrutiny of those provisions.
Judicial review is important but it is not a vase that would be caused to crack by simply touching it. We need to look carefully at the remedy but, none the less, it is one where change should be made.
I said at the outset that I could not cover everything. I have covered, I hope, some of the points that have been made and I look forward to dealing with them all in Committee—if, of course, your Lordships are prepared to give this matter a Second Reading. I conclude my speech by asking the House to give the Bill a Second Reading.
Bill read a second time and committed to a Committee of the Whole House.
House adjourned at 9.32 pm.