74C: Clause 29, page 72, line 18, at end insert—
“(6) Subsection (7) applies to an order under this section the effect of which is to bring into force the Secretary of State’s power to provide secure colleges for the detention of any or all of the following—
(a) persons who are male and aged under 15;(b) persons who are female. (7) A statutory instrument containing the order may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(8) The reference in subsection (6) to the Secretary of State’s power to provide secure colleges is to the power under section 43(1)(c) of the Prison Act 1952 (as inserted by section 29 of this Act).”
My Lords, in speaking to this Motion, for the benefit of the House I should say that, with the agreement of Her Majesty’s Opposition, it is proposed that Motions B and C be put together and be debated together.
As to Motion A, we have spent a considerable amount of time debating the Government’s plans for secure colleges and our ambition to improve the education and reoffending outcomes of young people in custody. I am pleased that, since the last time we met to debate these provisions, which deal with who should be accommodated in secure colleges, the House of Commons has accepted a government amendment to the Bill to give Parliament a vote on the matter. I therefore beg to move that this House does not insist on its Amendment 74 and agrees with the Commons in its Amendment 74C, and I hope that noble Lords will welcome the Government’s response.
Before I go into the detail of the amendment, I take this opportunity to thank noble Lords for the quality of their scrutiny during the passage of the Bill. There have been many hours of informed and passionate debate on the important and sensitive issue of how young offenders are detained and the support that they receive to become rehabilitated. As well as those who featured prominently in our debates, there were other noble Lords who brought their expertise to bear on the issues, whether in meetings, of which there were a number, or in correspondence, and I acknowledge their contributions also. The co-operation that we have encountered has led us to find a compromise, which I am hopeful and even—dare I say?—confident will satisfy noble Lords.
As the Secretary of State and my other ministerial colleagues have made clear throughout the passage of the Bill, we do not want to prevent girls and under-15s in future being able to benefit from the pioneering approach and enhanced provision that secure colleges will offer. We recognise that these groups are more vulnerable and require tailored support, but as noble Lords will know, girls and younger boys are already safely accommodated together on the same site as older boys in both secure training centres and secure children’s homes, demonstrating that such an approach can work well. Our plans for the pathfinder secure college to open in 2017 have been carefully developed, in consultation with a number of noble Lords, to provide separate and tailored facilities for younger and more vulnerable children, should they be placed there. Of course, their placement will always be as a result of the intervention of the Youth Justice Board.
We recognise, however, that there remains concern about the accommodation of girls and under-14s in secure colleges. While I am confident that secure colleges will be able to meet the needs of these vulnerable groups and achieve improved outcomes for them, I appreciate that noble Lords are, and were, seeking further safeguards and a clearer role for Parliament. When this House last considered amendments made to the Bill in the other place, I made a commitment that, before girls or under-15s were introduced to the first secure college, the Government would lay a report before Parliament setting out the arrangements for accommodating, safeguarding and rehabilitating these groups. Today, I am able to go further and am seeking to amend the Bill to make the commencement of the power to provide secure colleges for the detention of girls and under-15s subject to a resolution of both Houses of Parliament. This will give Parliament a clear role in approving the use of secure colleges to detain these groups and will enable that decision to be informed by learning on how secure colleges are operating. The Government will, of course, fulfil the earlier commitment that I made to produce a report, and this will be laid before Parliament ahead of the debates on the commencement of the power in order to provide further detail on the plans and to inform the debate in both Houses.
I hope noble Lords will feel that their concerns have been recognised by the Government and that our response goes some way towards allaying those concerns. I believe that the amendment before the House represents a practical and common-sense solution that provides Parliament with the safeguards it is seeking, while ensuring that the opportunity remains for girls and under-15s to benefit in future from the enhanced provision that secure colleges will deliver. I therefore ask the House to accept this amendment in lieu of its previous amendment.
My Lords, I am content to agree with Commons Amendment 74C and am most grateful to the Minister not only for the way in which he has presented the Government’s change of heart but for his courtesy in giving me and a number of other noble Lords advance warning, by letter and also in discussion, of what it would contain. I say again how much I, and I am sure many other noble Lords, have appreciated the courtesy and admired the skilled advocacy that he has deployed throughout the passage of this Bill. I do not include the Minister in any criticisms that I make of the secure college proposal, on which he and I may not agree, but which I will continue to oppose as strongly as I am able for as long as it takes. As I have said before, I regard the very idea of building the biggest children’s prison in the western world as a stain on our treasured national reputation for fairness, decency and humanity under the rule of law.
I appreciate that the Minister is under the strict riding instructions from a Lord Chancellor whose jurisprudential credibility has been forensically unpicked by my noble friend Lord Pannick and a Secretary of State for Justice who has wreaked havoc on the ability of the prison and probation services to protect the public. With that track record, noble Lords will appreciate why I pray that that same person never gets his way with his pet plan for the detention of vulnerable and damaged children.
At each stage of the Bill, I have drawn attention to some new development or piece of evidence that adds to the strength of the case against the secure college proposal, and today is no exception. First, last week came the welcome announcement that, thanks mainly to the determined efforts of the Youth Justice Board, there are now fewer than 1,000 children in detention. Does it really make sense to hold one-third of them in one place and plan a repeat with yet more?
Secondly, there have been two significant meetings of the five all-party groups, including the penal affairs group, which I co-chair, which are examining the mental health and emotional well-being needs of children and young people under the skilled leadership of the chairman of the children’s group, the noble Baroness, Lady Massey of Darwen, with a view to producing a report. In the first meeting, in addition to a number of primary and secondary school children with mental health and emotional well-being problems, we heard from Professor Colleen McLaughlin of Sussex University of her detailed research into the best ways of supporting children with such problems in schools. Everything she said and subsequently sent me to read is diametrically opposite to the Secretary of State’s contention about his secure college. She makes it abundantly clear that children with such problems can make no educational progress until their health and well-being problems are assessed and tackled, the selection and employment of suitable staff being absolutely crucial to success.
Thirdly, we heard from the Department of Health’s children and young people’s mental health and well-being task force, the formation of which I welcomed at Third Reading. It will soon publish a report on what it has learnt so far about vulnerable groups, among which it includes those in the youth justice system. It confirms that, although it has met with Ministry of Justice officials to discuss general principles and knew about the secure college proposal, it has never been consulted about it. Already it has identified lack of co-ordination between government departments as a key problem area. In one of seven pilots, the Black Country community commissioning groups and child and adolescent mental health services are scoping, mapping and analysing the prevention of large numbers of Black Country children being placed out of area, which presumably includes the secure college, the Black Country being in its catchment area.
Noble Lords may remember that, both on Report and at Third Reading, I asked the Minister to have the secure college proposal referred to the Prime Minister because it appeared to be contrary to the Government’s announced social justice strategy. I also wrote to the Prime Minister after Third Reading asking him to reconsider the secure college proposal in the light of the evidence, eventually receiving a reply that had clearly been drafted in the Ministry of Justice because it contained exactly the same phrases as those used in letters by the Minister. After our vote on 9 December I wrote to him again, once more asking him to look at the confliction between experts and the Secretary of State, quoting in particular the lessons from Clayfields House secure children’s home with its 18% reconviction rate. The Prime Minister replied on 13 January, hoping that I was reassured that the relevant evidence that he listed had been considered. Let me briefly explain why I am not.
First, he said that the Ministry of Justice’s careful analysis reveals no conclusive evidence that the effectiveness of custodial institutions is linked to their size. This saddens me, because it confirms that not a blind bit of notice has been taken of my making the link in many inspections and other reports when I was Chief Inspector of Prisons, nor those of my successors who have done the same, including in some particularly damning reports last year. More worryingly, it shows that neither has any notice been taken of the link being made by numerous experts and practitioners in this country and elsewhere.
Secondly, the Prime Minister said that the needs and characteristics of young people in custody have been closely considered in developing proposals for secure colleges and particularly in designing and planning the pathfinder. Quite apart from noting what experts have said about the lack of consideration of mental health and emotional well-being, far from using a purpose built site, everyone knows that the Secretary of State’s pathfinder has merely been designed and planned to fit into a site for which he already had planning permission for a totally different type of institution. I wonder why we have not heard of this alleged consideration during the passage of the Bill.
I sincerely hope that whenever the educational contracts are let, anyone bidding will be required to confirm that they have taken into account all the available evidence and catered for appropriate staffing to meet the mental health and emotional well-being needs as well as the custodial needs of the cohort of damaged and vulnerable children whom the Secretary of State proposes to send to his secure college. Because he refuses to release the criteria against which these bids will be judged, assuming that there any, or to give any idea of the regime that bidders are expected to provide should their bid win, we shall never know in what way the Secretary of State has taken into account any of the considerations quoted. When has anyone, let alone a Secretary of State, launched a bidding process for a government contract about which so little is known and where that which is known runs so counter to all available advice? Because bids are unlikely to be judged before the election, I hope that that marks the end of the affair.
Commons Amendment 74C effectively rescues boys under 15 and girls. Noble Lords will not be surprised that, while I agree with that, I regret that the Motion is not about the shameful secure college proposal. I hope that proposal will never come to fruition. It is inappropriate, unproven, undeliverable and plain wrong.
My Lords, I share many of the misgivings of the noble Lord, Lord Ramsbotham. However, the fact that the there is to be a report and a draft statutory instrument does go a long way towards meeting many of the concerns over which I pressed my noble friend on the Front Bench at the last stage. I record my warm thanks to him for moving as far as he can, or the Government will allow, in this particular direction.
My Lords, the Minister will not be surprised that I share the misgivings of the noble Lord, Lord Ramsbotham. I shall make only a couple of points, because I think that he has set out the arguments clearly. I thank the Minister for listening to us with care. I wish that he could use his considerable advocacy skills to go back to those who are pressing this and to discuss whether the evidence that we have put forward points to alternative secure provision.
In my time, I have been responsible for accommodating the most difficult children, so I am not someone who denies the need for secure provision of some kind. At the moment we are in total conflict with the work being done by local government—I say this as a vice-president of the Local Government Association—where departments are working really hard with the Youth Justice Board to ensure that young people are accommodated as near to their families as possible. A young person from the south of England who goes to Leicestershire has little likelihood of being able to make any proper contact with his or her family, should that be the plan. I accept that some young people are better separated from their families, but they are the minority. Most young people do better if they have contact with their families, even when their families are difficult.
This geographical spread is going to make it difficult for local authorities to meet their targets in relation to the best care in the interests of these children. It will stand in the way of their officers providing continuity of care that will take these young people into employment and that will make sure that there is family therapy when needed. All these services are local. Having maybe three smaller units that accommodate young people would be of real benefit.
I know that this is difficult, but I would just ask the Minister to go back and suggest that we look at this issue again. It is not that we do not want to look at secure provision, but the proposal for a prison of this size for children is looked on with great disbelief by colleagues whom I talk to internationally. It would be a disgrace to childcare in this country were this to go forward.
Having erupted with virtually no notice into the final stage of the Bill in this House, I repeat the apology that I made to my noble friend after that for your Lordships to hear it. I have not changed my view of the proposals, but I very warmly welcome the wise concession that my noble friend has extracted from the Secretary of State and the department that this will be reviewed again before it becomes law. If it is to come to us again, I would ask your Lordships to study the issue in as much detail as they can and to read the debates which have already taken place on it.
I realise that, in addressing my noble friend, I am technically addressing the Secretary of State and the cohort of civil servants who are advising him. It is they who need to be persuaded that the enlightened and successful way of treating young people in these difficulties is along the lines suggested by the noble Lord, Lord Ramsbotham, and not according to the rather ancient, I am afraid, guidelines against which I remember struggling when I was a Minister the department back in the 1980s. I am most grateful for this concession, which I think gives the House an opportunity to be extremely effective in the next Parliament if this proposal recurs.
My Lords, I will just indicate, first, that I am very much in agreement with those who have praised the Minister on the concession that he has obtained and, secondly, that I am very much in favour of, and support, the words of caution that have been said on the desirability of reconsidering this proposal.
My Lords, as we have already heard this afternoon, widespread concern over the proposal to include under-15s—I think the Minister inadvertently referred to under-14s in his opening—and girls in secure colleges has been voiced repeatedly in debates in this House during the Bill’s troubled passage through the legislative process. I will not rehearse the arguments again, save in one important respect. The numbers involved are small, which, as indicated by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howarth, implies that of necessity the group will contain members coming from even greater distances than the majority of young people who will be housed at Glen Parva—which, it will be recalled, will contain about one-third of the national number of children in detention and will already therefore, on present plans, cover a large geographical area. Thus girls and under-15s—the most vulnerable groups—will be even further from the homes and communities to which they will return.
As we have heard, the Government have at last conceded—no doubt thanks to the eloquent advocacy of the Minister, who does listen carefully to debates in your Lordships’ House—that a final decision will be taken on the basis of the affirmative resolution procedure. So far as it goes, that is of course welcome, although we have to recognise that it does not go very far, since such resolutions cannot be amended. Will the Minister at least accept that there should be separate resolutions for each of the two categories—girls in general and those under the age of 15? That would possibly allow separate decisions to be made in the light of evidence at that time, if it was thought to be necessary, rather than treating both in exactly the same way.
The parliamentary procedure that has now been laid down, after the concession for which we are grateful, will follow consultations. I asked a number of questions about the nature of the intended consultations in the debate of 9 December, to which the Minister in his reply—in fairness, he was replying to many things—made no reference. Therefore, I am constrained to repeat some of those questions.
I asked which organisations or experts supported the proposals, and whether the Government had considered the approaches of the United States and Spain in dealing with these groups, to which the noble Lord, Lord Ramsbotham, repeatedly referred. I asked whether the consultation would take place before the construction of the units that would house these groups, as I feared that if it did not, the process would be seen as something of a sham. I asked who would be consulted, apart from the three bodies cited: the Youth Justice Board, the Inspectorate of Prisons—whose chief inspector, now unfortunately heading for the exit, has criticised the concept—and Ofsted, presumably on curricular matters. I mentioned as possible consultees the Children’s Rights Alliance, the Prison Reform Trust, the Standing Committee for Youth Justice, the Howard League and the eight national women’s organisations which collectively raised concerns about girl offenders.
I also cited the British Medical Association, which published a report on young offenders entitled Young Lives Behind Bars, local authorities, in the light of the fact that children’s services and perhaps other departments would have a clear interest and a responsibility in this area, and the probation service—or perhaps I should say probation services, as what was a single service is now somewhat fragmented. If there is to be meaningful consultation on this important and controversial programme as it goes forward, it should surely extend to such bodies as these. Perhaps the Minister could indicate the Government’s response.
Another matter which must be raised is the Government’s declared intention to press ahead with entering into a contract for this project within weeks of a general election that may lead to a new Government whose hands could therefore be tied in advance. Given that opposition and serious misgivings are widely shared in your Lordships’ House and well beyond—debates have repeatedly confirmed that they are by no means confined to the Labour Benches in this House or the Commons—it would surely be wrong to pre-empt an alternative approach. If it is the Government’s intention to proceed to a letter contract before the election, what, apart from the Lord Chancellor’s impatience, would be the justification for that unseemly haste?
Having said that, I repeat that the Minister deserves the thanks of the House and, more importantly, of those who are engaged in looking after young people, for the concession that has been made, and I hope that, in operation, it will allow due consideration of any difficulties that may be perceived by those with whom consultations will take place before any statutory instrument is laid.
My Lords, I am grateful to all noble Lords for their contribution to this short debate, echoing to a considerable degree the concerns that were reflected in previous debates. I do not seek to diminish their value, but I hope that I will be forgiven for not replying in full detail to all the points made, for example, by the noble Lord, Lord Ramsbotham. His concern and opposition to the Bill has been thoroughly exposed and well articulated. He knows that the Government do not accept his criticisms but of course respect his expertise in this matter.
I am grateful for the acknowledgment that the Government have listened to the concerns expressed both in and outside the House. Although it has not been made explicit today, in previous debates there has been an acknowledgment that the Government’s proposed reforms, however much some noble Lords think that they are misconceived, stem at least in part—we would say centrally—from our aspirations for educating and rehabilitating young people in custody. With 68% of young people who leave custody going on to reoffend within one year, doing nothing is simply not an option. The secure colleges reflect the Government’s vision for transforming youth custody.
Concerns have been expressed today, as in previous debates, about the geographical issue: effectively, that young people may find themselves a long way from home, which may be contrary to their interests. Noble Lords will aware that the YJB operates an assisted visits scheme in the existing youth custody estate which contributes towards travel and subsistence costs for families and carers visiting a young person in custody. The scheme also covers childcare and modest accommodation costs where required. The noble Baroness, Lady Howarth, conceded that not all families want to remain in very close contact with the young people, but, where they do, this has enabled and should continue to enable there to be contact.
We also anticipate that the operators of secure colleges will utilise a range of technological solutions that will allow young people to contact their families more easily. These will be supplementary to, not in place of, the proposed entitlement of one visit per week. We expect providers to forward innovative solutions that address the individual needs of young people in secure colleges, including a visits scheme that enables young people to remain in close contact with their families or carers. In designing the secure college pathfinder, we have considered how we could facilitate visits for young people, and the site has numerous flexible areas where the operator could choose to accommodate visits. Details of the visits scheme, including a booking system and any incentives, will be developed with the secure college operator in due course.
The noble Lord, Lord Beecham, repeated questions that he had asked previously about who would be consulted. The position is that I am not from the Dispatch Box going to commit a future Secretary of State to consult any specific body, but the noble Lord has given the House and any future Secretary of State a useful list of those who might be consulted. I can see that any Government coming before the House seeking approval, through affirmative resolution, would be well advised to consult widely and to provide evidence of that consultation to Parliament.
Apart from the report which I have undertaken on behalf of the Government to provide to Parliament, there will be a report from Ofsted and the Inspectorate of Prisons. However, I bear in mind the advice that the noble Lord has effectively given to any Secretary of State that a number of people could usefully contribute to the consultation—and, no doubt, those who have different views from a putative Government will seek consultation and advice from those bodies and bring before the House their views.
The Government are not guilty of unseemly haste. They have been enthusiastic about continuing to press forward with secure colleges and intend to begin the process of building before the general election. The question that I think lay underneath the questions asked by the noble Lord, Lord Beecham, was whether this was a sensible way to proceed given that a Government not of the current complexion might conceivably not proceed to build secure colleges—indeed, it was said in the House of Commons that the Labour Party, if it was in power, would not do so. The question is what would happen.
Ministry of Justice officials are committed to providing value for money for the taxpayer, which includes ensuring appropriate termination rights in contracts, and the costs attached to terminating a contract, should that happen, would vary depending on when the contract was signed and how far the construction had progressed. The standard termination provision for these types of industry-standard contracts will be included within the commencement agreement. These provisions will represent a reasonable and balanced position for the Ministry of Justice in relation to such contracts and will meet the standards set out in Managing Public Money. The Treasury is considering the pathfinders business case, and this is very much in line with the Government’s process and project timelines. A decision will be made shortly.
The noble Lord, Lord Beecham, also asked whether the Government would bring forward separate statutory instruments in relation to under-15s—not under-14s; I am sorry that I inadvertently referred to under-14s—or to girls. I anticipated that there might be some questions in that regard. The position is that it is probably unlikely that any Government would decide to bring forward such a proposal at the same time—in which case, there would be two separate statutory instruments. However, if it is was prudent and wise to consider whether there was a proper case for addressing under-15s and girls at the same time, on that assumption I do not think that we would bring in separate statutory instruments because it would be perfectly open for Parliament to view them as a whole. That said, I will bear in mind what the noble Lord said and, while not giving any commitment to that effect, I can see that there could conceivably be different arguments that pertain to those different groups. So I respond in that way—I hope positively, but not giving any commitment on behalf of the Government.
I hope that that is a sufficient response to the debate, and that the noble Lord, Lord Ramsbotham, will forgive me if I do not go into the merits of the scheme as a whole, having regard to the responses I have given to various debates in the House and the various meetings that we had with him and other concerned Peers. In those circumstances, I ask noble Lords to join me in accepting the government amendment in lieu of their previous Amendment 74.
102C: Clause 64, page 65, line 3, at end insert—
“(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.””
102D: Clause 64, page 65, line 13, at end insert—
“(3D) The court may disregard the requirement in subsection (3C) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(3E) If the court grants leave in reliance on subsection (3D), the court must certify that the condition in subsection (3D) is satisfied.””
102E: Clause 64, page 65, line 21, for “section 31(2A)” substitute “subsections (2A) and (2B) of section 31”
102F: Clause 64, page 65, line 22, for “applies” substitute “apply”
102G: Clause 64, page 65, line 23, for “it applies” substitute “they apply”
102H: Clause 64, page 65, line 25, at end insert—
“(5B) If the tribunal grants relief in reliance on section 31(2B) of the Senior Courts Act 1981 as applied by subsection (5A), the tribunal must certify that the condition in section 31(2B) as so applied is satisfied.””
102I: Clause 64, page 65, line 40, at end insert—
“(3E) The tribunal may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(3F) If the tribunal grants permission in reliance on subsection (3E), the tribunal must certify that the condition in subsection (3E) is satisfied.””
102J: Clause 64, page 65, line 42, for “section 31(2A)” substitute “subsections (2A) and (2B) of section 31”
102K: Clause 64, page 65, line 43, for “applies” substitute “apply”
102L: Clause 64, page 65, line 44, for “it applies” substitute “they apply”
102M: Clause 64, page 65, line 46, at end insert—
“(6B) If the tribunal makes an award in reliance on section 31(2B) of the Senior Courts Act 1981 as applied by subsection (6A), the tribunal must certify that the condition in section 31(2B) as so applied is satisfied.””
My Lords, as I indicated, Motion B and Motion C will be debated together for the convenience of the House.
These clauses have been the centre of much highly intelligent debate in this House. I am grateful for the scrutiny and valuable insight that noble Lords have given to the Bill, though I firmly hope that today will mark the end of that process for this particular Bill. Our amendments draw on those debates and the many other discussions that have taken place in less formal settings. The general arguments around these clauses are well rehearsed, and I do not intend to detain your Lordships unnecessarily by going over old ground. Instead, I will focus on the Government’s specific amendments, turning first to Clause 64.
Our ambition for this clause is relatively modest: it is simply to limit the time and resources spent on judicial reviews brought on grounds highly unlikely to make a substantial difference to the outcome for the applicant. However, we accept that there have been and are concerns that, exceptionally, even these types of case could engage crucial issues which should be heard by the courts. That is why we have tabled an amendment that permits the court to grant permission or a remedy where it considers that reasons of exceptional public interest mean that that is appropriate.
I accept that “exceptional public interest” is an unusual formulation, and I will limit myself to two observations on this that, I trust, will give noble Lords the comfort they might require as to how it will operate. First, a high degree of public interest specific to the case is required for the exception to be met. We think that that is a fair compromise in the light of my second observation: we have purposely not defined the term “exceptional public interest”, meaning that the judiciary will apply the term in practice to the facts at hand. For fear of appearing to seek to fetter that discretion, I will forbear from setting out further detail on how the Government would wish to see the term applied in future.
I simply add this: in one regard it could be said that it is always in the public interest for a government body, local authority or anybody amenable to judicial review to follow to the letter the law. One can see the force of that argument.
However, that, in a sense, is what public law is all about. It could also be said that simply saying that something is in the public interest is almost tautologous, when we are dealing with a public law remedy. Hence the requirement that there must be “exceptional public interest”—although, as I have said, we think that is a matter for the judges to decide. It will also be for the judges to decide first whether, on the facts of the case, the “highly likely” threshold has been met, and secondly, in appropriate cases, whether there are reasons of “exceptional public interest” which none the less make it appropriate to grant permission or a remedy.
In the Government’s view, the clause does not put judges into decision-makers’ shoes, any more than the existing common law test of “inevitability” does. Both require a judge to have an appreciation of the relationship between the purported breach and the outcome, and I am confident that the clause would not cause judges to consider issues inappropriate to the role that they perform. The Government therefore believe that the clause and the amendments in lieu strike the correct balance between according the judiciary appropriate discretion for exceptional cases and conferring a duty to refuse permission or remedies where it is right to do so.
I come now to the final outstanding issue, which concerns the provision of financial information on an application for permission for judicial review. Our intention with this clause is to ensure that those who fund and control judicial reviews do not avoid the appropriate costs liability arising from their actions. Few can argue with that, and we believe we have brought forward proportionate and sensible provisions to meet that aim.
Again, we have listened to concerns raised about this provision, particularly on the potential for a chilling effect on small contributors. In our previous debate we tabled an amendment requiring that the court and tribunal procedure rules that implement the clause include a minimum threshold for contributions, so that those who contribute an amount below that threshold need not be identified in the information provided to the court. However, on the day of the debate I was unable to give noble Lords the comfort they required over where and how the threshold would be set. To summarise: the reasonable point was made that there is a world of difference between a threshold set at, say, £50 and one set at £1,000 or at some higher level. I still believe it would be inappropriate to decide on a figure without due consideration.
That is why we have taken the somewhat unusual step of tabling the same amendment as we did in December. But today I can give the House much more comfort as to how we will approach setting the threshold. As the Lord Chancellor did in the other place, I can commit to a public consultation, which we will approach with a suggested figure of £1,500 in mind. We are also minded additionally to test a figure of 5% of the available funds. In the Government’s present view, this approach will ensure that the protection desired for smaller contributors will be provided without allowing those with a larger financial stake and who control litigation to avoid their due level of risk. Additionally, I am happy to make clear that this approach has the virtue of not excluding the procedure rule committees, who will ultimately decide the level of the threshold when making the rules.
I would also like to take the opportunity to clarify a further matter. This is the question of whether the clauses would force a judge to refuse permission to an otherwise meritorious judicial review for reason of lack of funds. I am happy to reassure the House that the clauses emphatically do not do that. The clauses contain no requirement for an applicant to have a certain level of funding. Similarly, the clauses do not change the law governing the circumstances in which it will be appropriate for judges to make costs awards. That remains a matter for judicial discretion, as it always has been.
I hope that I have dispelled many of the concerns regarding these reforms, and reassured your Lordships that these provisions are a sensible and proportionate means of dealing with a mischief that we intend to tackle, without undermining the discretion that should properly rest with judges. I therefore ask the House to support the government amendments.
My Lords, I am very pleased that the Government have given way on the issue of principle in Motion B and have indicated that the identity of those contributing up to £1,500 funding for a judicial review will not need to be disclosed. The Minister said that our earlier debates on these issues had been highly intelligent. Without, I hope, debasing the currency, I want to make some observations.
The issue of principle is that the courts will now retain a power to hear a judicial review even if it is said that the alleged defect would not have made a difference in the individual’s case. I would have preferred the concession to be drafted in more generous language than an exceptional public interest, but concession it is. As the Lord Chancellor said in the House of Commons on 13 January at col. 811, and as the Minister confirmed this afternoon, it will be for the judges to decide how and when that test should apply. Indeed it will.
In applying the criterion, I am sure that the courts will have very much in mind Mr Grayling’s explanation of the purpose of the clause. He said that it is designed to prevent judicial reviews being heard when they are,
“based on relatively minor procedural defects in a process of consultation … That is what these proposals are all about”.—[Official Report, Commons, 13/1/15; col. 812.]
I am confident that the courts will have careful regard to those explanations by the Lord Chancellor and that if the judicial review is not concerned with minor procedural defects but with allegations of systematic or deliberate wrongdoing, or errors of law in the interpretation of statutes which have a general effect, the discretion will be exercised so that the case is heard in the traditional way, as it should be.
In applying the clause, I would also expect the courts to pay close regard to what the noble and learned Lord, Lord Woolf, then Lord Chief Justice, who I am delighted to see in his place today, said in R v Offen, 2001, 1 Weekly Law Reports 253. In the Court of Appeal, the noble and learned Lord was considering Section 2 of the Crime (Sentences) Act 1997, which requires courts to impose an automatic life sentence on a person convicted of a second serious crime,
“unless the court is of the opinion that there are exceptional circumstances”.
At paragraph 79 of his judgment, Lord Woolf said that the meaning of “exceptional” depended on the statutory purpose, and where the statutory mischief did not exist, the case was indeed exceptional.
Applying that approach, as I am sure that the courts will do in the present context, the judges will be able to say—and I hope that they will—that the statutory purpose here is the very limited one identified by Mr Grayling of striking out judicial reviews which raised what he describes as “relatively minor procedural defects”.
Other cases, particularly those raising allegations of substantial errors of law or of systematic wrongdoing are outside the legislative aim and are therefore, on the approach of the noble and learned Lord, Lord Woolf, exceptional. They can be heard in the normal way. For those reasons, I am confident that we have arrived at a tolerable result at the end of this saga.
We have arrived at a sensible solution because, and only because, this House was prepared twice to disagree with the House of Commons. It should be noted that the concern about Mr Grayling’s proposals was expressed across this House. My amendments were supported by a very large majority of Cross Benchers who voted; they were signed by the noble and learned Lord, Lord Woolf. The amendments were supported by the Labour Benches, led on this occasion by the noble Lord, Lord Beecham, with his customary wit and fire; he signed the original amendments. There was a very substantial rebellion in support of retaining judicial discretion from the Liberal Democrat Benches; the noble Lord, Lord Carlile of Berriew, also signed the original amendments. Also of importance on the Floor of the House and behind the scenes, there was substantial support from noble Lords on the Conservative Benches who are wise and experienced, and respectful of the value of the rule of law, with some forceful speeches in support of retaining judicial discretion, in particular from the noble Lord, Lord Deben. I am very grateful for all that support.
I express particular thanks to the Minister, the noble Lord, Lord Faulks, who has assisted the House by the force and clarity—indeed, the good humour—of his advocacy as the acceptable face of the Lord Chancellor’s department at all stages of the Bill. I know that he has worked tirelessly and successfully behind the scenes to arrive at a compromise which can be agreed by the Lord Chancellor and by noble Lords concerned about this clause. That is a remarkable achievement.
I should add one further observation and I do so with regret, but it needs to be said. I regret that on 13 January, when the House of Commons considered this matter for the final time, a Lord Chancellor again expressed comments that display an astonishing lack of understanding about the role of judicial review—one of the cornerstones of the rule of law. Judicial review does not, as Mr Grayling complained at col. 819, involve public bodies being “blackmailed”. He also suggested,
“severe doubts about whether secondary legislation should be subject to judicial review”.
These doubts appear to have no basis whatever other than the fact that the courts have, on a number of occasions in the last year, held that regulations made by the Lord Chancellor were outside the scope of his statutory powers.
Furthermore, judicial review is not, as the Lord Chancellor again suggested,
“now overtly used by campaign groups and third parties to seek to disrupt the process of government”.—[Official Report, Commons, 13/1/15; cols. 819-20.]
Such comments make no sensible contribution to the debate. They demean the office of Lord Chancellor because they disrespect and undermine the vital role of judicial review in ensuring that the business of government is conducted lawfully.
However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament. The discipline of the law plays a vital role in promoting the high standards of administration in this country that we are in danger of taking for granted. It helps to concentrate—and rightly so—the mind of a Minister or civil servant taking a decision whose legality he or she will be answerable for in public before an independent judge.
Your Lordships’ Constitution Committee said recently, in its excellent report on the office of Lord Chancellor, that the Lord Chancellor should have,
“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister”.
Every time this Lord Chancellor addresses judicial review, he contradicts that essential guidance. I am very pleased that this House has performed its role in requiring the House of Commons and the Lord Chancellor to think again, and in securing acceptable compromises that will enable judicial review to continue to perform its valuable and essential functions.
I would like to comment on the remarks of the noble Lord, Lord Pannick. He said that this has been something of a saga. It has indeed been a saga, albeit, as I think he would agree, a highly intelligent and rationally argued one on all sides. The reason it has been a saga is that there is a real issue here: on the one hand we value the role of judicial review, which, as he rightly says, is a protection for the citizen against illegal and wrong actions by the Government, and it is important that that is kept in place, but on the other hand, unfortunately, in recent years an abuse of judicial review has crept in in many areas. We have heard at some length the sort of examples where that has taken place. To give one example, the noble Lord, Lord Adonis, had tremendous difficulties with the introduction of the academy programme when he was Minister for Education in the previous Government, because of the judicial reviews that were brought in against that particular idea, and it took him some years for that all to be sorted out.
At the moment these problems are concerned not so much with education or issues of that kind but with development. Many schemes up and down the country to provide more houses, roads, commercial opportunities, schools and hospitals are held up by judicial reviews that are usually—indeed, very often—almost without merit and are brought forward on tiny issues of procedure. These judicial reviews are used as a weapon of delay, which is something that any Government, Labour, Conservative or coalition, should be concerned about.
There has been an issue of getting the right balance between on the one hand protecting the legitimate and longstanding use of judicial review, and on the other avoiding this abuse of judicial review, particularly using it as a weapon of delay for infrastructure development. This is an important issue, so important that not only are the Government concerned about it but the Opposition are using their day tomorrow to talk about the need for more infrastructure development. It is a common cause for all Governments, frankly, that we get infrastructure development—I am sorry that that is such an ugly phrase, but the House knows what I mean—going with some speed, because we are falling behind. We are 24th in the world league for infrastructure development, whereas we are fifth in the economic league, so we are well behind where we should be in terms of building roads, houses and all the rest of it, and we need to move that on. The truth is that judicial review has sometimes been used in a very unfortunate way to delay that sort of development.
My noble friend has had the difficult task of getting some sort of balance into this debate, and that it why it has taken some time for this House and the other House to reach a conclusion. A conclusion has, I hope, now been reached, and that reflects good will on all sides of the House. I hope that what has been achieved will be of value and do some good. When we pass legislation in the House, we unfortunately never know exactly what effect it will have, but I hope this will have some effect and I therefore pray that the effort that has gone into it on all sides of the House and at the other end of the corridor will be of good value.
I also share the hope expressed by the noble Lord, Lord Horam, that what has been achieved will be worth while. However, I am bound to say that my view originally was that these proposals to restrict the court’s powers in relation to judicial review were unnecessary and misplaced. On the points made by the noble Lord, Lord Horam, I should point out that these amendments would not have assisted in any way whatever. What has assisted is the fact that the courts, aware that there are problems in some areas of judicial review, and of their own motion, put in place a specialist way of dealing with the questions of development to which the noble Lord referred. That is quite independent of these amendments. None the less, the changes that have been achieved to the original proposals enable me, like the noble Lord, Lord Pannick, to accept that this can be accepted, although with reluctance.
My Lords, it is a pleasure to follow the noble Lord, Lord Pannick, in his customary forensic and formidable critique of the decisions made, and the manner in which they are made, by the Lord Chancellor. As we have heard, the House has secured an amendment to the “highly likely” test. The courts will be able to allow a case to be brought or to grant relief where they deem there is an exceptional public interest, notwithstanding that it would be highly likely that the defect in procedure would not have affected the outcome.
It is, however, somewhat unclear what is meant by “exceptional public interest”. The Richard III case attracted more public interest than any judicial review case that I can recall, and certainly more interest from the Lord Chancellor, who constantly relies on that one case to justify his assault on judicial review. Would such exceptional interest have allowed the court to deal with that case if it had been demonstrated that it would have failed the “highly likely” test? If not, will the Minister give us some examples, given that the courts are now directed that they must strike down a claim unless such exceptional public interest exists? Further, if judicial discretion remains, it would surely have been better not to substitute “must” for “may” in the injunction to apply the test contained in the amendment.
The final government amendment deals with financial information to be supplied by those contributing to the funding of judicial review applications; and again under pressure from this House, and again, no doubt, with the advice of the Minister, the Government have moved, in this case to promising a consultation on the limits beyond which disclosure would be required. That is, of course, welcome, although it is not clear whether Parliament will have an opportunity to debate the outcome of such a consultation before the rule committee makes its decisions. Perhaps the Minister will give me an indication about that.
I have always acknowledged the need to get behind the facade which can be erected via a shell company or other device, such as was used in the Richard III case, partisan supporter of that much maligned monarch though I am, but it is a pity that the Government have not sought to consult on how to do that, rather than come forward with what originally certainly looked like a device which could have a chilling effect on genuine supporters of a claim for review. Nevertheless the change embodied in the amendment, as far as it goes, is welcome.
It has been striking, as this Bill has gone through both Houses, how little support it has attracted from government Back-Benchers in either Chamber, with the notable exception of the noble Lord, Lord Horam. In the last round of ping-pong in the Commons three Conservative lawyers—Geoffrey Cox QC; the former and widely lamented Attorney-General, Dominic Grieve, and the former Solicitor-General, Sir Edward Garnier—all voiced stringent criticisms. We are, however, where we are, and thanks to deliberations in this House, and, I suspect, to the wise counsels of the Minister, it is a better place than we might have been. I only hope that after the general election we will have, whoever forms the next Government, a Lord Chancellor and Secretary of State for Justice who, if not judicial, will at least be judicious.
My Lords, I am grateful to all noble Lords for their contributions to this debate. I am grateful to the noble Lord, Lord Pannick, for his observations about the rule of law and its importance. I find no difficulty in agreeing with his critique of the rule of law, its role and its importance, and judicial review as a part of that.
There is perhaps one area where I would not wholly agree with him, and that is in his submission in relation to “exceptional”. I say submission because, as he will appreciate, those looking for clarification on what “exceptional public interest” may mean, pursuant to the rule in Pepper v Hart, might be interested in what was said in debates. They might have their attention drawn by the noble Lord, Lord Pannick, or indeed by some other counsel, to what he himself said in the course of the debate. I do not think that that is quite within Pepper v Hart. He referred, for example, to what the noble and learned Lord, Lord Woolf, said in one particular case. I think that different judges have used the word exceptional to mean different things in different contexts. I see the noble and learned Lord nodding. I simply say that “exceptional public interest” will depend on its context, and we are content to leave it to the judges to decide what it means. The noble Lord, Lord Beecham, did his best to tempt me into giving examples—even trailing the Richard III case, which he said was a classic case in which the public were interested. The public can be exceptionally interested in something without it being a matter of exceptional public interest. I trust that judges will be able to make that distinction.
As for the rule committee, it is, as noble Lords will know, separate from the Lord Chancellor, who has been much maligned in the course of this debate. It will decide what is appropriate on the basis, I hope, of a wide consultation on the issues. No doubt it will bear in mind, among other things, observations that have been made during the course of this debate. I am grateful for all the contributions to the many debates that we have had.
No, I will not give that undertaking. The rule committee will have the basis for consultation and the basis of the debate and it will be subject to the usual parliamentary procedure, meaning that each House will have the option to vote against—so to that extent. That is perhaps an answer.
The debate has been of a very high quality. Indeed, I pay tribute, as other noble Lords have, to the scrutiny that the Bill generally—not just the matters that we are dealing with today—has received from every quarter of the House. There have been different fields of expertise brought to good effect in the course of the consideration of the Bill by your Lordships’ House. There have been a considerable number of amendments to the Bill in many different areas. Today, and in the course of the most recent debates, we have focused on the modification of the reforms of judicial review and in relation to parliamentary oversight of under-15s and girls in secure colleges—and, indeed, on the secure college rules, which will now be subject to an affirmative resolution. However, there have been other important amendments, such as the new offence of revenge pornography; the custody arrangement for 17 year-olds; various provisions to clamp down on dishonest personal injury claims; and extending reporting restrictions to young people, to name but a few.
Her Majesty’s Opposition, for the most part through the noble Lord, Lord Beecham, have provided thorough and sometimes fierce scrutiny, peppered with literary allusions and no little humour. I thank all those who have assisted in contributing to what has been a very much improved Bill, which is greatly to the credit of the House, but I hope that the House will forgive me if most of all I pay tribute to the Bill team, the officials and lawyers who have worked on this complex Bill. They have done so at considerable pace, grappling with complex issues with great skill and good humour. With those words, I beg the House to support the Government’s amendments.
Moved by Lord Faulks
That this House do not insist on its Amendments 103 to 106 and do agree with the Commons in their Amendments 106E and 106F.
106E: Clause 65, page 66, line 21, at end insert—
“(3AA) Rules of court under subsection (3)(b) that specify information identifying those who are, or are likely to be, sources of financial support must provide that only a person whose financial support (whether direct or indirect) exceeds, or is likely to exceed, a level set out in the rules has to be identified.
This subsection does not apply to rules that specify information described in subsection (3A)(b).””
106F: Clause 65, page 66, line 43, at end insert—
“(3AA) Tribunal Procedure Rules under subsection (3)(b) that specify information identifying those who are, or are likely to be, sources of financial support must provide that only a person whose financial support (whether direct or indirect) exceeds, or is likely to exceed, a level set out in the rules has to be identified.
This subsection does not apply to rules that specify information described in subsection (3A)(b).””