Criminal Justice and Courts Bill

Andy Slaughter Excerpts

Monday 24th February 2014 Commons Chamber

[John McDonnell (Hayes and Harlington) (Lab)]

I doubt whether the Bill will be opposed today, but I hope that there will be time to consider amendments that might improve it at a later stage. I apologise, Madam Deputy Speaker, for coming so late to the debate. I heard the opening speeches and then had to chair a meeting elsewhere, but I will be brief.

I want to make three simple points. With regard to secure colleges, sometimes if we stand still long enough, things come round again. They will smack very much of the old approved schools if we are not careful. The proposed £85 million project seems to involve a 320-bed institution. All the evidence in recent years has demonstrated that tackling young offenders and rehabilitating youngsters to ensure that they do not offend in the future is better done in smaller units, rather than large ones. That is why we moved away from the old approved schools, so that more intensive work could be done with young offenders and young potential offenders in smaller units. The proposal flies in the face of all that evidence and seems to take us back, rather than forward. However, if the Government are to experiment in this way, it is important that at least some provision remains in smaller units, particularly for those young people who are vulnerable. We have had briefings from the Children’s Rights Alliance and others, and they have interpreted the Government’s commitment to maintain small secure children’s homes as somewhat ambiguous. It would be useful to hear from the Minister tonight about what the future is for small secure children’s homes under the proposed new structure. The vulnerable youngsters who are cared for in those units would be lost within the bigger establishments proposed by the Government today. There would be anxiety if we were to lose that element of specialism in the system in the future.

The second issue relates to the proposal for magistrates to sit alone when taking decisions. I read the Magistrates Association briefing, and I share some of its concerns that there is a need to ensure that justice is seen to be done. Removing cases from the courts into a side room in a police station or elsewhere with a magistrate sitting solely with a clerk may not be as open and transparent as in the past. I would welcome hearing the Government’s view on the magistrates’ recommendation about at least ensuring that lists of cases are published. Perhaps that should be incorporated into the Bill, so that we can give the assurance that openness and transparency will continue for two reasons: first, it is important that people know that justice is being done and that it is visible; and secondly, some people want to know that the perpetrators have been prosecuted appropriately and have received the appropriate sentences. Therefore, listing cases would at least maintain an element of openness and transparency in the system. I hope that the Government can take on board the Magistrates Association recommendation and build it into the Bill.

The third issue, which I am anxious about, is judicial review. In my own experience, judicial review has largely been used by an individual or small organisation to challenge decisions by state bodies; in my own area, those have largely been decisions made by local councils. At the moment, judicial review is incredibly hard to undertake, largely because of the costs involved. It takes about £10,000 to £15,000 just to get into court in any form to have a judicial review heard, which is beyond the means of most individual and many organisations, but at least there is the opportunity to challenge a decision.

In my area, a judicial review took place recently when the local authority closed down special needs centres, or undertook the exercise of closing them down. That decision was challenged by the parents of the centres’ clients. They won at judicial review, forcing the local authority to reconsider its decision and to consult properly. That is the appropriate mechanism for judicial review. The Government’s current proposals will bear heavily on those individuals or organisations that are challenging decisions by bodies such as local councils.

I refer back to the debates that we had during the passage of the Local Audit and Accountability Act 2014, when evidence was brought forward by Transparency International about the problems with local government decision making: its closed nature and the use of commercial interests to drive decisions into part 2 of the cabinet decision-making processes. In other words, it revealed the secretive nature of decision making by some local authorities. Again, judicial review becomes the last resort for many organisations and individuals—certainly in my community—to try to get some form of appropriate and reasonable decision making, or at least some form of supervision of that decision making by the courts themselves.

I fear that these proposals will restrict the opportunity of the most vulnerable in our society to hold the powerful to account. I welcome the Government’s reassurances that there will perhaps be an opportunity to consider some amendments to the current proposals, which would allow the current process to be maintained and improved.

The Government have included a commitment to cost orders within the process itself. I agree that we should try to ensure a limit on costs overall. The problem is that the cost orders come too late in the process, The decision-making process will be more at the permissive stage, so a lot more work will be required of representatives before a cost order can even be applied for, which would provide protection from the heavy burden of costs during the process.

I would like the Government to look again at where the cost orders can be implemented. Under the Government’s proposals, just to get to the permissive stage an individual will either have to fund a considerable amount of work or it will have to be done at risk by an individual lawyer, before there is even a discussion about the cost order and cost-sharing.

This is largely about individuals fighting institutions that are well-resourced. Again, I will give an example from my own area. Many times, individual councillors have been protected by the council’s insurance against any legal action that is taken about their own decision making. So the individual is at risk, but the individual councillor or the council body is protected, bizarrely using—most probably—part of that individual’s council tax payment to enable that protection to be given. The problem in these proposals is that the cost burden, or the cost deterrent, will fall more greatly on the individuals concerned. I would welcome the Government considering, perhaps during the progress of this Bill, a more effective way of ensuring that the cost burden is limited—overall, of course, but also as it falls on the individual concerned.

The issue of interveners was referred to earlier. Every time I have been involved in a judicial review process in my area, interveners have played an invaluable role in bringing their expertise to the table and to the discussions within court itself. I would be wary of restricting the ability of specialist organisations to intervene in a particular case. I could give example after example of what is happening with my own local authority not only of individual housing cases but of individual health cases, where interveners have helped by bringing their health expertise to a case, because it then merits a wider debate about a particular aspect of that case that has a wider public interest.

I am glad that the environmental issues have been separated from this process—largely as a result of European conventions, I see—because in my own area judicial review has been one of the mechanisms by which we have at least been able to seek to protect ourselves against adverse planning decisions that have had an environmental impact on my community. That may well be an issue that we will want to come back to when we debate the proposals for a third runway at Heathrow, because we will be looking for a judicial review of the Government’s decisions at every possible opportunity if they wish to proceed with those proposals. Therefore, it is good that environmental matters are excluded from the heavy burden of costs, as far as I can see.

[Mr Andy Slaughter (Hammersmith) (Lab)]

indicated dissent.

[John McDonnell]

I see that my hon. Friend on the Front Bench is shaking his head. I am happy for him to correct me on that matter.

[Mr Slaughter]

I congratulate my hon. Friend on his excellent speech. However, I think that some matters under the Aarhus convention are protected but other environmental matters may well not be.

[John McDonnell]

I see. Again, we may well table amendments to broaden that protection, because we will rely on judicial review powers to challenge Government decisions—we will certainly do so in the case of the third runway at Heathrow and we might do so in the case of High Speed 2 as well—if we feel that the Government have not acted appropriately or reasonably in their decision-making process.

Having made those three points, I will finish. They are about critical issues that the Government need to address. There is no opposition to the overall legislation tonight, but I hope that there will be opportunities in this process for the Government to consider amendments to improve the legislation, so that certain rights can be protected, particularly those of the individual taking on the powerful within our society.

--- Later in debate ---

[Mr Andy Slaughter (Hammersmith) (Lab)]

It is curious that a Government who did not think that they needed a Bill to dismantle criminal legal aid or to privatise the probation service should decide that they do need one to encourage courts to report wasted costs orders to the Bar Standards Board. It is also curious that a Lord Chancellor who is reluctant to debate the restriction of access to justice, or risks to public safety, can find plenty of parliamentary time in which to discuss age limits for jurors.

The Government have a curious sense of priorities; but the clue is in the phrase “find time”. We heard earlier that the Lord Chancellor was the only Cabinet Minister to volunteer to conjure up a Bill to fill the yawning void that is the last 15 months of the current Parliament—a carry-over Bill intended to mark time while the coalition parties manufacture disagreements to keep their own core voters happy. His reward—and I am pleased to see him in his place—was to miss the Cabinet’s day out in Aberdeen. There is no justice for the Justice Secretary.

However, I do not want to denigrate the Bill; I merely wish to set it in context. Although there are parts of it that we strongly oppose, much of it is unobjectionable, and some of it is even laudable. It makes sensible administrative changes, and introduces new offences that clarify or reinforce important parts of the law such as contempt, or address failings in the Government’s own legislation or practice. We are not going to find reasons to oppose such measures and, on balance, we will not oppose the Bill tonight, in the hope that improvements can be made before Third Reading.

I can do nothing but praise the quality of the debate today. We are fortunate to have heard from some of the most experienced and thoughtful Members on both sides, and I hope that the Minister will take on board their observations not only when he responds to the debate tonight but when he reviews the Bill in Committee. We have heard former Justice Ministers, including the hon. Member for Huntingdon (Mr Djanogly) and the right hon. Member for Arundel and South Downs (Nick Herbert), and from Select Committee Chairs including my right hon. Friend the Member for Leicester East (Keith Vaz) and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). We have also heard from eminent practitioners such as my hon. Friend the Member for Kingston upon Hull East (Karl Turner) and the hon. Members for Dewsbury (Simon Reevell) and for Bromley and Chislehurst (Robert Neill).

I hope, however, that none of those Members will be offended if I say that the most perceptive comments often came from those who show a lay interest in these matters. The hon. Member for Dartford (Gareth Johnson) talked about exercising caution over the use of cautions and about education on the secure estate, and I agreed with much that my neighbour, the hon. Member for Ealing Central and Acton (Angie Bray), said in her tour d’horizon of the Bill. I was slightly confused, however, by the contributions of the hon. Members for Cambridge (Dr Huppert) and for Shipley (Philip Davies). Both seemed to love the Bill, but one of them thought it was about restorative justice and reducing the prison population by 30,000 while the other thought it was about punishment and increasing the prison population by that number.

[Sadiq Khan]

They can’t both be right.

[Mr Slaughter]

Indeed, but the Lord Chancellor has at least managed to make both of them happy, and he should be praised for that, if for nothing else.

I want to make specific mention of the contributions from my hon. Friend the Member for Hayes and Harlington (John McDonnell) and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who made robust defences of judicial review and of open justice. They correctly echoed the view expressed in the Campaign to Protect Rural England’s briefing that judicial review is

“used rarely by community groups in relation to planning decisions because it is costly and a significant and daunting undertaking.”

No one would imagine that, from what the Government have said today.

I shall take my cue from my hon. Friend the Member for Hayes and Harlington and the right hon. Member for Dwyfor Meirionnydd in dealing first with the most contentious and objectionable part of the Bill—part 4, which covers judicial review. What is it about this Lord Chancellor and judicial review that the mention of it makes him behave in an irrational and unreasonable way? He has taken to the columns of the Daily Mail to denounce one of our most important constitutional safeguards as

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

It is unclear whether those left-wing campaigners include the Countryside Alliance, the Daily Mail, The Daily Telegraph, UKIP’s Stuart Wheeler and numerous Conservative councils, all of whom have initiated judicial reviews in recent times. However, the senior judiciary’s response to the Lord Chancellor’s consultation shot that particular fox when it stated that it 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.”

The Lord Chancellor has already taken bites out of judicial review by imposing additional fees and limiting the time for bringing a claim, in some cases to six weeks. He is also going to restrict the use of legal aid by statutory instrument, rather than through primary legislation. He would wish to hobble applicants more by restricting the recovery of costs until beyond the permission stage and allowing defendants to intervene at that stage with the prospect of recovering their costs. The Bill contains a variety of additional ways to discourage judicial review by increasing applicants’ costs or putting them at risk of paying defendants’ costs. Protective costs orders will not be abolished, but they will be available only in narrow circumstances and once permission is granted.

The worst aspects are in clauses 50 and 53, attacking both the raison d’être of judicial review to correct Executive error in decision making and the ability of third parties to intervene in the public interest and to assist the court. Already heavily criticised, the new test in clause 50 refuses permission where it is “highly likely” the outcome for the applicant

“would not have been substantially different if the conduct complained of had not occurred”.

This confuses unlawfulness with remedy. It will encourage bad decision making and it is likely to lead to a full trial of the issues at permission stage. Lord Pannick, in an article that has already been quoted today, has said that the clause will give the Government a

“get out of jail free card”,

and allow public bodies to

“avoid a hearing and judgment on the legality of their conduct.”

Under clause 53, third parties—often non-governmental organisations, charities and human rights organisations—that intervene in judicial reviews to clarify issues that often assist the court will now be severely discouraged from doing so by cost penalties. Yet Lady Justice Hale of the Supreme Court has said that

“interventions are enormously helpful…The most frequent are NGOs such as Liberty and Justice, whose commitment is usually to a principle rather than a person. They usually supply arguments and authorities, rather than factual information, which the parties may not have supplied.”

In aggregate, these proposals mean that only applicants of substantial means will be able to bring a claim or risk the costs of losing it. In a country without a written constitution, judicial review is one important way of holding the Executive to account. This Government want to insulate their bad decision making from legal challenge and place themselves outside the rule of law. They are strengthening Executive power and weakening a critical check on the power of the state. This Lord Chancellor, for misguided party political motives and as part of a sustained attack on access to justice, is undermining our civil liberties, and these changes should be against everything the Liberal Democrats stand for. Under this Government, seeking justice is getting harder and these proposals show them on the side of their corporate friends, not of individual citizens and communities. Politicians in power might find judicial review an awkward irritant, but that is precisely what it is intended to be. Combined with the cuts to legal aid, limitations on no win, no fee cases, and threats to the Human Rights Act and European convention, this proposal amounts to a sustained attack on the rights of individual citizens to hold those in power to account. As the President of the Supreme Court, Lord Neuberger puts it,

“one must be very careful about any proposals whose aim is to cut down the right to judicial review”.

He has also said:

“The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive.”

We have serious concerns about other parts of the Bill. As they stand, the plans for secure colleges may prove damaging to thousands of young offenders in our criminal justice system. The Bill leaves a question mark over the future of secure children’s homes, which cater for the most vulnerable young people. Such homes typically house small numbers of children, provide intensive support and are staffed by highly qualified specialists in social care. The homes have good educational outcomes and are recognised as the preferred model of youth custody, but they look set to lose out to the Lord Chancellor’s new and untested pet project. It is untested according to the Government’s own impact assessment, but still £85 million is needed to build just one secure college.

The Justice Committee pointed out in its report last March that the average time in youth custody is only 79 days, so most young offenders would not be in a college long enough to improve their basic skills. What levels of training or qualification would the college staff have? Why will college custody officers be empowered to use “reasonable force” for the maintenance of “good order and discipline”? That may well be unlawful under the European convention on human rights, according to a Court of Appeal 2008 ruling and the UN Committee on the Rights of the Child, which stated in 2007:

“Restraint or force can be used only when the child poses an imminent threat of injury to him or herself or others, and only when all other means of control have been exhausted. The use of restraint or force, including physical, mechanical and medical restraints, should be under close and direct control of a medical and/or psychological professional. It must never be used as a means of punishment.”

As regards part 3 of the Bill, we support the use of single justices, given that their jurisdiction will apply only to summary, non-imprisonable offences where an adult defendant pleads guilty. However, we object strongly to taking these cases out of the courtroom and into offices away from public view. Such an approach damages the principle of British justice that cases are heard and the results made known in public. This Government are too fond of secret courts, and even in minor cases the principle of open justice should be rarely departed from. We agree in principle that convicted criminals could contribute to the costs of trial, but the substantial amount of uncollected fines from criminals already totals more than £1 billion and it is likely that this proposal will just add to the total of uncollected moneys from criminals. We have no objection in principle to leapfrog appeals, for example, on issues of national importance, though they are most likely to be used by government trying to hurry the process up. The danger is that this simply overloads the Supreme Court and that the issues it has to deal with are insufficiently refined by earlier hearings.

It is a good idea to update the jury room process and the rules on reporting cases to accommodate the social media age. The Attorney-General is to be commended for taking a personal interest in the limitations on reporting and in discouraging jurors from using social media to research or publicise details of trials. However, the Government fail to provide any support to juries in explaining their roles and remit as part of any new offences, and it is not clear whether they have considered the full implications of the numbers of people using social media and the variety of methods available. We have no objection to raising the age of jury service to 75.

There are two glaring problems with part 1 of the Bill. It does not do what it says on the tin, which is to protect the public adequately from violent and dangerous offenders, but it does incur costs and prison resources that the Government do not have in place. I fear that the hon. Member for Shipley may have been slightly taken in by the rhetoric rather the actuality of what is in part 1. The changes to sentences for the most serious and violent criminals are a poor substitute for indeterminate sentences for public protection, which this Government abolished in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—[Interruption.] I do like to mention that, because it is the one thing that we both agree on.

[Philip Davies]

Absolutely.

[Mr Slaughter]

I am afraid that the Government have been playing catch-up ever since IPPs were abolished, but none of what is proposed offers the same level of public protection. The Government’s own impact assessment states that the sentencing changes will require 1,050 additional prison places, but there are fewer than half that currently available. It also states that the costs of additional custody are not quantified. We noted with concern the Lord Chancellor’s inability to answer any of the questions about his Department’s budgets. Proposals in part 1 will also see a greater work load for the Parole Board, with an additional 1,100 Parole Board hearings a year, according to the Government’s impact assessment. However, no additional resources are being made available, at a time when Parole Board staff numbers have already been cut by nearly one in five.

We support the ban on the possession of extreme pornographic images depicting rape and other non-consensual sexual penetration. That is a welcome victory for campaign groups such as Rape Crisis South London and the End Violence Against Women Coalition. We support the restrictions on the use of simple cautions.

Criminal justice Bills have a reputation for being Christmas tree Bills, and this one is no different. It is a mixture of the minor and non-contentious with some major, damaging and poorly thought-out measures, such as those in part 4, which, if they survive here, will be butchered in the other place.

This is also quite a mean little Bill, reflecting the character of its author. It further limits the rights of the citizen against the state, and it scratches around to find some more savings because the Treasury has been overpromised. Desperate to impress the Prime Minister, this is the best that the Secretary of State could come up with. Much of it is unexceptional or unobjectionable. It is legislation for legislation’s sake, and is designed to fill an intellectual and actual void in the Government’s programme. It is irrelevant to the big issues being played out in our justice system. It reinforces the growing view in the country that it is time for this failing Lord Chancellor and this Government to move on.