Criminal Justice and Courts Bill

Lord Faulks Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Faulks]

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.

[Lord Ponsonby of Shulbrede]

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?

--- Later in debate ---

[Lord Faulks]

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.

[Lord Beecham]

Can the noble Lord confirm that the rules will be subject to parliamentary approval?

[Lord Faulks]

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.

[Lord Beecham]

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.

[Lord Faulks]

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.

[Lord Woolf]

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.

[Lord Faulks]

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.

[Lord Woolf]

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.

[Lord Faulks]

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.