Criminal Justice and Courts Bill — Second Reading (Continued)

– in the House of Lords at 6:16 pm on 30th June 2014.

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Photo of Baroness Berridge Baroness Berridge Conservative 6:16 pm, 30th June 2014

My Lords, I declare an interest as a member of the Joint Committee on Human Rights. Although I find it difficult to find a single theme within this Bill, there is much to commend some of the provisions and measures contained within it.

As a supporter of the No More Page 3 campaign, I note that the Bill terms certain images as “extreme” pornography, and may by amendment refer to “revenge” pornography, to differentiate it from other pornography that, unfortunately, has become so easily available in our society. I support this limit on such pornography, as the cultural effects of such images cannot be underestimated. As the Joint Committee on Human Rights report states, the demand for academic work in this area has often been oversimplistic in requiring strict cause and effect. However, I hold the basic view that if images did not have a substantial effect on individuals’ behaviour and on our culture, the advertising industry would not exist on the scale that it does.

In light of the current media focus on the activity of British citizens in Syria, the increase in sentences in the Bill for various terrorist offences, to enable them to come under the dangerous offenders sentencing regime, is a welcome message to the general public. It seems that the threat of criminal activity of this nature currently exceeds the actual convictions, but it is better to be prepared than to find the judiciary without the necessary powers.

The wisdom that I have seen over three years in your Lordships’ House from many octogenarians means that an increase from 70 to 75 for the maximum age to serve on a jury is long overdue.

From visiting category C prisons, I feel that the need to bring prescription drugs under the drug-testing regime is a loophole that should be closed. Currently, the searches of prisoners for prescription medication in their possession—without the corresponding prescription—are thorough, but I never fail to be surprised at the ingenuity of prisoners in hiding things. Drug testing is of course incontrovertible evidence of possession of these drugs.

The United Kingdom is blessed with some of the best medical care in the world, particularly in our accident and emergency departments. It is often only this care that saves the life of someone hit by a disqualified driver, but they may still end up maimed for life. The culpability of the driving behaviour is the same, and so an offence of causing serious injury by driving while disqualified is also very welcome.

I part company with my noble friend Lord Paddick on mandatory sentencing for the offence of possession of knives. I do not think it is any coincidence that the amendment was put forward in the other place by Nick de Bois and supported by David Burrowes, who are MPs for the Borough of Enfield, which, if one glances over the media, is a borough that has been disproportionately affected by knife crime. The possession of knives is now an even greater menace, particularly to young people, than the possession of guns. The strengthening of the sentencing powers within the Bill is welcome.

Therefore, while this speech further illustrates that the Bill is something of a pick and mix, I wonder whether there has been consideration by Her Majesty’s Government of further issues that could perhaps have been in the Bill. During the tragic murder of Drummer Lee Rigby there seemed to have been a risk that, due to the public nature of the incident, photographs of the armed police involved might have been taken by the public and found their way through Twitter into the public domain. Of course, the police were undoubtedly the heroes in this situation. However, what if the neighbour on the balcony who filmed the aftermath of the shooting of Mark Duggan had a slightly better mobile phone and the armed police could have been identified? Could my noble friend outline whether the police are indeed concerned about such a situation? Perhaps it is covered by other legislation, but I have been unable to find relevant provisions.

I would also be grateful if the Minister could outline whether the Government are satisfied with the current rules around the disclosure of the identity of young people charged with murder. Your Lordships may be aware that, in the recent case of the tragic murder of Ann Maguire in a Leeds school, there appeared to be a loophole in the law that allowed the identity of the offender to be released into the public domain after he was arrested but before he was charged. I would be grateful to note whether the Government wish to enact provisions that would close that loophole.

Finally, I wish to support the principle behind the introduction of secure colleges, whose aim is to remedy the often very poor educational attainment of young offenders, which has been outlined for your Lordships’ House. Enhancing their skills, of course, is one way to reduce reoffending, and having institutions for which this is their primary focus can only be an improvement. However, I would be grateful if the Minister could explain why these institutions would cover the age ranges 12 to 17 and why the reasons for the other institutions within the secure estate being divided between those aged under 16 and those aged over 16 do not apply to this type of institution.

I accept that some of the young people in secure colleges will have the physical strength of an adult, so I fully support the use of the reasonable force as a last resort and for the purposes of preventing harm to that child or to other children. Of course, where such force is used, it should be the minimum necessary. The suggestion that secure college rules can provide for force to be used on children to ensure good order and discipline leads me to worry about the capability of the providers of such colleges if they need such rules. While I appreciate that this education is within the secure estate, Serco or Wates employees able to use force, for instance to make a child stand in an orderly queue for a meal, reminds me of the teaching methods at Lowood Institution for orphans attended by Jane Eyre. I expect that this matter will be the subject of further discussion in your Lordships’ House, and although I am a member of the Joint Committee on Human Rights, I do not believe that I need to pray in aid any of our international obligations so much as the common law. I am proud to say that in all our education institutions, corporal punishment of this nature is a thing of the past and should remain so.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Labour 6:23 pm, 30th June 2014

My Lords, I want to go through the Bill and address various points. First, Part 1 is concerned with dangerous offenders, in Clauses 1 to 5 and Schedule 1. The effect of these new offences and new release conditions will be to increase the prison population—an increase of about 1,000 prisoners over the coming period, as the Government said in their impact assessment. When I attended the All-Party Parliamentary Penal Affairs Group around Christmas time, we heard from the Parole Board about the pressure that it is currently under. Given the existing backlog of cases for parole hearings and the Osborn judgment, I think it behoves this House to look very carefully at the Bill in Committee to examine how realistic it is that the Parole Board will be able to meet the increased expectations following the Osborn judgment and the provisions within this part of the Bill.

I move on to Clause 15 and the matter of cautions. I welcome the proposal to restrict cautions to summary and either way offences and to limit the use of repeat cautions. It is of extreme importance that cautions have public confidence. There has been legislation for scrutiny panels—which I have mentioned in previous Bills—to look at whether they are being appropriately administered. Scrutiny panels are being piloted in different parts of the country and I know there are schemes in place to look at the consistency of the various roles of scrutiny panels. It is clear from the legislation that it is for the police to lead the set-up of the scrutiny panels, but it is unclear to whom those scrutiny panels report and what is to be done with their findings. To give the House some idea of the scale of the issue, in the Metropolitan Police area in 2012-13 there were some 70,000 out-of-court disposals, and the current proposal within London is that there will be two meetings of a scrutiny panel each year in each judicial business group area. Therefore, I do not want to be too sceptical, but I am doubtful whether that level of scrutiny is going to be sufficient to assuage doubts about the proper use of cautions.

I move on to Part 2 of the Bill and young offenders, which are dealt with in Clauses 29 and 30 and Schedule 6. As we have heard throughout the afternoon, and Ministers will be very aware, there is near universal opposition to the secure colleges idea. The various pressure groups that contact noble Lords are universally against these proposals. I understand the Government’s objective to reduce the cost of detention training orders and to enhance the educational provision available to young offenders. I understand both those objectives. The objections to the secure colleges will be well known to Ministers: the families of children will inevitably have to travel further to the colleges, and there may well be a mixing of different age groups and ability ranges so the colleges will have to be very carefully managed so that the different elements of the college are appropriately separated. I know the Minister in the other place, Jeremy Wright, has promised to publish secure college rules. I would be grateful if the noble Lord the Minister could say when we might expect to see those and whether we could expect to see them before Committee stage.

I have two specific questions which, so far as I am aware, were not asked in the other place. First, will it be open for secure colleges to take 18 to 21 year-olds? Clearly, they would be managed separately from those under 18, but would it be open for secure colleges to take 18 to 21 year-olds if there was space available? The second question is whether it would be open for local authorities to refer young people to a secure college if they have no criminal conviction. My understanding is that this is the case—rarely but it is the case—in secure children’s homes, but would it be available for the secure colleges?

I spent some of yesterday afternoon looking at the Youth Justice Board’s website. There are 75 youths in custody in the East Midlands and 48 in the east of England. Therefore, when one considers the new build site for Glen Parva in Leicestershire, there is obviously an inadequacy of youths to go to that site, so it is self-evident that the youths would have to come from further away. However, we have had larger dedicated juvenile prisons in the recent past. First, Wetherby could take 360 prisoners plus a further 48 in a special purpose-built unit, but its capacity has now been reduced—mothballed—to about 200, so there is capacity there. Secondly, Hindley became a juvenile-only prison in 2009, with 450 places but because of falling numbers and after four and a half years it was resplit into 248 juvenile offenders and 192 18 to 21 year-old prisoners. The point that I am making is that building capacity is not the central issue, which is surely to provide the enhanced education. The £80 million cost is a lot of money. We do not know where it is coming from, but I suspect that many noble Lords, and certainly many pressure groups, would think that it would be better spent on enhancing education provision rather than building new buildings.

I move on to Part 3 of the Bill and the single justice procedures in Clauses 36 to 40. I agree with the Bill’s proposal that a single magistrate can convict and sentence high-volume, low-seriousness cases; this is when a defendant pleads guilty or agrees to the procedure or does not respond to notifications. I have sat on hundreds of these cases, and I am very glad to agree with the procedure. I say to my noble friend Lord Beecham, who is not in his place, that one magistrate is more than sufficient and you can, under current rules, sit with two magistrates. The Magistrates’ Association has raised a concern that this change in procedure should not be seen by the public as a lessening of the rigour with which criminal cases are dealt with in a magistrates’ court. To this end, the MA has come up with two alternative suggestions, which I may move as amendments in Committee. The purpose of the suggestions is to publish the courts’ list in a readily accessible way so that people can be confident that procedures are going through in a public way.

I move on to the committal of young offenders to the Crown Court, in Clause 41. I welcome this clause, which was introduced at the very last minute in the other place. If the Government have any estimate of the numbers of young people who they think will be sent up to the Crown Court under this provision, I would welcome that information. The Carlile report, which was a very good one, of course went much further than this in terms of trying many more cases concerning youths in the magistrates’ court. But this clause is a welcome step in the right direction.

On Part 3 and the costs of criminal courts, in my view it is wrong on principle that people should pay their court costs; it is the role of the state to provide the court’s services, so the state’s laws can be properly administered. I accept that my point of principle is weak when it relates to rich foreign businessmen who seek to resolve their contractual disputes in British courts. But from where I sit, as someone who regularly sits in magistrates’ courts, a very high proportion of the people I see are poor and on benefits. It is inevitable that imposing a mandatory court cost will make poor people poorer and more likely to plead guilty to reduce the potential court costs. Does the Minister think that that is fair? At the very least, magistrates and judges should have discretion about how much of the court costs are actually applied.

I want to make one comment on judicial review, and specifically on children, who are the most vulnerable. They cannot pursue these matters themselves and I would support any move in Committee that seeks to protect children with regard to judicial review.

Finally, in wrapping up, my noble friend Lord Beecham described this Bill as a pot pourri and then went on to give us a lesson in etymology—that it is not necessarily something that smells nice but could be a mixed pot of meat. We will see which is the correct interpretation in the coming weeks.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct 6:34 pm, 30th June 2014

My Lords, there are parts of this Bill to be applauded and other parts, alas, to be decried. I for my part particularly welcome the new provisions that place restrictions on the use of cautions. The overuse of these in recent years has gravely weakened public confidence in the criminal justice system. I also welcome the creation of new criminal offences in respect of the ill-treatment or wilful neglect of adults in care homes, the subject of a number of well publicised cases that have deeply and understandably shocked the public.

However, I can only deplore much of what appears in Part 4 with regard to judicial review, the area of law that principally has concerned me over the past 35 years, ever since I was privileged to follow the noble and learned Lord, Lord Woolf, as Treasury Counsel in 1979, before undertaking 28 years of judicial servitude. Necessarily, at Second Reading, one must be selective in one’s focus, and I shall therefore confine myself to comparatively brief comments on four topics only—IPPs, personal injury claims, juries and, finally, the proposed new test for refusing relief in judicial review challenges.

First, on IPPs, the noble and learned Lord, Lord Lloyd of Berwick, greatly to his credit, has for some time past, as we all know, steadfastly been pursuing the cause of these luckless prisoners—and, rightly, he continues to do so. Clause 9(3) returns to the topic, albeit, as I understand it, only for the very limited purpose of extending the Secretary of State’s power under Section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—that is, the power to modify the test to be applied by the Parole Board in deciding whether to release these prisoners—to IPP prisoners in the event that they have once been released and then recalled. Astonishingly, however, the Secretary of State has yet to exercise that power under Section 128, even in relation to the 773 prisoners to whom the noble and learned Lord, Lord Lloyd, referred, those who remain in prison long after their tariff sentences—often for less than two years—expired, who were sentenced in the initial period after IPPs were first introduced in 2003, at a time when judges had no discretion but, instead, were under a statutory obligation to pass such sentences. In other words, this is before the 2008 modification of the regime, when it ceased to apply unless there was a tariff term of at least two years, when judicial discretion was to some extent introduced, and, of course, years before this entirely discredited form of sentence was finally abolished in 2012.

At the conclusion of the short debate on this problem back in March, the noble Lord, Lord Faulks, while noting that the Secretary of State,

“has not considered it so far appropriate to exercise the power given to him by the LASPO Act”, recognised that:

“The sentence itself was clearly ill conceived and its impact was wholly underestimated”.—[Hansard, 27/3/14; col. 700.]

The noble and learned Lord, Lord Lloyd, must be right in saying that Section 128 was specifically enacted to enable this most egregiously ill-treated group of prisoners to be released earlier than they might otherwise hope to be. Frankly, it seems to me deplorable that to this day it has not been exercised. I can see no possible point in now extending it to the new class encompassed by Clause 9(3) if it is never going to be exercised. Surely, what this Bill should be doing is requiring a favourable exercise of the discretion. I hope that the noble and learned Lord, Lord Lloyd, will come back to that and seek to introduce it at Committee stage.

Secondly, I refer to personal injury claims. Like other noble Lords who have taken part in today’s debate, a considerable time ago I had some experience myself in this field. Clause 45 provides basically for the dismissal of personal injury claims if the claimant has been “fundamentally dishonest” in the way he has advanced the claim. For example, let us suppose that a claimant suffers a broken leg through the defendant’s negligence but, having in fact made a full recovery after six months, he nevertheless claims on the basis that years later he still cannot manage to walk 100 yards and fully expects to be disabled for life. If, as sometimes happens, he is then filmed playing football or possibly running a half-marathon, surely we would all agree that that would be clear evidence of fundamental dishonesty. It would surely be right that, instead of being awarded, say, the £5,000 that the claim might have been worth if honestly advanced, he should get nothing—unless, that is, the court thinks that he would thereby suffer substantial injustice.

For my part, in common with the noble Lord, Lord Hunt, but unlike, I fear, the noble Lords, Lord Beecham and Lord Marks, I support this provision. I find myself unpersuaded by the briefing that I suspect many of us will have received from the Association of Personal Injury Lawyers. True, it will be necessary on occasion to argue over whether the claimant’s untruthfulness or exaggerations constitute fundamental dishonesty and perhaps it will be necessary to argue whether dismissing his claim entirely would cause him substantial injustice. However, given the readiness of some these days to treat an accident as a God-given opportunity to make a fortune—“Whiplash Willie”, I seem to recall, was the name of a character played by Walter Matthau in a film some years back—this seems to be a clear steer to how judges should exercise their discretion in the matter. The modest narrowing of an existing discretion is a price worth paying for the discouragement which it is hoped this new provision will provide to those who are inclined or tempted to advance dishonest claims. Again, unlike I fear the noble Lord, Lord Beecham, I see no possible logic in suggesting that this provision should therefore be mirrored in regard to the defendant’s conduct of their defence. Surely, on analysis, there is no sensible parallel to be drawn between the opposing cases.

I turn briefly to juries. Clause 56(3), consistently with the recommendations of the Law Commission, rightly introduces a new offence of research by jurors—most typically, jurors using IT to discover, for example, whether a defendant has previous convictions. I support that. However, the Bill says nothing about research into juries, the question broached by the noble Lord, Lord Blair, in March when, as he explained today, he misunderstood the position, as indeed—he hinted at this too—did I. Section 8 of the Contempt of Court Act 1981 bars absolutely all possibility of research into juries. That is a provision with which I am very familiar given that the very reason it was introduced into the 1981 Act was that I myself had failed as counsel then acting on behalf of the Attorney-General in the prosecution of the New Statesman for contempt of court for publishing a juryman’s account of the jury’s deliberations in the Jeremy Thorpe trial. However, I knew nothing at all of any subsequent attempt to mitigate the effect of that section with regard to jury research. As the noble Lord, Lord Blair, today made plain, it seems that nobody else did either, with the possible exception of Professor Cheryl Thomas. Surely the Bill provides a perfect opportunity to correct what to many people will continue to appear to be an obstacle in the law.

I will briefly make a further point on juries. Is it not time to revisit the whole question of mode of trial for serious and complex fraud cases? The trial of such cases by a judge and two lay members chosen for their relevant expertise rather than by a jury would hugely reduce the length and cost of trials and at the same time increase the prospect of arriving at a sound verdict. Surely that, rather than drastically slashing counsel’s fees to a point at which the whole future of the criminal bar is now under grave threat, is the way to achieve economies in the criminal justice system without in any way damaging—on the contrary, it would advance—the fairness of the trial process. Indeed, that would allow more such cases to be brought to be trial, better to deter the increasing number of those who engage in fraudulent white collar operations. That was the recommendation of the Roskill committee way back in 1986 and it was reinforced by the Auld report in 2001. The subsequent attempts to introduce this provision in Parliament are a sorry story. I suggest that we would do well to follow the course recently taken in the Defamation Act 2013, which by Section 11 provides that libel cases in future are routinely to be tried without a jury.

Finally, I turn to Part 4 of the Bill, which is the part that I regret so deeply and oppose sharply, and the Government’s continuing attempt to curb the courts’ power by judicial review to supervise executive action. Regrettably, the Government have already begun to do this in the secondary legislation introduced earlier this year by substantially cutting public funding of judicial review, including, most unwisely, declining to fund leave applications unless they are successful. Now they seek to compound that by lowering the threshold for refusing permission to bring judicial review or, at the end of a hearing, for withholding any remedy—to reduce it from the existing test of inevitability to that of high likelihood.

As others have made clear, there are fundamental objections to that proposal, both in principle and as to the practicalities. So far as principle is concerned, this clause will in future require the court to reject a claim even though the decision may be deeply flawed in point of law simply because it is likely, although ex hypothesi not inevitable, that substantially the same decision would be arrived at, even if the matter was to be properly reconsidered and lawfully decided afresh.

Such an approach will allow public authorities to escape responsibility for their unlawful decisions. It overlooks both the central importance of honouring the rule of law and the inevitable feelings of resentment which one must feel, having been refused any remedy despite knowing that the decision taken against one was legally defective. It is worth repeating in this connection a short part of a celebrated dictum from a judgment given nearly half a century ago in the Chancery Division which is true in the context of a breach of the rules of natural justice but is equally applicable to the establishment of any other legal error in the decision-making process. The judgment in the case of John v Rees states:

“‘It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change”.

As to the practicalities, one simply refers, as the noble Lord, Lord Pannick, has already done, to the report of the Bingham Centre in February of this year, which expresses the senior judiciary’s view that the proposed new test,

“‘would necessarily entail greater consideration of the facts, greater (early) work for defendants, and the prospect of dress rehearsal permission hearings’”.

The report continues:

“The proposal thus stands to elongate and complicate the permission stage, by encouraging defendants to file lengthy and detailed evidence, with consequent delay and increased cost to all parties”.

Certainly, there has been an increase in the use of judicial review over the years, but is this such a bad thing? More and more areas of our lives are controlled by public authorities. At the same time, we have become, understandably, I suggest, less trusting and certainly less deferential towards those in authority over us. I sometimes wonder whether it did not all start with John McEnroe’s outraged questioning of line calls at Wimbledon way back in the 1970s. However, we should consider how in the long run his behaviour has contributed to the hugely improved policing of those lines that is in operation today. I speak as someone who was lucky enough to be on the centre court on Friday. By the same token, the use of judicial review has to my mind undoubtedly raised the standards of public decision-making in recent years. Alas, technology cannot be deployed to solve disputed calls in the law courts as on tennis courts, but the judges’ supervisory jurisdiction is assuredly the best safeguard that the public have against unlawful executive action and the abuse of power, and the Government most certainly ought not to be legislating to weaken it. Therefore, I join my voice to the many others who have already spoken, and those who are yet to speak, in condemning not only Clause 64 but the further provisions which the noble Lord, Lord Pannick, so powerfully analysed and criticised.

I apologise for taking so much of your Lordships’ time but, in truth, this is a Bill of the first importance and it contains a number of provisions of which we should be decidedly wary.

Photo of Baroness Linklater of Butterstone Baroness Linklater of Butterstone Liberal Democrat 6:54 pm, 30th June 2014

My Lords, little did I think that I would get to my feet having heard parallels being drawn between judicial review and line decisions at Wimbledon, but I think that my speech will be much more boring than that.

This Bill comes hot on the heels of a previous Bill, now the Offender Rehabilitation Act, which contains important changes such as the new levels of support to be given to offenders coming out of prison, which I support. This Bill in turn looks at the more punitive aspects of government plans, which involve being tough on crime and collectively are likely to put further pressure on our already overstretched prisons and the overworked Parole Board in particular.

These are difficult times for the Prison Service in England and Wales, with rapidly rising numbers, huge budget cuts, significantly reduced staffing levels and disturbing increases in serious assaults and suicide in custody. The Chief Inspector of Prisons, Nick Hardwick, has recently warned of a situation of “political and policy failure”. Although the number of offenders coming into the system over the recent past has decreased, in the past five weeks the prison population has increased by 734 people—the size of a large prison—and now stands at 84,533 souls, while the prison estate as a whole is holding 9,242 more prisoners than it is designed to hold. Cuts to the MoJ budget are due to total £2.4 billion by 2015. Now, like never before, it is time to give priority to alternatives to custody as a matter of urgency, which some of us have been trying to promote for years, and which are far cheaper, with far better outcomes in terms of reducing reoffending. The proposals in the Bill, I suggest, should be tested against these realities.

The scope of the Bill is very wide and I will focus my remarks on the first part of it. Clause 6 deals with electronic monitoring or “tagging”. Used appropriately, it is an effective tool, particularly when coupled with good supervision. However, subsection (3) of this clause gives new powers to the Secretary of State to make tagging mandatory, either by type of offence or type of sentence, thus limiting operational discretion and the flexibility to best suit the needs of individual offenders. These powers can be exercised by order, thereby limiting the role of Parliament to scrutinise, and any provision to guard against inappropriate use is currently vague. The code of practice just states that the Justice Secretary must implement a non-binding code of practice in relation to the processing of data gathered via tagging—in other words, a virtual free hand. The Joint Committee on Human Rights has said that,

“detailed safeguards in the Code of Practice will be crucial to ensuring that the processing of data”— that is, data gathered in such a way—

“is carried out in such a way that any interference with the right to respect for private life is necessary and proportionate to the legitimate aims pursued”, thus pre-empting the possibility for human rights to be ignored. The committee suggests that the Bill,

“be amended to make the Code subject to some form of parliamentary procedure”, to ensure that Parliament has the opportunity to scrutinise the adequacy of the relevant safeguards. I endorse that suggestion since these proposed changes, as they stand, are flawed and do not allow for proper parliamentary scrutiny, as they should do.

In Clause 7, there is a new provision allowing for recalled determinate-sentence prisoners to serve the whole remainder of their sentence in custody, rather than a fixed period of 28 days, as at the moment. This is if it “appears” to the Secretary of State that the prisoner seems highly likely to breach the conditions of their licence—thus punishing a prisoner on the presumption of future behaviour. There will be a new statutory pre-release test for these prisoners by the already overstretched Parole Board, which on top of all its other demands, will have to decide on the “likelihood of breach”, by making the same presumptions as the Secretary of State. It has been suggested that this clause places too much emphasis on the gamble of the likelihood of breach, at the expense of ensuring effective supervision and making a more positive and constructive gamble. In general, the chances of making good in the community are always higher out of prison, rather than in it. Good, effective supervision should always be built into the new release test. I look forward to the Minister’s response to this.

Under Clause 8, the Secretary of State is given the power to change the release test for these prisoners, subject to the affirmative resolution procedure, thus giving him an unacceptable degree of power. Parliament must be able to scrutinise and ultimately oversee all decisions that affect the fundamental rights of citizens, such as depriving them of their liberty. Citizens of this country must be confident that such decisions will always be the responsibility of the courts and not of a single individual—including any politician—who is here today and may be gone tomorrow. Any other way would be quite unacceptable.

Clause 25 deals with knife crime and was included at the last minute in the House of Commons. It includes minimum custodial sentencing for a second conviction. A previous conviction for “threatening” with a knife or offensive weapon will count as a first strike. The minimum sentence is a custodial term of six months for over-18s and a four-month DTO for over-16s. This clause is bound to lead to the inappropriate imprisonment of children and young people, estimated at around 200 children and 2,000 adults per year. The term covers offences ranging from threat and injury to the far less serious one of possession. It is well known that many children and young people in particular carry knives out of fear and in the vain hope of protection, and not to threaten others with the knife—I do not know if it is in vain, but it is certainly done in hope. In fact, possession-related offences have been dropping in the past three years—by 34% for children—and courts already have the powers necessary to deal with repeat offenders. I agree with many others that the measures in this clause are not necessary, could well cause more trouble than they seek to prevent and should be deleted. I sincerely hope that the Minister will give this suggestion serious consideration.

Clauses 29 and 30 deal with secure colleges. This proposal appears dear to the Government’s heart and we are told that considerable work has already gone into the idea. They think it sounds like a good idea, but I agree with the many who think it is a disastrous idea. The plan is that over time these colleges will replace all YOIs, STCs and some secure children’s homes, with the exception of a few for some particularly needy children. The rationale is to cut the costs of detention, and provide a more holistic and educational environment for young people. That sounds good. However, a glance at even the rough detail that is available shows a scenario that is not good at all.

I have a particular interest in this area, as I founded a school for children with special needs about 15 years ago. It is going strong and, I am proud to say, changing lives. It is predicated on being small—with around 35 children aged from 12 to 18 and it will never get bigger—so that every child gets all the individual attention he or she needs. There is no division into houses and it is run as a whole. It is like a family where everyone knows everyone else and its core mantra is, “It’s brilliant to be you”. The children in my school have to learn that they are valuable and worth something. They come from a range of complicated backgrounds, some staying most of the time and others going home at weekends. As I said, we change children’s lives.

A 320-place secure college is, by definition, not going to work, because a small scale is vital. Also, a regime of mixed ages and sexes, with children with extreme challenges in large numbers—however well divided up—cannot meet such children’s needs properly and is an impossible mix. The proposed idea of rules that authorise the use of force to maintain “good order and discipline” is a terrifying thought and bound to fail as well, being contrary to any understanding of best practice among professionals in the field. Is all this also to be delivered on a cut-price budget? That is an insult to the intelligence of the people who might be persuaded to run such a place, who are unlikely to provide anything like appropriate care.

So far there is no evidence of how offending rates will be reduced in the proposed system, how the education and training will work in reality or what the qualifications of the staff might be. For this cohort of children there is consensus among experts that boys should be separated from girls, and older children from younger children. The children are typically the most fragile, vulnerable, frightened—however they might seem otherwise—and poorly educated children. They are needy in so many ways and require an enormous amount of individual attention, patience and support. A culture in which use of force is authorised to enforce good order and discipline is against the law, sets itself up to fail and is, above all, completely abhorrent. It is astonishing that the Government are giving the idea the time of day, let alone allowing it to be the subject of serious debate in Parliament.

This planned pathfinder college would be vast, with 320 places, and it is inevitable that children of all ages will get lost. They would cause greater trouble than ever and find it impossible to have their needs properly met. Given the breadth and depth of need these young children have, and given that the Government are apparently prepared to spend £85 million, let them open, say, five small specialist units around the country and give a few children real help near their own homes. Secure homes are a good model, and that would be money well spent. Otherwise, pathfinder colleges costing £85 million when the MoJ budget is being cut and youth offending teams and other valuable services are being squeezed, would be a grotesque and unacceptable way of squandering our money and doing nothing but harm to our most vulnerable children.

There is a lot of material in this Bill that I have not touched on, but thankfully there are many noble Lords present who will do so much more ably than I, and I have spoken long enough. We will, of course, revisit all these issues during the passage of the Bill, which concerns some of the most challenging and needy citizens in the land.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench 7:09 pm, 30th June 2014

My Lords, as the Minister said at the beginning of this debate, the Bill makes significant changes to the justice system through measures that create some new offences and reform sentencing and the operation of the courts. It is not a legal aid Bill, but having chaired a commission on the future of advice and legal support in social welfare law—an interest that I declare—I am naturally anxious to probe the potential impact of the Bill on the provision of legal aid.

As regards Part 1Clause 28 in particular—questions need to be asked about the impact of this package of criminal justice measures, especially new offences and the cost of parole hearings, on legal aid costs. Has a legal aid impact assessment been undertaken, I wonder? Whenever new criminal offences are put on to the statute book, we need to understand whether this will lead to additional demand for criminal defence services and inflation in the criminal legal aid budget. It is important to know this in the current context when legal aid for both civil and criminal work is facing further cuts. Historically, greater pressures on the criminal legal aid budget have led to ever greater cuts in the scope of and entitlement to civil legal aid, since civil problems do not merit the same equality of arms in access to justice under the UK’s human rights obligations.

As regards the proposals for a new model of youth justice provision in Part 2 and the establishment of a new secure training college, what, if any, work has been done on locating support services at the college, such as help with claiming benefits on release, debt advice and housing options? The voluntary sector has an excellent record in successfully delivering such services in custodial settings, but I fear that many such services have been delivered by agencies such as citizens’ advice bureaux extending the outreach of their social welfare law advice services into prisons—sometimes through specific matched-funding formulas between civil legal aid and support from NOMS and probation services. Now that there has been a retrenchment in legal aid for social welfare law, I am worried that such services focusing on prisoners’ needs have declined, and given the changes to the scope of legal aid for prison law issues, the opportunity for advice providers to work with prisoners on a range of needs that might help them to change their offending behaviour seems to be diminishing. Money advice and financial capability support are particularly important for young offenders. Youth Access has consistently demonstrated the value of early interventions in working with troubled teenagers to develop money skills.

This brings me on to wider issues of financial exclusion and criminal justice that are relevant to the provisions of Part 3. The direction of criminal justice policy is for ever greater use of larger financial sanctions and penalties by the criminal courts. In Clause 42 we are presented with new proposals for magistrates’ courts and Crown Courts to impose on defendants mandatory court cost-recovery charges of between £100 and £900. This is in addition to the victim surcharge and any fines or compensation orders imposed. Yet all the social and demographic data that we have show us that defendants in magistrates’ courts are the most financially excluded in society. The MoJ’s own prison population data show that some 68% have been unemployed before conviction, and a survey of magistrates’ court defendants undertaken by Kemp and Souza in 2009 for the Legal Services Research Centre came out with a sample of more than 50% having incomes below £12,475.

Overreliance on financial sanctions in the criminal justice system may explain in part why the MoJ has such a poor rate of fine collection. Sometimes the Government can spend more on the cost of enforcement than they can actually recover in fines and other financial penalties. I note that the impact assessment puts the estimated costs of introducing, administering and enforcing the new criminal courts charge at £20 million a year. Is this really economical if only low rates of collection can be expected? One of the problems is that courts do not have nuanced systems for determining ability to pay, as the magistrates’ courts’ means-assessment form misses out a lot of priority and non-priority debt such as fuel bills and rent arrears.

Clause 44 suggests that the Government’s solution to the enforcement gap is greater discretion for fines officers. However, as appeared when we debated the previous criminal justice legislation, the Crime and Courts Act, these enforcement functions are being increasingly outsourced to the private enforcement industry. That means large private firms of bailiffs, and many noble Lords will have concerns about the methods and record of these firms.

This brings me back to my earlier point about the importance of access to timely and appropriate debt and money advice, and the importance of this sector being able to work within the criminal justice system to help to turn lives around. It has the tools to help people and the means to properly assess, via the common financial statement, how defendants can meet their liabilities on a very low income. A better approach would be to bring money advisers into the magistrates’ courts to run fines clinics and work with the fines officers.

Many other provisions on courts and tribunals in Part 3 merit greater scrutiny, including those on civil appeals and wasted costs. We need to think more imaginatively about how our administrative tribunals are funded and how users are supported. I should like a system to be put in place, for example, whereby tribunals can recover costs from government departments that have shown poor decision-making.

Finally, I turn to the provisions of Part 4 on judicial review. Nothing I can say can begin to match the withering attack directed at this part of the Bill by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Others have commented on how the higher threshold set for granting permission to proceed with judicial review and the new cost liabilities on interveners and third parties could have a significant deterrent effect for citizens and their representatives pursuing their legitimate interests. These provisions, however, must also be seen in the context of some of the recent, post-LASPO, legal aid regulations that have restricted legal aid for pre-permission work in judicial review cases. Even though such cases remain within the scope of legal aid funding, the combined effect of legal aid changes already introduced alongside the judicial review changes in the Bill will surely act to cut a key avenue for citizens who need redress when unreasonable and unlawful decisions are taken by the statutory gatekeepers of welfare benefits, social housing and community care services.

In the time that remains, I want to say something about a group of victims of crime who are often forgotten: the children and adults dependent on offenders sent to prison. They feel isolated and ashamed. Prisoners’ children are often bullied and stigmatised. The experience of witnessing a parent being arrested can be extremely traumatising for a child, who may even be too young to fully understand what is happening or where their mum or dad is being taken. The statistics serve solely to emphasise their vulnerability: they are twice as likely as other children to experience behavioural and mental health problems, and they are three times as likely to go on to commit an offence. There are an estimated 200,000 children with a parent in prison at any one time, nearly three times the number of children in the care system, yet there is no official way of identifying them or ensuring their need for support is met. No one currently asks about them, so nobody looks out for them or cares about them.

The Families Left Behind campaign is therefore calling for a statutory duty to be placed on courts to ask an individual whether they have any dependants when they are sentenced to prison or held on remand. If they do, steps can then be taken to ensure that appropriate care arrangements are in place. They may be children, elderly parents or disabled partners: they are all people who are at risk of being forgotten when their parent or carer is sent to prison. The members of the Families Left Behind campaign and charities such as Barnardo’s, PACT and Partners of Prisoners can all give examples of children who have finished their day at school expecting their mother or father to be there to pick them up, only to find that there is nobody. Why? Because their parent had not expected to go to prison and had not made arrangements for the end of the day, let alone for the rest of their sentence.

An amendment to require courts to ask offenders this simple question and to check whether there are care arrangements in place would give offenders an opportunity to disclose whether they have a dependant. It would then no longer be so difficult to ensure that they get the support they need. Such an amendment would not be resource-intensive. Where care arrangements are already in place, no further action would be necessary. Where they are not, all that would be required would be a referral to a relevant local authority care provider.

The Bill provides an excellent opportunity to make a difference to the lives of these children and adults. It would be a tragic shame if the Government, while toughening up the system of justice delivered to criminals, missed the chance to help crime’s forgotten victims.

Photo of Lord Black of Brentwood Lord Black of Brentwood Conservative 7:21 pm, 30th June 2014

My Lords, I may be about to enter the record books for the shortest ever Second Reading speech. My thunder was well and truly stolen by the Minister in his opening speech. I had intended to talk this afternoon at some length—something that I can now spare noble Lords—about the serious problems arising from Clauses 51 and 52 of the Bill on contempt, which, although crafted with the best of intentions, raised profound implications for freedom of expression and the public’s access to information. Instead—duly declaring my interest as director of the Telegraph Media Group—all I have to do is warmly to welcome the Attorney-General’s decision to drop these clauses from the Bill, following a full and frank consultation with media organisations, including the Newspaper Society, the Media Lawyers Association and the Society of Editors, and to praise him for listening to the arguments made, including those of the Joint Committee on Human Rights.

I should add that the whole area of jurors’ potential access to digital archives, which was at the root of those clauses, is of course one that needs to be treated with the utmost seriousness. It seems to me that Clauses 54 to 58 on juror research are a sensible and proportionate way to do that in an online age, as was said by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I should add that the media, too, maintain a great deal of vigilance in this area. All mainstream media organisations take the greatest care, when criminal proceedings become active, not to put material on the front pages and their websites, where such material could create a substantial risk of prejudice. That highly effective system, working alongside the new offences created in the Bill, should serve well the interests of justice, which is our primary concern. That comes in at just over one minute.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues) 7:23 pm, 30th June 2014

My Lords, I am sure everyone in the House will be most grateful to the noble Lord, Lord Black, for that intervention. I fear I am not going to be quite so brief. I will address Clause 28 of the Bill, concerning the possession of pornographic images of rape and assault by penetration. I will support my noble friends Lord Beecham and Lord Kennedy throughout the passage of the Bill.

The Bill amends Section 63 of the Criminal Justice and Immigration Act 2008 to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. Possession of such pornography is an existing criminal offence in Scotland. We on these Benches welcome the Government’s intention to extend the extreme pornography offence. I wish to thank Professors Clare McGlynn and Erika Rackley of Durham University for all the research they have done and the excellent evidence and briefs they have prepared at every stage of the Bill. I also thank End Violence Against Women and Rape Crisis South London for the research they have carried out and the work they have done in their campaign to ban rape porn, which involved writing to the Prime Minister in June last year. I will quote some of this letter, which states:

“The vast majority of images depicting rape are lawful to possess, although they are banned in Scotland under its Extreme Pornography legislation”.

It goes on to say:

“We are talking about sites that explicitly advertise sexually violent content and with titles such as ‘Father Raped Drunk Daughter’ and ‘Incest With Daughter at Family Cabin’”.

Fifty of the top accessible rape porn sites can be found through a Google search. Some 78% advertise rape content of under 18 year-olds—in other words, schoolgirl rape. Some 67% advertise rape content involving knives and guns; 44% advertise rape content involving incest; and 44% advertise rape content where the woman is unconscious, drugged or semi-conscious. Of those being assaulted, 100% are female; 82% of perpetrators use restraint by force; 65% of the women express pain; and 71% show signs of visible distress.

The Government have a coherent strategy on violence against women. In the Bill they recognise the failure of the current law to take a strong stand against the normalisation of sexual violence. Indeed, the Joint Committee on Human Rights says in its report on the Bill:

“We welcome, as a human rights enhancing measure, the provision in the Bill to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. We consider that the cultural harm of extreme pornography, as set out in the evidence provided to us by the Government and others, provides a strong justification for legislative action, and for the proportionate restriction of individual rights to private life (Article 8 ECHR) and freely to receive and impart information (Article 10 ECHR)”.

None the less, criminalising the possession of extreme pornography is a serious matter. Legislative action and any potential restriction of an individual’s rights under Articles 8 and 10 must be taken only if we can be certain that there is sufficient justification. Our liberal democracy rightly champions the values of equality and dignity, which are directly challenged by much violent pornography, especially rape pornography, thus demanding regulatory action. Surely the law has a precautionary role to anticipate, preclude and counter the risk of harm to society and individuals.

There has been in the past a demand for evidence of direct causal links between pornography and sexual violence. I think it is now accepted that that is oversimplistic. Understanding the drivers that lead to the commission of sexual offences is extremely complex and cannot be reduced to simple explanations. Challenging and seeking to prevent sexual violence will require a multifaceted approach, including challenging the normalisation of sexual violence through pornography.

The argument is not that the person who views extreme pornography, such as pornographic images of rape, will then go on to commit rape: rather, it is that the proliferation and tolerance of such websites and images, and the messages they convey, contribute to a climate in which sexual violence is condoned and seen as a form of entertainment. Rape pornography sustains a culture in which a “no” to sexual activity is not taken seriously. It promotes the myth that women enjoy being coerced into sexual activity, and that they enjoy violent, non-consensual sexual activity. The cultural harm posed by such depictions is a strong justification for legislative action and for the proportionate restriction of an individual’s rights.

All this was recognised in the United Nations fourth World Conference on Women report, which refers specifically to depictions of rape as contributing to the context of continuing violence against women. It states:

“Images in the media of violence against women, in particular those that depict rape or sexual slavery as well as the use of women and girls as sex objects, including pornography, are factors contributing to the continued prevalence of such violence, adversely influencing the community at large, in particular children and young people”.

This is also a culture in which, as research for the Children’s Commissioner suggests, young children are turning to pornography for guidance on sex. They are engaging in risky behaviour as a result of viewing pornography. They are uncertain about what consent means and are developing harmful attitudes towards women and girls.

That does not mean that there are not areas which we might hope to explore during the further stages of the Bill in relation to this clause. The first is whether there should be the inclusion of a provision stating clearly that the “realistic” portrayal of acts in question refers to both real and simulated images. We will suggest that we may need an amendment to clarify that exactly. An amendment to this effect was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in the light of an explanation that the Bill’s Explanatory Notes would clarify that the offence,

“would cover both staged and real depictions of rape or other penetration”.—[ Official Report , Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]

This may not be adequate, and I would appreciate some clarification, which might appear on the face of the Bill.

Secondly, we might consider the inclusion of a provision requiring reference to be made to the context—the description, sounds and narrative—of the image when determining whether it is one of rape. The context of an image is valuable in determining whether pornographic images are “extreme”. Simulated images of rape are widely available on free-to-access pornography websites. The images are often accompanied by banners and text which glorify rape and sexual violence: “These girls say no but we say yes”; “See what happens when men lose control … whether she says yes or no … Damn, the guys enjoy a ‘no’ more”, for example. The narrative of the story similarly conveys such meaning, as does the soundtrack. This contextual material makes it clear that the image is intended to be of rape and other non-consensual sexual activity. The non-consensual aspect, or what makes an image one of rape, is therefore clear from the overall context.

The Criminal Justice and Licensing (Scotland) Act 2010 includes a provision to ensure that the context of the image—the descriptions or sounds accompanying it—is relevant to deciding whether an image is extreme. This ensures that simulated images of rape come clearly within the remit of the legislation, whether or not the act was itself consensual—that is, whether the actors in the image were consenting.

Thirdly, we need to think about whether we clarify the defence of “participation in consensual acts”. The target of the extreme pornography legislation is not, and should not be, private depictions of consensual sexual activity. Consideration might be given to clarifying the scope of this defence so that it permits the possession of images which are taken of those participating in consensual acts and which are for private use only.

We might also have the inclusion of a “public good” defence. Section 4 of the Obscene Publications Act 1959 includes a defence where the material in question is for the public good. The absence of a “public good” defence in the extreme pornography law reinforces the fear that the provisions could be used to criminalise the possession of legitimate works of art, film and such-like. The introduction of a “public good” defence might demonstrate that there is no intention of bringing educational, legitimate artistic or similar works within the scope of the legislation, and it would help to ensure that only harmful material is covered by the provisions.

Your Lordships’ House may also wish to consider the issue of an image being obscene. The current law provides that for an image to be extreme, it must be one which is,

“grossly offensive, disgusting or otherwise of an obscene character”.

The use of the term “obscene” has long been criticised on the basis that it is typically deployed to catch material which is not only harmful but causes offence or disgust. I would appreciate a discussion on that because I am not clear whether that is an expression that we should continue using.

On the other hand, my honourable friends Diana Johnson, Helen Goodman and Dan Jarvis in the Commons brought forward an amendment which used that description. They proposed it in response to the fact that the Prime Minister has promised to equate online and offline restrictions to regulate pornography. It was a promise that we in the Opposition welcomed and we would like to see it implemented. We think that the Government’s proposals in this Bill are a welcome step forward, but they are quite a small step forward and we would like further clarification.

The Government’s proposal is to ban the possession of pornography which is deemed to be,

“grossly offensive, disgusting or otherwise of an obscene character”, and a realistic depiction of rape or assault by penetration. Both elements of this test are complex and open to wide interpretation. Therefore, we may propose an amendment which leaves in place the first part of this test and replaces the second part with the description of rape employed by the British Board of Film Classification—that is, content depicting,

“sexual activity which involves real or apparent lack of consent. Any form of … restraint which prevents participants from indicating a withdrawal of consent”.

This simplifies the law in two ways. First, it makes it clear that we are criminalising the possession of porn depicting rape scenes, even if they are staged. Secondly, our amendment would ensure that content was banned if it showed sexual assaults and maybe even rapes but not the act of penetration. Has the Minister had any discussions with the British Board of Film Classification on this matter? I should say that I intend to invite the board to come to the House to discuss these matters with any noble Lords who may be interested.

I am looking forward to the discussions and I am very grateful to the Minister for agreeing to see me to talk about these matters.

Photo of Lord Woolf Lord Woolf Crossbench 7:36 pm, 30th June 2014

My Lords, when I was a relatively young judge, a long time ago, and I had to travel on judicial business, it was suggested by the then Lord Chancellor’s Department that I should travel under a nom de plume for my safety. It was suggested that Mr Sheep would be an appropriate name. I am afraid that I have reluctantly come to the conclusion that, as regards the rule of law, the Lord Chancellor, Mr Grayling, is showing signs of becoming a wolf, so far as clothing is concerned, rather than a Lord Chancellor. The judiciary, I fear, may be the sheep. I hope that he is not doing this deliberately. I believe that he is sincere in his many protestations that he is seeking to fulfil his oath and his special statutory responsibilities, but he has to be judged by his actions, to some of which I am about to refer, as well as his words.

Of course, if the Minister were able to drop Part 4 from the Bill, I could compete—just—with the noble Lord, Lord Black, but there is no sign of that yet. I should make it clear that there are aspects of the Bill that I welcome. There are others about which I have reservations, but it is Parts 4 and 5 that I am really concerned about. They have to be considered against the role of judicial review in our judicial system. I therefore disclose my joint editorship of De Smith’s Judicial Review and Zamir Woolf on declaratory relief. Both volumes make it clear why what is being proposed is contrary to the rule of law. It has been suggested that what is proposed would undermine confidence in the judges and that it might be inspired for that purpose. Again, I hope that that is not the case. However, that might be understood if I explain judicial review in a little more detail than has happened hitherto. I have had a unique opportunity to be involved in the procedure.

The procedures—not the task of a judge scrutinising the Acts or the Executive—go back to 1978, when I had just become a High Court judge after being the “Treasury Devil”, as my noble and learned friend Lord Brown was subsequently. Chief Justice Widgery gave me, together with others, the task of devising a new procedure of judicial review. A handful of nominated judges, of whom I was one, were given the responsibility of hearing these cases in accord with the new procedure. Judging by the number of cases heard, it was a great success. As Lord Widgery said, if you provide a motorway, the public will use it. The old procedure did have advantages until it was swamped. It provided protection for the Executive as well as the public, but a new procedure was desperately needed. The advantages for the public were that judicial review was a means by which their rights could be vindicated, but there was also protection for the Executive. This was due primarily to the requirement for leave to bring prerogative writs, which was adopted into judicial review, and to its discretionary nature, which gave judges powers to mould the procedure so that it would fit the needs of different cases.

The procedure was expeditious because it did away with the need for oral evidence; a case could be dealt with on the papers. Discovery was usually unnecessary because at every stage the procedure gives judges a wide discretion. That is needed. The judge can tailor the procedure to meet the case. It is a remedy of last resort and it cannot be used if there is another alternative. If an application serves no purpose, it is dismissed at the outset. It has been admired by many jurisdictions, but not widely adopted because a requirement of leave would be regarded by many of them as being unconstitutional. In these respects, judicial review has always been tilted against the citizen in a way that other litigation is not. Saying it was tilted against the citizen in ways that other litigation is not was done deliberately because of the recognition of the need to protect the Executive. After all, it is the Government’s job to govern.

I have no doubt that if judicial review had not been such a success, there would have been a much stronger movement in this country for an entrenched constitution.

It is the discretion of the judges which means that judicial review is at the very heart of the rule of law in this country. This does not mean that the procedure cannot be amended. Of course it can, and it has been amended regularly over the years, including amendments for which I should take some responsibility, and others for which the noble and learned Lord, Lord Brown, should take responsibility. However, it means that if you are going to interfere with the procedure, you must be sure that you understand the danger of the unintended consequences that could result from your actions.

I draw attention here to what has recently happened to legal aid for judicial review, which we have already heard about. If the Government had understood judicial review, they could not possibly have brought in the changes to judicial review legal aid that they have. It is a procedure that is designed to be used by lawyers; it is not one that is designed to be dealt with by individuals acting in person. I fear that judicial review will be less efficient and more expensive because of the action the Government have taken in regard to the provision of legal aid.

I come to the proposals set out in the Bill. They interfere with the ability of a judge to provide, so far as is practicable, a level playing field. So far as it is practicable, the needs of the Executive and of the public are served. There are conflicts, and it is therefore essential that judges should hold the ring. It is quite impossible to anticipate what the cases that come before the courts will require, but the procedure is both wide and flexible. I find it very difficult to understand what possible reason there is that is capable of being substantiated to justify what is set out in Part 4 of the Bill. I fear that it is due to ignorance. That is not an excuse, but it underlines the importance of the need to understand what you are doing. Changes are being made with regard to cuts in legal aid because it is now appreciated that they will not work. I hope that there will be second thoughts on Part 4.

I turn briefly to the statutory provisions. Clause 64 states that the judge “must” refuse leave. That is wholly inconsistent with the requirements of discretion. The present law uses “may”, and there is a world of difference. Under Clause 64, information on financial resources has to be provided by applicants. That is a totally novel idea. As far as I am aware, in no other area is such an imposition put on an application for judicial review. It is just unacceptable. It is a barrier that is out of accord with the rule of law.

Clauses 66 and 67 deal with costs where a party intervenes. Sometimes, but not in many cases, it is very useful for there to be interveners. Under the provisions here, you will not be able to receive any assistance from interveners.

Clauses 68 and 69 deal with capping the liability of an unsuccessful litigant to pay costs. These provisions have been explained very ably by the noble Lord, Lord Pannick, and others. Again, it is an effort by the judges to obtain a level playing field. It is known that applications for judicial review that should be heard in the public interest will simply not be heard and will not come before the courts, to the disadvantage of the public, if litigants have to pay costs they cannot afford. The courts look into the matter and put a restriction on the level of costs for which a litigant is liable so that they have confidence to move forward. However, to do that after the permission stage is pointless because it will never get to that stage. I am at a loss to understand how that could have been suggested.

One of the reasons that has been put forward as a justification for the provisions to which I have referred is that too many cases are going to judicial review. I have to tell the Minister that the number of cases is due largely to incompetence on the part of the Executive and other public bodies. If they did their job properly, there would be no need for judicial review. One of the great virtues of judicial review is that it sets standards. Public servants have to realise that they cannot take short cuts. There was a time, when I was directly involved in these matters, when the standards of the government legal service were exemplary. I am afraid that those standards have dropped through lack of resources and because, unfortunately, civil servants are moved too frequently. In the old Lord Chancellor’s Department, they would remain for the duration of their career. That may not be appropriate for other departments, but it had considerable virtue in the Lord Chancellor’s Department.

I suggest that there is really only one action that the Government can properly take in this case. They should take Part 4 away and look at it again. It should cease to be part of the Bill. If it remains, it will be a blot on the reputation of this Government in terms of their commitment to the rule of law. They should realise that. They should realise that these provisions have been strongly criticised by the judiciary and in this House. Part 4 really is not something that should grace the statute book.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat 7:49 pm, 30th June 2014

My Lords, it is always a great privilege to follow the noble and learned Lord, Lord Woolf. If ever a wolf showed that he was not a sheep but how to bite with gentle ferocity it was tonight in this House.

My verdict on the Bill is that there is much to support but possibly even more to amend. It is a matter of concern that a Bill has arrived from the other place in such poor order requiring so much amendment. I support in general terms the powerful and excellent speech of my noble friend Lord Marks of Henley-on-Thames and the persuasive remarks of the noble Lord, Lord Pannick. I want to concentrate on two aspects of the Bill that have caused widespread concern. My first point relates to the Bill’s provision for secure colleges, which has been widely discussed, but I want to pick up on a couple of specifics.

I applaud the reduction in the number of minors held in custody in recent times and the work of the Youth Justice Board under the chairmanship of Frances Done. I look forward to an equally fruitful period under my noble friend Lord McNally, whom I am delighted to see in his place and with whom I, along with many others, have already had discussions. He is showing great enthusiasm and a huge appetite to learn about his new post.

My observation during my period as president of the Howard League for Penal Reform persuaded me beyond any doubt about the important role of education within the custodial environment. I will never forget the maths certificates, all at highest grades, that I saw on the wall of a 17 year-old prisoner. When he informed me of his wish to be a maths teacher when he was released and able, as he hoped, to go to university, I asked him, “How was your maths when you were at school outside this place?”. His reply was, “I never went to school, sir”. He had been the beneficiary of excellent education, not on a large scale, but in a targeted way, in a custodial environment where it just so happened that the education was extremely good, at least for him. I agree entirely with my noble friend Lady Linklater that small institutions are best equipped to deal with the multiple needs of young men such as the one to whom I have referred. Indeed, I would also cite the experience and the excellent successes of the now sadly defunct Peper Harow Foundation, which achieved much in the same context and I know is well remembered by a number of Members of this House. I hope that the young man to whom I have referred has now found his true vocation, which was started through good education in custody, and has gone on to university and become a maths teacher.

I absolutely agree with the Secretary of State and my noble friend the Minister this evening that there should be a strong focus on education in custody. However, the cohort of children in custody has complex issues and needs. These were well described by the noble Lord, Lord Ponsonby, and I do not propose to repeat what he said. But what is proposed in the Bill needs to be examined in relation to two particular issues. The first is the size of the institution and above all the fracture from home that such a large institution is likely to cause, by definition, by bringing people possibly hundreds of miles from their homes. The second is the provision for physical restraint as it is described for good order and discipline.

The Government’s commitment to a large institution is, in reality—this is clear from the papers—an economic decision, not one related to the needs of the children in custody. Real concerns have been expressed to us all by many experts about bullying, safety and, above all, resettlement from a large institution distant from home. For this group of offenders, one size simply does not fit all.

Restraint is an extremely important issue, which is dealt with with extraordinary superficiality in the Bill. In 2006, with others, I produced a report for the Howard League on the use of physical restraint on children in custody. It was quite evident that the rules varied from institution to institution and that the techniques for the use of restraint in some places were violent and relied on pain compliance and in others were quite different. What is absolutely clear was that restraint was very rarely needed. In the best institutions, compliance could be obtained by de-escalation techniques, as I think they are generally called—in other words, sitting down and taking the time to talk to the young person concerned about why he or she had kicked off and how the problems could be resolved. That technique leads to a constructive outcome.

The use of pain compliant violence and other forms of physical restraint leads to resentment and trouble in custodial institutions. There was clear evidence when we were doing the Howard League report that kicking off and being restrained was almost a badge of office for young people. It is asking for trouble to allow private sector institutions to form their own rules for the use of restraint. It is just too vague to be credible and it will lead to numerous cases in the courts for damages and, if it is possible, some judicial reviews.

Clause 67, too, has been addressed by a number of Members of your Lordships’ House. It deals with the proposal to make interveners liable for costs arising from their part in public interest legal challenges. I agree entirely with the noble Lord, Lord Pannick, that this proposal is not necessary. The courts already have adequate powers to refuse an application to intervene or penalise inappropriate behaviour by interveners through costs actions. It rarely happens. I have not been able to find a case in which it did happen, because on the whole interventions are constructive. Indeed, the proposal is counterproductive. It will result in deterring parties from intervening, depriving the High Court and the Court of Appeal of important legal and factual information that leads to the right decision. In some of these public interest cases, it is not a game. These are important cases and what matters is doing right to citizens and of course to the Government.

The role of interveners has been praised on many occasions. The noble and learned Baroness, Lady Hale, said in 2013 that the more difficult the issue,

“the more help we need to try to get the right answer”.

She described the potential for interventions to be “enormously helpful”. The noble and learned Lord, Lord Hoffmann, in the case of child E against the Chief Constable of the Royal Ulster Constabulary in 2008, explained that permission to intervene is given,

“in the expectation that their”— the intervener’s—

“fund of knowledge or particular point of view will enable them to provide … a more rounded picture than it would otherwise obtain”.

Interveners add value to the court. They provide the sort of analysis that sometimes is not readily available to the party, such as international comparison. We should remember that it is not only NGOs that intervene; government departments intervene frequently in judicial review cases, principally with the good purpose of protecting the legislation and the policy for which they are responsible. For example, in the case of Yemshaw v Hounslow London Borough Council in 2011, a case that went to the Supreme Court, the Secretary of State for Communities and Local Government intervened in support of a wider definition of domestic violence.

Clause 67 makes sweeping changes to interventions in judicial review cases. It appears to require the court to order that an intervener—and this is incomprehensible to me—must pay the other parties’ costs arising from the intervention. Where another party applies for such an award to be made, the court will have discretion to depart from this rule only in exceptional circumstances. That is absurd, especially when you consider that many interventions are made in writing or by short submissions to the court. The inevitable consequence of this is that charitable and not-for-profit organisations will no longer be prepared to provide their expertise to assist the court in cases of wide public importance. How could trustees reasonably agree to support an intervention when it could result in losing tens of thousands of pounds or more in costs, jeopardising, in some cases, the existence of small charities?

The senior judiciary, of which we have some very distinguished representatives in this House, some of whom have spoken tonight, has spoken out this year in relation to these proposals. It said:

“The court is already empowered to impose cost orders against third parties. The fact that such orders are rarely made reflects the experience of the court that, not uncommonly, it benefits from hearing from third parties. Caution should be adopted in relation to any change which may discourage interventions which are of benefit to the court”.

There is no need for this new proposal. I agree entirely with the noble and learned Lord, Lord Woolf, that the Government should take this proposal back to the drawing board. The court already has wide powers to penalise parties, including interveners, who act irresponsibly or to award costs against interveners who play a leading role. There is no problem. The Government are creating a problem when it does not exist and does not require a solution. In your Lordships’ House, we can ensure that that consequence does not follow.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 8:01 pm, 30th June 2014

My Lords, I begin by assuring the noble Lord, Lord Carlile, that Peper Harow, in the name of Childhood First, is alive and well. Indeed, my noble and learned friends Lord Woolf and Lady Butler-Sloss and I have the honour and pleasure of being patrons of the organisation.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

I apologise to the noble Lord. I remember it being burnt down and have not kept up with developments since.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

The house itself was burnt down, but the organisation is functioning in smaller houses, which is much more effective than having one large house.

I propose to speak only about Part 2 of what was already a vast Bill before other clauses were added during its passage through the other place. That is not to say that I do not have concerns about Clauses 1 to 5, which will add significantly to the work of the already overstretched Parole Board, about Clause 6, which appears to be a badly rushed measure on which the Minister in the other place was unable to provide information, either about its projected cost or its alleged benefits, or about Clauses 7 and 8, about which there must be doubt because the impact assessment seems to ignore the inevitable number of breaches of supervision by short-term prisoners, discussed many times during the passage of the Offender Rehabilitation Bill. I leave Part 4 to my noble and learned friends with great confidence, enhanced by their contributions to today’s debate.

My concerns about Part 2 began with the Government’s published response to the consultation on Transforming Youth Custody, in which I was disturbed both by the lack of detail about the proposed secure college and the phrase in the final paragraph of the ministerial foreword, signed by the Secretary of State and the Deputy Prime Minister,

“we are committed to delivering at pace”.

That suggests that this is a pet project of the Secretary of State, which he is determined to push through as quickly as possible whatever anyone says. My concerns were further fuelled by three things that the Secretary of State said at Third Reading of the Bill in the other place. First, he said:

“We are not a Government who legislate without taking into account the views of Parliament”.

That claims sounds a little hollow when I recall the deliberate denial of parliamentary scrutiny of the reordering of probation. Secondly, he said that,

“the rules that underpin the secure college provisions will be subject to public consultation. They were published during the passage of the Bill to benefit from the wealth of expertise within the youth justice sector”.

Bearing in mind their importance, as mentioned by the Minister, it is essential that this House sees and scrutinises those rules. I therefore ask the Minister why they have not been available to the House before we start work on the Bill. Thirdly, he said:

“I urge the Opposition to think again before they play politics with the future of young people”. [Hansard, Commons, 17/6/14; cols. 1070-71.]

Like many other noble Lords, I welcome the Government’s stated ambition of creating secure educational establishments where core learning skills, vocational training and life skills will be the central pillars of a regime focused on educating and rehabilitating young offenders. I also welcome the acceptance of the measures introduced by the Children and Families Act for the treatment of those with special educational needs. As an independent Cross-Bencher, my opposition to this proposal is nothing to do with party politics, but entirely based on my practical experience as Chief Inspector of Prisons, when I inspected every young offender institution, and many secure training centres and secure children’s homes, in England and Wales. I found good establishments and bad establishments. What united the good ones was that their governors were trying desperately to achieve what the Government state to be their ambition, while regretting that their attempts were hampered by a lack of resources, including time—the average length of sentence being a bare 78 days. My inspection experiences and my subsequent involvement with the youth justice system lead me totally to disbelieve the maths of the Government’s claims and to ask the Minister: first, whether there are any maths; secondly, on what they are based; and thirdly, why they have not been made available for us to scrutinise.

Having seen many wise, dedicated and experienced governors try and fail to squeeze more out of their pint pots, I have to admit that what I dislike most about this proposal is the presumption, based on no evidence, that private sector companies working for profit can come in and do what experienced professionals have failed to achieve, in larger establishments, with larger catchment areas and at less cost. Such a presumption suggests that no one has worked out the cost of essential custodial educational staff/offender ratios, because, if they had, they would have realised that the cost of ensuring there are sufficient skilled custodial staff is bound to have an impact on the provision of purposeful activity and vice versa. The risks that private sector companies take with staff numbers in adult prisons are simply not acceptable when they are responsible for safeguarding this vulnerable age group.

The proposal also confirms that pace has encouraged the rejection of the unanimous advice from experts that small establishments are far better and safer if anything is to be achieved with this particular group, and for the need to preserve the principles of maintaining closeness to home, development of good family contact and links to the local authorities of children in care. If pace means commissioning £85 million of limited funding on an unsubstantiated proposal before it has been scrutinised and approved by Parliament, without knowing whether it is possible to implement what is proposed, it is better described as playing with the future of young people.

The Minister said that the commission to build would not be confirmed unless and until the Bill receives Royal Assent. I submit that it is bordering on contempt of Parliament for the Government to announce the award of the £85 million pathfinder contract to Wates to build what they describe as a purpose-built 320-place secure college on a site at Glen Parva in the East Midlands before the Bill has completed its passage through Parliament and without any idea about the requirements of the educational contract whose delivery the build is meant to facilitate. Far from it being designed to satisfy secure college aspirations, Wates has been commissioned to build what was agreed for a young offender institution on the same site in 2009 but subsequently not built. The Minister’s mention of Titan prisons reminded me that it was Wates that told me of Jack Straw’s infamous direction that they were required “to hold as many people as possible as cheaply as possible”. I hope that the same has not been directed by the Secretary of State in connection with the proposed secure college.

Other noble Lords have mentioned paragraph 10 of Schedule 6, which allows staff to “use reasonable force” to ensure “good order and discipline”. I fail to see why this paragraph is necessary, because an independent review of restraint in juvenile secure settings chaired by an eminent adolescent psychiatrist produced admirably clear minimum rules that were accepted and published by the previous Secretary of State. Presumably they are not tough enough for Mr Grayling. I could go on but I will reserve my fire for Committee.

Before that I would like to make an appeal to the Secretary of State through the Minister. Bearing in mind that, thanks to the welcome reduction in numbers, largely achieved by the efforts of the Youth Justice Board, the nature of the child prisoner population has changed from its far wider representation into being a toxic mix of the most violent, troubled and damaged. That change gives him a perfectly valid reason for dropping his proposal and putting it into the aspirational basket. All would not be lost because he could then task the newly appointed director of young offenders, if paragraph 20 of the Government’s response to the consultation is to be believed, to conduct a deliberate and costed examination of what improvement and change was possible with the available resources, including quantifiable evidence to support his claim that secure colleges will reduce reoffending rates and show how such a reduction will be achieved in practice. Meanwhile, in the absence of proof, it would be irresponsible of the Government to ask this House to rubber stamp this proposal and responsible of them to prove that I am wrong by producing the evidence that justifies the pace with which they are pursuing their proposal with unsubstantiated ambition.

Photo of Lord Bach Lord Bach Shadow Spokesperson (Foreign and Commonwealth Affairs) 8:11 pm, 30th June 2014

My Lords, my remarks will be directed to Part 4 of the Bill. However, I cannot resist noting how it was exactly this type of Bill—perhaps best described as a Christmas tree Bill which is also introducing new offences—which was the subject of so much stern criticism from the then Opposition in the previous Parliament. Now, of course, the present Government commend the good sense of putting so many disparate elements—I doubt we have had them all yet—into one Bill and then, conveniently, adding more and more offences to the list. One perhaps should not be surprised by this change of heart, but the contrast in attitude is striking.

As to Part 4 and its attack on judicial review, we should not be surprised at all. It is no use claiming, as the Minister did, that these proposals are technical—he did not use the expression de minimis, a mere tidying-up operation, but that is what he perhaps meant—and should be seen just for themselves. Even if they stood alone, they are much more serious than that.

However, the provisions do not stand alone. They are the latest instalment in a series of provisions that are consciously and deliberately undermining our precious system of civil justice and, thus, every citizen’s right to access justice. I agree with what the right reverend Prelate the Bishop of Oxford said in his remarks.

Let us begin with the Government’s first step, taken days after they came to power, to administratively cut back the number of cases in which civil legal advice was available. The numbers declined in the first three years from 485,000 to 293,000. Then, of course, came legislation in the form of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, LASPO. This removed legal aid from the majority of social welfare law advice and, since its implementation exactly 15 months ago tomorrow, the results, frankly, have been devastating—as the Ministry of Justice’s own recently published Legal Aid Statistics in England and Wales 2013-2014 show in painful detail.

It is ironic in the extreme today that, looking back, the underlying message from government Ministers while LASPO was being debated was that Parliament should pass those provisions because there were two safeguards that would protect the poor claimant. One was exceptional cases funding. Noble Lords know now that that is a farce. Of 1,320 non-inquest applications for exceptional funding last year, how many were granted? Sixteen—not one in the field of welfare benefit; not one in the field of housing. Those statistics come from the document to which I referred a moment ago.

The other safeguard, we were regularly told, was judicial review, which was safe in the Government’s hands. Even if there was no legal aid funding any more for benefit, debt or employment advice, there was always judicial review available to all when appropriate and when needed. This House voted down Part 1 many times. It did not like what the Government were doing but eventually it allowed the Government their way. Is it too fanciful to think that one of the reasons it did this was because of the promise of Ministers relating to judicial review?

As the right reverend Prelate the Bishop of Oxford said, eight days after Royal Assent the first judicial review consultation was announced. Of course, LASPO regulations have been debated in your Lordships’ House over the months. The Government were defeated on one but did absolutely nothing about it. Of course, the inevitable attack on judicial review has begun and is now well under way.

The Lord Chancellor’s accusation that judicial reviews are the preserve of left-wing pressure groups, and other such nonsense, has set the background for the scene. Then came the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014, which by negative resolution, unbelievably, radically altered the long-standing principle by saying that unless permission is given, legal aid practitioners will not be paid—unless of course the legal aid authority agreed, which was not likely to happen.

With this one move, as was strongly argued in this House by Peers from across the Chamber on 7 May last in debating the regret Motion of the noble Lord, Lord Pannick, the Government have just changed the nature of judicial review. It will without doubt mean that some claimants, often poor and sometimes disabled, who have a good claim will not be able to find a lawyer to represent them. As the Joint Committee on Human Rights put it,

“the uncertainty and financial risk for legal aid practitioners would affect both the number of practitioners willing to carry out public law work and the kinds of cases they would be willing to take on in future”.

Our own House of Lords Secondary Legislation Scrutiny Committee was critical, not least of the level of uncertainty.

That brings us to Part 4 of the Bill. The proposals in Part 4 cannot just be viewed in isolation; they are part of a process that began when this Government came to office and will reach its nadir when the appalling residence test regulations are debated shortly in both Houses. Why have the Government done this? It was not in the manifestos, nor was it part of the coalition agreement, that our system of civil justice should be dismantled so that instead of remaining a gem in our legal crown, it is something which we may soon become ashamed of.

Many noble Lords have linked the judicial review proposals in this Bill with the earlier legal aid proposals: my noble friend Lord Beecham did so in his excellent speech, as did the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Campbell of Surbiton, the right reverend Prelate and the noble Lord, Lord Low. They all linked judicial proposals with earlier legal aid proposals, as did the Bingham Centre in a very telling paragraph. It said:

“The relationship between the judicial review and legal aid proposals is important because it goes to the right of access to justice, which is a key element of the rule of law and which is acknowledged both at common law, as a constitutional right, and by the European Convention on Human Rights. It is well-recognised that the right of access to justice is capable of being curtailed or infringed not only directly, but also by placing recourse to litigation beyond individuals’ financial means. It is equally axiomatic that whatever other valuable mechanisms may exist for protecting the rights and interests of individuals, it is independent courts of law, in a democracy founded upon the rule of law, that stand as the ultimate guarantors of basic legal rights”.

As for judicial review itself, it is worth quoting the noble and learned Lord, Lord Neuberger, President of the Supreme Court. In his 2013 Justice annual lecture, he said on that occasion:

“The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive—central government, local government, or other public bodies”.

He went on:

“While the Government is entitled to look at the way that”, judicial review,

“is operating and to propose improvements, we must look at any proposed changes with particular care, because of the importance of maintaining JR, and also bearing in mind that the proposed changes come from the very body which is at the receiving end of JR”.

Frankly, there is no serious commentator who supports the Government’s proposals for judicial review. Judicial review is a part of our law well worth defending and it falls on this House to do so.

Photo of Baroness Stern Baroness Stern Crossbench 8:22 pm, 30th June 2014

My Lords, I shall concentrate my remarks on the proposal for the establishment of secure colleges. Before that, I turn briefly to the excellent comments made by the noble and learned Lord, Lord Lloyd of Berwick, who deserves huge admiration—he certainly gets that from me—for his determined pursuit of the issue of life-sentence prisoners and the overuse of that sentence. He suggested that I might have some figures about the use of life sentences in England and Wales, compared with other European countries. I would not wish to let him down, so here are the figures. Per 100,000 of the general population in 2012, the Netherlands had 0.18 life-sentence prisoners, France had 0.77, Sweden had 1.63 and Germany had 3.05. England and Wales had 13.57 without indeterminate sentences; with indeterminate sentences, they had 24.31. As I recollect, the noble and learned Lord and I have said in past debates that there is a peculiar addiction to indeterminate sentencing in England and Wales, and that seems to be continuing.

I now move on to secure colleges. I begin by putting this proposal in the context of youth justice policy. For many years, policy on children and young people in trouble for whom loss of liberty has been deemed to be appropriate has been marked by a range of experiments. These experiments, introduced by enthusiastic government Ministers of all parties, have an aura of “Now at last we’ve found the answer”. The treatment of adults in prison has barely changed in essence for a century, but the treatment of young people changes according to enthusiasms that can be very seductive at the time.

It may be that this happens because there is a strong feeling, which I share, that the number of young people involved in delinquency is so small, and the benefits of turning them from a life of crime so great, that an answer is well worth finding. It is thought that there must be something new that would work. A century ago, a small village in Kent called Borstal became widely known because reformers had the idea of putting young people in trouble with the law into an institution modelled in every way on a public school. The wings were called houses, the assistant governors were called housemasters and there was even a matron. The regime was intended to be kindly and reformative, with teachers, a lot of sport and good relationships between staff and prisoners. It was a seductive idea, which sounded as though it should have been successful. It was not successful, and borstals are no more.

Some noble Lords will remember the short, sharp shock, a detention centre regime announced in 1979 and designed to provide a firm, disciplined, semi-military regime. It was felt that it was a good way of helping an errant teenager turn his life around. It was seductive idea that sounded as though it might work, but the short, sharp shock detention centres faded away, and they are now a small note in history.

The Minister is now trying to seduce us with the idea of secure college for 12 to 17 year-olds, starting with a 320-bed establishment in Leicestershire where, according to Clause 29, the governor will be called the principal and the deputy governor will be called the deputy principal. This establishment will be like a school and will be staffed with by people with the values of education rather than the values of incarceration. Education is very important and a basic right. Young people should have it whether they are imprisoned or not. The noble Lord, Lord Carlile, is right that it is a very good thing if a young person in prison has certificates in maths around his walls. It is a pity that he will never be able to be a maths teacher because of his convictions and his record, but education is undoubtedly hugely beneficial.

Will the secure college produce the results dreamed of? I suggest to your Lordships that it would be wise not to be too easily seduced. We heard the Minister in his fine attempt to persuade the House of the merits of the Bill. I admire his skill in this respect, but he must have suspended disbelief when he had to argue that each custodial place for a young offender costs £100,000 a year, 70% of them go on to reoffend within 12 months and, therefore, we shall set up a secure college. That is a non sequitur. There is no logic whatever in proceeding from saying, “We spend a lot; when they come out they are convicted of another offence; the answer is to spend £85 million on an establishment in Leicestershire which will, in theory, have an educational ethos”.

I should add that the Minister did not say in this House, as the Lord Chancellor said in another place, that the cost per head per year will be £60,000 and that, according to the impact assessment, the aim is to,

“reduce the overall cost of youth custody, focusing in particular on driving down the cost of the most expensive provision”.

I am very grateful to the noble Lord, Lord Ponsonby, for the research he presented to us, making it clear that this proposal has no logic in terms of custodial places where they are needed and in what numbers—no logic at all.

Although we spend £100,000 a year, the reason why seven out of 10 of those on whom the money is spent are reconvicted is that the money is not spent well enough to affect the deep-seated damage that most of these children and young people have suffered in their young lives. The highly respected deputy children’s commissioner, Sue Berelowitz, told the Public Bill Committee on 11 March that in all her many visits to young people in custody, she had,

“never yet met a young person … who did not come from a very troubled environment, who did not need a lot of intense support and who did not need help in forming relationships”.—[ Official Report , Commons, Criminal Justice and Courts Bill Committee, 11/3/14; col. 6.]

She goes on to describe the best environment for such young people: a small environment where good relationships can be made between young people and staff. The noble Baroness, Lady Linklater, described exactly the sort of environment that is needed by describing to us her marvellous school where the children have to learn that they are valuable and worth something. I hope I have quoted her accurately.

This proposal takes us backwards. Thanks to the excellent work of the Youth Justice Board in recent years—I, too, warmly welcome the appointment of the noble Lord, Lord McNally, and expect great things from him—the institutions have become somewhat more child-centred and based on good relationships. To be particularly applauded is the reduction in the numbers in custody.

Before I end, there is one more matter I must raise. In this debate, we must get on the record the names of Adam Rickwood and Gareth Myatt. At this point I must pay tribute to the noble Lord, Lord Carlile, whose work to draw attention to the ill treatment of children and young people in custody has been untiring and hugely effective. Few people may now remember Adam Rickwood, except perhaps a few lawyers, judges, experts in the care of children and, I hope, some Members of your Lordships’ House. He was 14 when he died, having, as a judge said,

“the mournful distinction of being the youngest person to die”, in custody in the UK. He died after he had been restrained by four prison staff because he refused to go to his room and had had administered a blow to his nose—a technique in use at the time to regain control by inducing pain. He hanged himself with his shoelaces from a curtain rail. The outcome of Adam’s death was the revelation that force to restrain children held in secure training centres, with the addition of inflicting pain, was being used to get young people to obey orders contrary to the secure training centre rules. Eventually the courts ruled that using force to restrain young people to preserve good order and discipline was in breach of the European Convention on Human Rights.

Let me remind the House also of Gareth Myatt, a 15 year-old boy sent to custody in 2004 for the first time. He was small for his age—four feet and 10 inches tall, weighing six and a half stone. He was restrained because of a dispute over the cleaning of a toaster.

Three staff restrained him using force; he said he could not breathe. He became unconscious and died of asphyxia. That technique used by the staff was never used again. Following the deaths of these two children, it was some small consolation to their families that lawyers went to court and won their cases, and the methods of restraint were changed. It helps to think, after such an injustice, that at least this will not happen to someone else’s child.

I hope that the Minister has heard the contributions to this debate, about the use of force on children in detention and the need for stringent restrictions on its use. I look forward to making the Bill better in Committee.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat 8:35 pm, 30th June 2014

My Lords, that was a powerful and salutary speech to have to follow.

At the Second Reading of the Serious Crime Bill, I confess that I was at a loss as to how to speak without asking apparently innocent questions as a painful way of masking criticism. That Bill is causing me relatively little anxiety. Today, winding from the Liberal Democrat Benches, I am at a loss as to how to cover even a small portion of the questions and to do justice to the large number of briefings we have all received which display considerable anxiety. Many of their points have been raised today. It is clear to me that your Lordships will do them justice during the passage of the Bill.

Like others, many of my concerns are about the risk of losing focus on rehabilitation, and of reversing progress that has been made in that area. There is also the issue of resources; that, of course, is not a novel point. There is also the evident unwillingness manifest in the Bill to trust the judiciary. Reducing judicial discretion puzzles me. If we want to make the punishment fit the crime, who is better to do so than the person who has heard all the details? I am also concerned about how much of the Bill is there to send messages. We are all aware that this becomes more strident as one gets closer to an election. I hope and believe that this House will consider that the most important thing is producing legislation where legislation is needed—legislation which works.

The House is not short of experts on judicial review and its operation, including the Minister. It is common ground that there has been a proliferation of applications for judicial review; I was interested to see that the number has remained quite steady when immigration judicial reviews are disregarded. If that proliferation is a problem, then it seems to me that the analysis of the problem should start not with the procedures but with why proceedings are thought necessary. I certainly do not want to challenge the tremendously valuable tutorials to which we have been treated this afternoon, but one of the purposes of judicial review is often to achieve transparency and clarity in executive decision-making, as well as establishing whether there has been an error by the Government or the body in question.

I was in a debate last week on financial support for asylum seekers, a matter on which the court recently found the Home Secretary’s rationale for decision-making was inadequate. I said, and repeat, that I am sorry that the announcement of the Home Secretary’s review following that decision will be made when Parliament is not sitting. There might be less call for judicial review if there was less call for the Government to think again or to express their thinking clearly.

Part 4 of the Bill will be dissected and analysed and will, I am sure, have many other quite rigorous things done to it—but not just by the lawyers. These are citizens’ issues, none more so than the clauses on interveners. The NGOs have an important role and we will—or, I would like to say, we would—lose the benefit of their intervention if the clause were to remain in the form in which we have it now. I look forward to the modifications that the Minister trailed at the start of this afternoon’s debate.

There has been reference, too, to the Lord Chancellor’s powers. I can see that there may be a need to allow for tweaking if practice shows that something is not quite workable, but whether a matter is, for instance, of general public importance seems to me to come close to being a political judgment.

With regard to care workers, the clauses on which were covered my noble friend Lady Barker, I am generally sceptical of the creation of new offences when there are others that would cover the matter, but clearly this has been the subject of very considerable and careful attention. I congratulate my colleagues who ensured that the Bill deals with abuse or “wilful”—which I take to include reckless on the basis of discussions on another Bill—neglect by care workers, and I would put “care” in quotation marks in this context. We are all aware of the scandals that have come to light, though not before much suffering on the part of those who are dependent on others for their care. I am not wholly clear whether issues of whistleblowing, inspection powers and management are all adequately dealt with elsewhere. However reprehensible the actions of an individual worker, it is unlikely that there is not a management issue as well.

Like other noble Lords, I was intrigued by the provisions on “fundamental dishonesty”. I hoped that the Minister might have given us a demonstration of FE Smith’s cross-examination of the claimant, who was asked, “How far can you raise your arm?”, and then, “How far could you raise it before the accident?”—and the witness showed the court. Like the noble Lord, Lord Hunt, I am troubled about the standard of proof and whether the court can still make an award, albeit a reduced one. How does this fit with the context of contributory negligence and of utmost good faith in insurance matters? Indeed, what are the views of the insurers? Not everything is black and white, which of course is why leaving a lot to the judiciary has a lot to commend it because they see all the shades of grey.

Judicial discretion, I would have thought, should be at the heart of dealing with knife crime. The opposition of my party to the knife crime provision has been made very clear for this reason and for the following reasons: whether the threat of imprisonment is effective—a matter that has also been the subject of debate—especially when a knife is carried for protection; the likelihood of knives being passed on to young people, sweeping them into the centre of gang violence; the use of alternative weapons; the impact on stop and searches and the choice of whom to stop and search; and the sheer cost.

As regards secure colleges and education, the demarcation point for the proposed mandatory sentence is the age of 16. Teenage boys up to the age of 18—I should say children because my noble friend Lady Linklater always reminds us that they are children—will, or again would, be affected, and this is the cohort most affected by the new secure colleges. I share the Government’s aim—of course, who could not?—of putting education at the heart of youth custody and, or maybe but, I share the huge concern of so many who work in the field that large institutions whose students, residents, inmates, or whatever we are going to call them, will mostly be 15 to 17 year-old males with all the safeguarding and other risks that this raises.

We have had detailed and to me very persuasive critiques, many of which point us to the risks to rehabilitation of the young people involved. My noble friend Lady Brinton, who wanted to be here this evening but was unable to, has reminded me that learning in offender institutions tends to focus on basic skills—although we are all well aware of literacy and numeracy issues—without any vocational context. Because of their frequent moves, young offenders do not finish courses and the new institution does not receive a proper assessment of where they are on their course. Some seem to do the same course over and over again.

Improving vocational skills levels is a key marker to reducing reoffending. One secure college will not change the culture of learning, or not learning, in custody when children are coming and going at different stages and often far from home. The Prison Minister’s view was that,

“as with free schools it will be for education providers to determine how best the educational engagement and attainment of young people in a secure college can be raised”.—[ Official Report , Commons, Criminal Justice and Courts Bill Committee, 20/3/14; col. 291.]

That does not fill me with confidence that the complexities have been addressed.

Then, of course, in the past few days we have heard that lights will be turned out at 10.30 pm, which does not seem to be a sophisticated, delicate, case-by-case solution. I am surprised that the noble Baroness, Lady Stern, resisted mentioning that in her explanation of how we came to have borstals based on public schools.

Finally, I was glad to hear raised by two speakers the needs and interests of children whose parent is in prison. No doubt, some of them will also be clients of the youth offender system.

Inevitably—or at least it is inevitable to me, at any rate—a Second Reading speech wants to look at what might be changed. In my case, I am afraid that it means that I present criticisms in a rather concentrated form. Other provisions of the Bill will dilute the criticisms and, no doubt, the explanations in discussions to come will dilute them further. But what bears repeating is that what is best for society’s victims and offenders is to stop crimes happening in the first place—and the best way in which to reduce crime levels is rehabilitation.

Photo of Lord Hart of Chilton Lord Hart of Chilton Labour 8:47 pm, 30th June 2014

My Lords, for some inexplicable reason my name was omitted from the list of speakers for this afternoon. However, instead of commencing judicial proceedings for a review against the list-maker, I have accepted an invitation to speak in the gap, against an assurance that the Government Front Bench will not harass me if I stray slightly over four minutes.

I must disclose three interests. First, before I became a special adviser to two Labour Lord Chancellors, I was a solicitor in practice, specialising in planning and property law. Accordingly, I carried out a very large number of judicial reviews on behalf of both claimants and interveners. Secondly, I have personally been involved in judicial review proceedings in local planning matters in Suffolk, the first of which we won and in the second of which nine grounds have been found to be arguable and the case will be heard next month. I do not expect the Minister to wish me well, but I thought that I had better disclose that fact. Thirdly, until lately I was a member of the Select Committee on the Constitution.

Each year the current Lord Chancellor comes before the Select Committee on the Constitution for a discussion of current events. On 26 March, that was Mr Grayling, and one of the topics that we discussed was judicial review. The first question he was asked was: what was the problem that Part 4 of this Bill was designed to solve? He reprised his Daily Mail online article, talking about hundreds of cases becoming thousands and very naughty left-wing campaigners seizing control of the system for their own benefit. We asked him to reveal the hard data to support his allegations and he could not do so, but he repeated the number of anecdotal examples that he had trotted out in the Daily Mail, with one or two additions. However, the data does exist, and it shows that the very high rise in numbers was down to asylum and immigration cases. The increase in those cases dwarfed the number of civil cases, which showed only a small percentage increase. As to the serial misuse of judicial review, personally I have never observed such a thing. I was interested to see that the senior judiciary said the same thing in their consultation response.

The permission stage in judicial review is an essential step in the process, whose object, according to the White Book, is to filter out cases that are “hopeless, frivolous or vexatious”. The small increase in the number of civil cases to which I referred may well be explained by the proper operation of the filtering process. However, even if one case goes through on an arguable basis, the substantial hearing often puts that matter right. In my experience, practitioners are well aware that hopeless cases without merit will be stopped at the permission stage, and it would of course be foolish to advise clients to incur wasted costs embarking upon misconceived litigation. Mr Grayling was asked whether he had any estimate of the reduction in the number of judicial review applications when his reforms are—if they are—brought about. He had none. Accordingly, I have concluded—as have many others, including the Joint Committee on Human Rights—that the case for these reforms has not been made.

My second point concerns Clause 64 of the Bill—the “highly likely” test. In judicial review, the fundamental role of the court is to perform a supervisory, not an appellate, jurisdiction. Until now the courts have resisted substituting their own view of the merits of the decision-maker charged by law to make the decision. The court is concerned only to see whether the decision-maker has contravened the law by acting in excess of the powers confirmed upon them. The new concept of “highly likely” is novel and may well fundamentally alter the position. It seems to me that this new concept inevitably will involve judges departing from their traditional role; they will now have to speculate on what decision would have been made absent the defect complained of. Furthermore, the “highly likely” test is to be examined at the preliminary permission stage, which is usually a paper-only exercise, done quickly and without lawyers present. As we have heard this afternoon, the judiciary fear that the new test will lead to a lengthy dress rehearsal hearing, with the service of evidence and oral argument by lawyers. Time taken and costs incurred will inevitably increase. Accordingly, this new provision, far from improving the law, makes matters far worse and seems to me to be designed to obstruct the pursuit of judicial review. It should be completely rejected.

The third point concerns changes to the rules on costs. Because of time I do not intend to say anything about that, except that there will be many amendments and I will support them. Matters should be left to the court, which is the current position, where the judges have discretion as to the nature, extent and cost of any intervention.

I conclude by opposing these proposals. Like the noble and learned Lord, Lord Woolf, I would like Part 4 to be taken away completely. The proposals are based on inadequate evidence; they undermine citizens’ rights to fight the abuse and misuse of power; and it is quite wrong to immunise the Government and other public authorities from effective legal challenge. Judicial review is often a key source of guidance for improving policy development and decision-making in the public service. These proposals do not bring about any improvement and they certainly do not serve the public interest. It is quite the opposite: they undermine it.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Labour 8:54 pm, 30th June 2014

My Lords, on looking at the Bill for the first time, I think that many Members of your Lordships’ House will have been struck by the wide variety of issues it seeks to cover, not all of which seem to hang together very well. As my noble friend Lord Bach said, it is a bit of a Christmas tree Bill, on which many baubles have been hung, all of different shapes and sizes—and more and more keep getting hung on it. Generally, the Bill appears to the Opposition to be a rushed piece of legislation, and rushed legislation usually means bad legislation. It will require considerable improvement in your Lordships’ House.

I am in complete agreement with the contributions made by a number of noble Lords in today’s debate, including particularly those of my noble friends Lord Beecham, Lady Thornton and Lord Ponsonby and others. There are elements of the Bill we support, parts of it we think need improvement and parts of it we oppose. We support attempts properly to punish offenders. We also support keeping the public safe from the most serious and violent offenders and the provision of open and transparent justice. However, we do not support the watering down of the important constitutional tool of judicial review or the Government’s plans for a secure college.

The first part of the Bill concerning criminal justice matters has provisions we are content to support to keep the public safe. The scheme for extended determinate sentences for additional terrorist offences is such a provision. However, we have concerns about these additions and the changes to the release arrangements for people convicted of serious sexual and violent offences that are highlighted in the Government’s own impact assessment, which states that the sentencing changes will require 1,050 additional prison places, and will increase the workload of the Parole Board with an additional 1,100 hearings per year. Our worry is that the Government are not putting the measures in place to deliver the changes they want to see. These matters will require debate and probing during the Committee stage of the Bill to satisfy your Lordships’ House that the Government have their sums and thinking right.

The Joint Committee on Human Rights made some key observations when looking at the provisions regarding the release and recall of prisoners in Clauses 6 to 13. The committee was right to be unconvinced that the introduction of powers by the negative resolution procedure to enable offenders to be electronically tracked was adequate, and to recommend that the Bill should be amended to make the code subject to some form of parliamentary procedure to ensure that Parliament has the opportunity to scrutinise the adequacy of the relevant safeguards.

Clause 14 regarding the mandatory drug testing of prisoners and the creation of a power for the Secretary of State to specify in secondary legislation drugs that are not controlled under the Misuse of Drugs Act 1971, for which prisoners can be tested, is a sensible move and should help to deal with drug misuse in prisons.

Clauses 15 and 16 make changes in respect of the use of cautions and stop their use for all indictable-only offences and certain specified either-way offences. Will the noble Lord, Lord Faulks, tell the House in his response why the Government think that the negative resolution procedure is acceptable in respect of the specification of the either-way offences, as I am more of the view that this should be done by the affirmative resolution procedure to give Parliament the opportunity to scrutinise further what is being proposed?

I think that we have all been horrified at reports of the ill treatment, abuse and wilful neglect of vulnerable people who have been entrusted to the care of others. With the provisions listed in Clauses 17 to 22, the Government seek to close the loophole that Professor Don Berwick identified in his review of the events that took place at the Mid Staffordshire NHS Foundation Trust, but they were added late during the passage of the Bill through the Commons and will require considerable probing and testing. I find it odd that these proposals do not extend to volunteers. This, I believe, is a serious omission. You have only to look at the activities and offences committed by Jimmy Savile, while he was acting as a volunteer at a number of NHS and other establishments, to be concerned that these proposals are in themselves inadequate and do not go far enough. I hope that your Lordships will amend the Bill accordingly so that what is agreed will give the maximum protection to vulnerable people in the care of others, be they employees or volunteers.

The murder of a police or prison officer is one of the gravest offences that can be committed and the whole-life tariff in Clause 24 sends a powerful message of how much we value these public servants and place the highest value on their safety. The noble Lord, Lord Blair, made a powerful point when he talked about the role of the courts in handing down sentences for the murder of police or prison officers, and said that Harry Roberts is serving the 48th year of his prison term for murdering police officers.

I am sure that we will return to the issue of possessing a bladed weapon in public or on school premises. We supported the amendment in the Commons, with Back-Bench Conservative MPs, and we will support it in this House as well. It sends out a strong signal that carrying a bladed weapon is serious and has serious consequences if you are caught for a second offence. The noble Lord, Lord Marks of Henley-on-Thames, was right when he expressed concern about the reduction of judicial discretion, but I would point out that the proposals we supported for possessing bladed weapons in public places or school premises do have judicial discretion—unlike the proposals that the Liberal Democrats supported in the LASPO Act for the carrying of a knife, which are mandatory.

The proposals for dealing with offences committed by disqualified drivers are well intentioned, but their adoption, as they stand, would be quite confusing. The law at present is inadequate and needs improving. Perhaps the noble Lord, Lord Faulks, can explain how these proposals will fit in with a review of the road traffic sentencing framework that the Government are committed to carrying out in the next few months, because if there is a review, there could possibly be changes. Will those changes require primary or secondary legislation?

The clause in the Bill concerning malicious communications has the support of the Opposition. As technology becomes ever more sophisticated and can be used to threaten people with offensive and distressing material, we agree that the courts should have tough powers at their disposal to deal with offenders. My noble friend Lady Thornton made a powerful argument about what needs to happen in the case of extreme pornography and the proposals from the Government need amendment and revision. I hope that the meeting between my noble friend and the Minister will go some way in that respect.

My noble friends Lord Beecham and Lord Ponsonby, and the noble Lord, Lord Ramsbotham, highlighted our concerns about the proposals on secure colleges. These proposals in particular need proper pre-legislative scrutiny. The Minister is right to say that we need to be better at rehabilitating young people, but I am not convinced by what I have heard from him so far today. We on these Benches are not convinced that housing 300 children together on one site—potentially miles away from their family, making visiting difficult and expensive—is a good way to provide a proper education and reduce their propensity to reoffend.

We share the concerns expressed by a number of organisations, including the Howard League for Penal Reform and others. The Government will have to provide much more information and set out their proposals more clearly. Issues such as the use of restraint, concerns about the effects on younger children and the problems that girls will confront in this establishment in particular will need thorough examination. I agreed with all the comments of the noble Baroness, Lady Linklater of Butterstone, about secure colleges, and those of the noble Lord, Lord Carlile.

Moving on, while the section of the Bill on courts and tribunals can be seen as administrative and time-saving measures, we on these Benches have some concerns about the single-magistrate hearings and weakening the principle of justice being seen to be done, and how the system will operate. I look forward to discussing in Committee these further proposals and the ideas from the Magistrates Association that my noble friend Lord Ponsonby referred to. No matter how well intentioned, we have to ensure that we get these right. I am also worried about the proposal for trying to get money out of penniless defendants. As my noble friend Lord Ponsonby said, I have sat as a magistrate for many years. I used to sit on the Coventry Bench when I lived in the city and I can tell your Lordships that imposing fines and court costs that individuals have no hope of ever paying off is a complete waste of time and could actually be damaging.

I am fully in support of people convicted of offences having to pay compensation to victims, fines and court costs, but it must be left to the discretion of the courts to decide what is reasonable and what is not. We have no objection in principle to leapfrog appeals, though it does always follow that every issue of national importance will go straight to the Supreme Court and it may be that in some cases, that will not be the best thing to do. I always thought that the case brought by Lewisham Council and others—and I declare that I am a member of Lewisham Council—about the decision of the NHS to close the A&E at Lewisham Hospital, would end up in the Supreme Court. In the end, having lost in the High Court and the Court of Appeal, the Government decided to draw a line there and instead changed the law to stop other organisations doing what Lewisham Council did.

We generally welcome the proposals to update the jury room process. However, we want to press the Government on what support they intend to give juries, so they can clearly understand their role and what they can and cannot do. Social media have a vast penetration and that will only increase. People can be active on a number of platforms numerous times a day. They may have no idea that they are doing something wrong and that could be a very serious offence.

I have been on a jury only once, and that was about 30 years ago. I do not recall being told very much at all, but there were no mobile phones, e-mail or internet. The noble Lord, Lord Faulks, and many other noble Lords will be much more aware than I am of what is said to juries today. I would hope at a minimum that they can be given clear “dos and don’ts” in writing and a proper briefing from a court official before they enter the courtroom—followed up, if necessary, by the judge at the start of the trial telling them what and what is not appropriate. We have no objection to raising the age for jury service to 75, and in fact this could be a very positive move. The only thing that I would say is that some account may need to be taken of health issues.

The section that deals with judicial review contains some of the most controversial parts of the Bill and we have serious concerns about these proposals. My noble friend Lord Beecham, the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Woolf, all skilfully highlighted the concerns of many noble Lords in this House. For the Justice Secretary to describe judicial review as a promotional tool for countless left-wing campaigns is a disgrace. The noble Lord, Lord Pannick, repeated the full quote. I accept fully that for the Government, local authorities or other public bodies it can be irritating to have their decision challenged—but without such provisions, bad decisions can go unchallenged, and that is bad for all of us, for democracy and for civil society.

The noble Baroness, Lady Campbell of Surbiton, made key points when she talked about the use of judicial review, as did my noble friend Lord Bach. It is about holding people to account, and without a written constitution, judicial review is the one important tool for holding the Executive to account. Over the past four years, we have seen cuts to legal aid, limitations on no-win no-fee cases, and threats to the Human Rights Act and the European Convention. The proposals here are another attack on the rights of the citizen.

The noble Lords, Lord Faulks and Lord Hunt of Wirral, both referred to the activities of some claims management companies. I have spoken many times in this House about the industry and the problems it can sometimes cause. I am happy to pay tribute also to Kevin Rousell and his claims management team, which does a fantastic job. I should be delighted to put my name to some more amendments that can give him and his team even more power to deal with the problems of this industry.

As I said at the outset, this is a rushed and bad Bill, and we on these Benches will seek to work with others across the House to try to persuade and, if necessary, defeat the Government in the Division Lobbies if they will not listen to reasonable argument. I will draw my remarks to a close and I am sure that we will return to these matters in Committee.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice 9:07 pm, 30th June 2014

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.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Labour

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?

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Justice)

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

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Justice)

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.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Lord Woolf Lord Woolf Crossbench

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.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Lord Woolf Lord Woolf Crossbench

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.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

I am grateful for that advice and, if I may, will perhaps respond no further at this stage.

The information about financial resources is also a matter that will be probed in some detail, although time does not permit me to go into a detailed response on that now. I have heard the arguments that have been raised, and there will no doubt be profitable scrutiny of those provisions.

Judicial review is important but it is not a vase that would be caused to crack by simply touching it. We need to look carefully at the remedy but, none the less, it is one where change should be made.

I said at the outset that I could not cover everything. I have covered, I hope, some of the points that have been made and I look forward to dealing with them all in Committee—if, of course, your Lordships are prepared to give this matter a Second Reading. I conclude my speech by asking the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.

House adjourned at 9.32 pm.