(10 years, 9 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Chris Grayling)
I beg to move, That the Bill be now read a Second time.
The Criminal Justice and Courts Bill represents the vital next stage in this Government’s mission to deliver a more credible justice system that keeps the public safe and secure, reduces reoffending and puts victims first. Under the previous Government, we had a plethora of criminal justice Bills as they jumped from one bandwagon to the next, but that was all to distract us from the real truth that Labour is the party of soft justice and unsafe streets. Too often, those who broke the law got away with a slap on the wrist, did not receive the punishment the public would expect, were released from prison even though they were still dangerous and were allowed to continue the cycle of more reoffending and more victims. This Government, on the other hand, have a consistent and clear approach: the justice system must be on the side of those who work hard and play by the rules, keeping our communities safe and secure.
We are already delivering on that promise. We have ensured that those convicted of a second serious sexual or violent offence face an automatic life sentence, and we are committed to having more prison places for adult males by the end of this Parliament than we inherited in 2010. We have toughened up community sentences, so they are no longer a soft option. I am pleased to say that proposals brought before this House through the Crime and Courts Act 2013 are now law. All community sentences now contain an element of punishment. It is extraordinary that that was not the case already, but it is now.
We have changed the law to give greater protection to householders in defending themselves against burglars—we have dealt with that issue once and for all. We have transformed the regime in our prisons so that they are now places of hard work and discipline, where prisoners are expected to engage with their own rehabilitation and work hard to earn their privileges. We are implementing fundamental reforms to transform rehabilitation by bringing together the best of the public, private and voluntary sectors and paying providers in full only if they reduce reoffending. The Offender Rehabilitation Bill, in its final stages before this House, will finally address the unacceptable situation whereby 50,000 short-sentence prisoners are released each year with no support, free to return to their criminal ways.
We have already achieved a lot, but there is more we can and must do. Too often, the system is inconsistent in the way it deals with offenders, especially those offenders who repeatedly flout the law. It cannot be right that muggers and rapists get off with a caution, or that those who abscond on licence can do so safe in the knowledge that, if caught, they will serve no more than the remainder of their sentence. There are too many offenders who commit serious crimes but are released automatically midway through their prison sentence. We will take action in this Bill to address those issues.
Perhaps most striking of all is the situation with youth offenders. Nearly three quarters of young people who leave custody reoffend within a year. The system simply is not working. We need to equip young people with the skills and self-discipline they need to turn their backs on crime, and that change needs to happen now, starting with this Bill.
My reforms do not stop there. I do not believe it is right that at a time when public finances are tight, the taxpayer continues to shoulder such a heavy burden for the cost of the criminal courts. In my view, the burden should be shared with those who are responsible for giving rise to the costs in the first place—the criminals themselves. Provisions in this Bill will make that a reality.
This Bill also contains some important measures as part of our long-term economic plan. Reforms to judicial review in this Bill, alongside those implemented in the first stage of the reforms last year, will tackle lengthy delays in the system, which put an undue burden on the taxpayer, act as a brake on dynamism and hold back economic growth. The reforms, which have been extensively consulted on, will rebalance the financial elements in judicial review cases so that anyone making a claim shares a fair level of financial risk. That will encourage those who bring claims to consider the merits of their case before doing so, and ensure that public resources are focused only on well-founded claims. I shall return to those provisions after I have dealt with the criminal justice provisions in more detail.
Part 1 of the Bill introduces a firm but fair package of sentencing and criminal law reform. I am determined that those who commit crime will be properly punished so that the public can both have more confidence in the justice system and feel safer in their homes and communities. I strongly believe that serious and repeat offenders should face the full force of the law for their crimes. It is not right that such offenders can be let off with a simple caution time and again.
I want to ensure that victims receive the justice they deserve, and that criminals know that they cannot lightly get away with what they do. That is why this Government are clamping down on the use of simple cautions. Offenders will no longer receive a caution for the most serious offences, such as rape and robbery. For other offences, the Bill will prevent the repeated use of cautions for the same or similar offences committed within a two-year period.
One of the aspects of our justice system that causes me most concern is the concept of automatic early release. As I have said before, I cannot abide a situation in which serious sex offenders and terrorists may serve only half their sentence in prison and—regardless of whether they have been rehabilitated and regardless of the risk they may continue to present to the public—are then simply released automatically midway through their sentence.
I do not think that early automatic release should be a right. That is why I am making a start on tackling it in the Bill, which introduces measures to end automatic early release for anyone given an extended determinate sentence, or sentenced to custody for the rape of a child or for serious terrorism offences. No such offenders will be released before the end of their custodial term, unless the Parole Board judges that they no longer pose a risk of serious harm to the public. I would like to do away with automatic early release in one step. In times of tight resource, I cannot do it in one go, but I can make a start, and that is what the Bill does.
Terrorism poses a serious threat to our society. Terrorists who commit or try to commit horrific crimes in this country must face the very toughest punishments. The Bill will close a loophole that desperately needs to be closed. It will increase to life the maximum penalties for a further range of terrorism offences, and it will extend the enhanced dangerous offender regime so that courts can impose the most serious sentences necessary for such crimes. I want to create a situation in which when courts view somebody as a junior member of a terrorist plot—until now, that might not necessarily carry a life sentence—they can decide to impose a life sentence because they view them as a serious threat to the public, and the Bill will enable the courts to do that.
Once prisoners are released, it is vital that they comply with the conditions imposed on them. If an offender is repeatedly or wilfully non-compliant with the terms of their licence, they should not be continually recalled to custody for short periods and re-released. The measures in the Bill will introduce a statutory test for the release of offenders who have been recalled to prison for breaching their licence conditions that takes into account not just public protection, but the likelihood of the offender committing further breaches, including reoffending.
I want to ensure that we increasingly use cutting-edge technology to monitor better the whereabouts of offenders while they are under supervision. Innovative GPS tagging technology will allow location monitoring of offenders, as well as the monitoring of compliance with other conditions, such as curfew and exclusion. I want us to be ready to harness the potential of this new technology, as it becomes available, to assist with public protection, reducing reoffending and crime detection.
Dr Julian Huppert (Cambridge) (LD)
Will the Secretary of State say what the cost of that programme will be and how successful prosecutions have been in the courts against people who have broken tags? I understand that there have been a lot of problems with tags not being reliable.
Chris Grayling
My hon. Friend is absolutely right that the existing radio-based tagging technology has been pretty unreliable. I have seen the new generation of emerging technology in action and it provides some good options. It provides the ability to monitor a curfew or to prevent somebody who has been convicted of child sex offences from going near a school. Some offenders can actually benefit from the use of this technology. On one visit, the police showed me that they had excluded somebody from suspicion in the case of a household burglary because it was possible to demonstrate that they had not been in the area at the time.
As I have said clearly, I want to start using this technology for release on temporary licence. We have seen some very difficult cases over the past few months. The vast majority of people who are released on temporary licence commit no crimes and simply want to be reintegrated into society. However, when dangerous offenders come to the end of their sentences and have to be released on temporary licence, this technology has the potential to ensure that we know where they have been and to provide a degree of restraint as we integrate them back into the community.
The cost of the programme will depend on its scale. The technology that we are introducing to take over from the existing systems will save money. It will cost tens of millions of pounds a year less than what we have spent until now. It will be possible to extend the use of the technology to other groups, such as offenders on temporary licence, at a relatively low cost.
I want us to be ready to harness the potential of the new technology. That is why I am seeking to take powers in the Bill to enable mandatory location monitoring of offenders who are released on licence. As the technology becomes available, we will then have the discretion to be able to use it to the best possible effect to protect the public when people are released on temporary licence and, potentially, when people have committed very serious offences.
I am creating a new offence for offenders who go on the run after being recalled to custody, so that those who try to avoid serving the remainder of their sentence do not go unpunished. There will be a new maximum penalty of two years’ imprisonment.
The final provisions in part 1 deliver on a commitment that is important to me and the Prime Minister. The Bill will make it a criminal offence to possess pornography that depicts real or simulated rape. I am sure that both Houses will share my view that such images are wholly unacceptable and that it is right to close this gap in the law.
That brings me to part 2 of the Bill and how we deal with young offenders.
Sir Edward Garnier (Harborough) (Con)
Before my right hon. Friend moves on to part 2, will he provide an estimate of the additional costs to the prison aspect of his departmental budget that will be caused by the welcome changes to the criminal law that he is introducing?
Chris Grayling
The cost will build up over the next five or 10 years because, as my hon. and learned Friend knows, one cannot apply sentencing rules retrospectively. The proposals on automatic release for the most serious offences are containable comfortably within the existing prison budget and within the expected resources of the Department. Only a relatively small number of people commit the most serious and brutal offences, and those are precisely the people whom we do not want to release automatically halfway through their sentences because of the risk that they pose to the public. I am therefore confident not only that this is containable comfortably within the departmental budget, but that it is the right thing to do.
On part 2, I believe that it is right that young people who commit crimes should face appropriate punishments. That is and always should be a matter for the courts. When young people commit serious or persistent offences and there is a need to protect the public, custody is a necessary option. However, we have taken positive steps over the past three years to ensure that we deal better with young offenders who do not pose an immediate risk to society.
On becoming Justice Secretary, I was appalled to discover that so many young offenders who are released from custody go on to reoffend within a year. Currently, the rate stands at 69%. That is an astounding percentage that far exceeds the reoffending rate for adults on leaving custody. It is simply too high. We spend as much as £200,000 a year per place in some institutions, but the reoffending rate is consistently around 70%. That cannot be right, it cannot be sensible and we have to do something about it.
We must do more to help young offenders back on to the straight and narrow and ready for adult life, and high-quality education is a key part of that. Most young people who end up in our youth offender institutions or secure training centres have dropped out of school, have few or no qualifications, and do not have the skill foundations they need to leave and get into work. We must address that and do more to help them back into having real prospects of an apprenticeship or work. Otherwise, the danger of reoffending will be ever great.
At present, young people in young offenders institutions spend on average just 12 hours a week in the classroom, and latest figures suggest that more than half of 15 to 17-year-olds in YOIs have literacy and numeracy levels expected of seven to 11-year-olds. The Bill contains provisions to create what we are dubbing “secure colleges” so that we can trial a new approach to youth custody, with a stronger focus on the education and rehabilitation of young offenders, equipping them with the skills they need to stop reoffending and become law-abiding members of our society.
Karl Turner (Kingston upon Hull East) (Lab)
I am grateful to the Lord Chancellor for giving way and I am interested in where the £85 million for his secure college is coming from, and from which year’s budget?
Chris Grayling
It comes from my Department’s capital budget and it will lead to a reduction in the annual running costs of institutions. We are creating an institution that provides both high-quality education and better value than we get from the current system, which underperforms and is excessively expensive because of the nature of the provision out there. I believe this institution will be a major step forward and deliver high-quality education in a modern environment and campus setting, with the focus on education rather than simply detention. That is a key difference.
Kate Green (Stretford and Urmston) (Lab)
If this model is considered to be as successful as the Lord Chancellor obviously believes it will be, can he say whether it will be extended to young women as well as young men, and whether they will be co-located in the college?
Chris Grayling
On co-location, there are a number of places in our current system where men and women, or indeed different age groups, are located near each other without being mixed together. I expect the secure college to have a range of age groups, but for them to be separated so that 12-year-olds are not mixed with 17-year-olds. Living on the same site, using the same facilities at different times, and maximising the effectiveness of the resource we put into creating those facilities must be a sensible way forward. If the secure college model works, I do not rule out having women’s units on site as well, but that does not mean we mix them. At Peterborough prison, a women’s prison and a male prison adjoin and share many of the same facilities, although the two sides do not mix. It is about making the best use of our resources to deliver the highest quality educational skills outcomes to a group of young people who will not get on in life unless we help them develop those skills. That is the whole purpose of what we are trying to do.
This is a different kind of institution. A few people are saying, “This is just the biggest children’s prison in Europe”, but that is complete nonsense. This is much more akin to a school or college with a fence around it on a site that can deliver quality education and a mix of skills development, in a way that will genuinely help take young people—while we have them under our control—through a period of skill building of the kind they desperately need. That will be a whole lot better than having young offenders institutions with big iron bars and 12 hours in the classroom. This is a new approach that I think can make a real difference.
Keith Vaz (Leicester East) (Lab)
I apologise to the Lord Chancellor for missing the first part of his speech. I welcome his approach and it is important to provide more education within a secure setting. I have raised with him in the past the concerns that I and the Home Affairs Committee have had about the number of young people who acquire the drug habit while in prison or at a young offenders institution. Does he intend to ensure that there will be lessons to get people off drugs when they attend the institutions he has described? That would be a positive step to stop reoffending.
Chris Grayling
As the right hon. Gentleman knows, we already make intense efforts across our detention estate—for young people and others alike—to try to get people off drugs and prevent them from coming into those facilities. He will also know that it is a constant battle because there are people out there making a determined effort to get those drugs in. This is not a problem that simply affects this country; it exists in most other major industrialised nations and elsewhere. We will continue to do everything we can to combat it, and in this institution I want to see treatment available for those who have a problem, but also a real effort to ensure a drug-free environment.
Part 3 introduces a suite of provisions to reduce the burden of court costs on taxpayers by making criminals pay towards the cost of their court cases, streamlining the way magistrates deal with low-level offences and modernising the law on the work of juries. As we work to bring down the costs of the justice system and deliver better value for money, I am clear that it is not fair to continue to ask UK taxpayers to fund a criminal court system, or to ask law-abiding members of the public to pay increased fees in the civil courts, without offenders being expected to make a greater contribution. The provisions will allow us to recover from offenders the cost of criminal courts and make a contribution to the day-to-day running of court services. This is not a novel concept: courts can already order offenders to make payments to victims and victim services, and to pay fines and prosecution costs. There is currently no power, however, to make offenders pay directly towards the cost of the court proceedings that convict them.
Dr Huppert
The Justice Secretary is absolutely right that there are other powers. The latest figure I could find is that £1.3 billion of debt is owed as a result of these orders. What fraction of the charges does he think will actually be paid?
Chris Grayling
The collection rate of fines and other charges levelled in the courts is in excess of 80%. There is a large block of historical debt, much of which is owed by people who, for reasons that include that they have simply died, for accounting reasons have to stay on the books. I accept that that is daft and it is a matter of debate among accounting figures in government. The figure my hon. Friend cites is not a sum of money that could ever realistically be recouped by the taxpayer, but, of the money that is levied in courts every year, we currently collect about 80%. I have no reason to believe that we will not continue to do that, and I have no reason to believe that these reforms will not lead to the collection of the many tens of millions of pounds we seek to collect to make a contribution to the running of the court system.
Kate Green
I thank the right hon. Gentleman for giving way; he is being very generous with his time. When funds are being recovered, will he say in what order they will be disbursed? In particular, will priority be given to payments to the victims compensation fund, ahead of reimbursing court costs?
Chris Grayling
We will not change the order of the collection of fines and victims’ charges. The collection of court costs will come after that. It is worth saying that the repayment of the charge will, as is normally the case in the courts in relation to fines and victim surcharges, be set at a rate that offenders can afford, so there will always be an incentive for them to find a job and to work hard. Offenders will be able to earn their way out of the charge if they do not reoffend. We will make provision for the charge, or any outstanding sums of money, to be written off if the offender does not reoffend. There will, therefore, be an incentive to go back into work, get on with it and make regular payments. Then, when they do not reoffend, an amount of money will be written off. That is a fair and balanced way to ensure that we secure a contribution from those who can afford it—there are people in our courts who will be able to afford this money on the spot—and create a system whereby if people do the right thing, we will do the right thing by them and write off any outstanding money.
I reassure my hon. Friend the Member for Cambridge (Dr Huppert) that we take the enforcement of such payments extremely seriously. We continue to work hard to improve enforcement levels and we will address some of the historical debt by outsourcing the collection of criminal financial impositions in a more effective way. I hope that that will enable us to recover some of that debt. I want to ensure that those who have the means to pay but refuse to do so, do not escape without consequences. The reality is that many people work very hard to avoid paying money to the courts and we need to use every tool at our disposal to ensure that they pay.
We must continue to look at ways to make the court system more efficient and proportionate to crimes committed. Too much of magistrates’ time and court time is currently spent simply going through the motions of hearing a case where the defendant has pleaded guilty by post or has not responded. We currently have the absurd situation of valuable court time being spent on hearings where paperwork is simply read aloud by lawyers. The Bill allows a single magistrate to deal with such cases away from the traditional magistrates courtroom. It will free up valuable court time to focus on cases where they make a real difference to victims and their communities, while preserving a defendant’s right to request a hearing in open court.
Jeremy Corbyn (Islington North) (Lab)
Does the Secretary of State not think it a bit dangerous for such cases to be dealt with by a single magistrate? Would it not make our justice system more secure for three magistrates to sit on the bench, so that they could at least discuss the case and reach a collective decision?
Chris Grayling
We have a high-quality magistracy in this country, and I am confident that, in simple cases—when someone has pleaded guilty to, for example, a motoring offence by post, and the facts are very clear—our magistrates are capable of reaching a decision themselves. I agree with the hon. Gentleman that there are great strengths in a system that provides for a bench of more than one person to deal with a criminal prosecution when someone’s liberty may be at stake, but I am confident that, when it comes to dealing with simple offences and guilty pleas that are submitted by post, our approach is realistic.
Mr Jonathan Djanogly (Huntingdon) (Con)
Is it not the case that, if one magistrate is allocated but the defendant wants there to be three, the defendant can request that?
Chris Grayling
Indeed, but in my experience, most magistrates would regard themselves as perfectly capable of dealing with relatively simple processes of this kind. I think that the provision will free up court time and create a smoother process.
Jeremy Corbyn
At what level would it be decided whether there should be one magistrate or three, and what would be the appeal process in the event of a magistrate’s refusing to call in colleagues if the defendant wanted that to be done?
Chris Grayling
Typically, these will be uncontested cases. A contested case in which the defendant wished to plead not guilty would not be dealt with outside the courtroom. These are simple cases in which there is no doubt about the defendant’s guilt because the defendant has pleaded guilty, and which can be dealt with out of court by magistrates, without the formality of a court hearing.
Robert Neill (Bromley and Chislehurst) (Con)
Does my right hon. Friend not agree that in most instances not only is the case uncontested, but the defendant does not even turn up, and there is then the rigmarole of a prosecutor reading out the facts to an empty courtroom? In those circumstances, it is obviously sensible to adopt the proposed reform.
Chris Grayling
I would say to my hon. Friend, and indeed to the hon. Member for Islington North (Jeremy Corbyn), that if someone wishes to contest a charge, it is probably a good idea for him to turn up in court to do so.
Mr Robert Buckland (South Swindon) (Con)
Will my right hon. Friend ensure that when this streamlined procedure is adopted, pre-hearing consultations take place with defendants about their ability to pay a fine? A proper written means test would enable realistic fines to be imposed, and to be much easier to collect than fines imposed by means of an exercise that would be theoretical without such information.
Chris Grayling
That is a very good point, which we should certainly take on board.
Kate Green
In the context of this part of the Bill, I should place on record my interest as a life member of the Magistrates Association.
When decisions are made outside open court and entirely on paper, with no public pronouncement being made, how can the public be made aware of sentencing practices in relation to the offences that we are discussing?
Chris Grayling
I have made it very clear that we must not lose transparency as a result of our reforms. In today’s world, the local paper reporter obviously will not sit through cases of this kind, because there are not the necessary resources. However, it is vital for the local media, for example, to have access to information about what happens in the courts, and we cannot allow the new process to take place behind closed doors. I am a strong believer in transparency in the courts, and we will provide mechanisms to ensure that the public have access to court decisions. That is only right and proper: we cannot have secret judgments.
Part 3 also deals with the important issue of jury misconduct. Trial by jury is a fundamental feature of our justice system, and juror misconduct can have a devastating effect, causing delays, cost, and damage to public confidence. I am clear about the fact that people should be tried by the courts, not by the internet. When an individual is before the court, the jury must decide on the basis of the evidence presented and principles of justice, not the results of a Google search. The Bill introduces a number of criminal offences in order to tackle such behaviour, based on recommendations by the Law Commission. It also deals with the publication of potentially prejudicial materials during court proceedings, on which the current law is outdated and in need of reform. I think that these provisions represent a careful balance between the right to report and publish freely, and the right to be judged only on the facts before the court, and I thank the Law Commission for its work in this regard.
Sir Edward Garnier
I commend my right hon. Friend on the provisions relating to juries, and on clause 39 in particular, which will raise the upper age limit for jurors to 75. That was a lacuna that needed to be dealt with. May I ask him to go a little further on age limits? Would he consider putting the age limit for judicial retirement back up to 75, because we are losing a great resource at the moment? That would not mean that everyone had to stay on until they were 75, but there are plenty of judges who could do so—[Interruption.] I will speed up my intervention, Mr Deputy Speaker. At this rate, I will be 75 before I get to the end of it. There are plenty of good judges who would like to, and who could, stay on beyond the age of 70, and I hope that my right hon. Friend will consider that point.
Chris Grayling
I hear what my hon. and learned Friend says, but I am not sure that we could afford to raise the retirement age for judges. I do not mean that in a financial sense. Since I took over this position, I have spent quite a lot of time approving the appointment of retired judges to a number of important roles in society, such as chairing commissions and leading reviews. We would lose that expertise if we allowed them to continue as judges until they were 75, and I am not sure that we could afford to do so.
I shall turn now to the final part of my reforms. Judicial review represents a crucial check on public bodies. It rightly allows individuals, businesses and others to ask the courts to consider whether, for example, a Government Department has gone beyond its powers, whether a local authority has followed a lawful process or whether an arm’s-length body has come to a rational decision. However, I am concerned about time and money being wasted in dealing with unmeritorious cases which are often brought simply to generate publicity or to delay implementation of a decision that has been made properly. Moreover, a significant proportion of these weak applications are funded by the taxpayer, through the expense incurred by the defendant public authority, by the court resource entailed, and in some cases by legal aid or by the public authority bearing the claimant’s legal costs.
The first stage of my judicial review reforms sought to tackle unnecessary delays in the system. Provisions in the Bill will build on those—for example, by making it possible for more cases to leapfrog from the court of first instance to the Supreme Court, speeding up a final decision. We will also seek to change the rules on who has to pay the legal bills for cases, so that all parties have an interest in ensuring that unnecessary costs are not racked up.
Provisions in the Bill will result in stopping taxpayers having to subsidise cases unnecessarily by limiting the use of protective costs orders to exceptional cases with a clear public interest, and only when the court grants them permission to proceed. The provisions will also ensure that details of anyone financially backing a judicial review are disclosed to the court, even if they are not a named party, so that costs can be allocated fairly. They will also make third parties who voluntarily join in a JR case as interveners responsible for paying their own way.
Dr Huppert
Perhaps I have misunderstood clause 53, but it seems to suggest that interveners will have to pay not only their own way but the costs of everyone else involved. That seems rather harsh. The courts have said that they welcome interventions that help to clarify the law. Does not the Secretary of State feel that this measure might go a little too far, and make it hard for people to intervene even though it would be constructive for them to do so?
Chris Grayling
My real concern is when pressure groups use individuals as financial human shields in cases that the groups wish to bring. They find someone who has no financial means, and use them to challenge the Government, and whether or not they win, the Government—that is, taxpayers—are guaranteed to have to pay the bill. The taxpayer will have to foot the bill because there is no prospect of recovering the costs from the individual who is fronting the case. That is what I am seeking to change.
Kate Green
I suppose I should declare an interest in this context as well, given that I used to run a pressure group that brought judicial reviews—[Hon. Members: “Ah!”] Against the previous Government, I must say. Those judicial reviews always addressed matters of significant public interest. How does the Justice Secretary intend to deal with complex cases whose costs are likely to be high, but in which it would be helpful to the court to have the matters properly argued, analysed and brought to the court’s attention, as the hon. Member for Cambridge (Dr Huppert) described? Does the Secretary of State have a means of ensuring that his proposal will not shut people out from bringing such complex cases?
Chris Grayling
The hon. Lady certainly did bring cases against the previous Government, but the Secretary of State for Work and Pensions and I discovered to our surprise when we went into that Department in 2010 that the practice of the previous Government was to guarantee to pay the costs of the pressure group from day one. We got a call from one pressure group saying, “We are going to bring a judicial review. Can we assume that the usual arrangements will apply and you will pay the costs?”, to which the answer was, “Well, actually, no.” It was a strange way for the previous Government to do business.
As I said, protective costs orders will still be available for cases of genuine public interest, but my fear is, and my experience has been all too often, that cases are brought for public relations and campaigning reasons in a way that leaves the taxpayer guaranteed to pick up the bill. I do not think that is fair on the taxpayer.
Keith Vaz
The Government have taken away the right of appeal in a number of immigration cases, and the Minister of State, Ministry of Justice, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), who is sitting by the Justice Secretary’s side, was very vocal in the campaign against the abolition of the right of appeal in immigration cases. There has been a huge increase in the number of judicial reviews in immigration cases. Is it fair that we should cut off every single judicial route, enabling people to have nowhere to go if they want to challenge decisions?
Chris Grayling
We assess carefully each immigration case that comes before the Border Agency and there is then the opportunity to challenge in the courts, but just how many times are we going to give people the right to appeal? There have been many cases, and indeed occasions when our judges have said, “This is not good enough”, where the case has simply been brought as a delaying tactic to stop people being asked to leave the UK—that is in nobody’s interest.
Robert Neill
Will my right hon. Friend take on board the fact that, unfortunately, previous interventions have highlighted the error that has crept into many people’s thinking? They believe that rather than being a process of procedural review—an administration of the propriety of decision making—judicial review should be used as a re-run of the merits. That is not what it was ever intended to be.
Chris Grayling
My hon. Friend is absolutely right about that, which is one reason why we have sought to ensure that cases where there is no material likelihood of a different decision having been taken cannot simply be brought on a technicality relating to the process. If a minor error of procedure has been made, the decision should not be able to be delayed for months and months when there is no realistic prospect of a different decision being reached.
The Government have consulted extensively on this package of reform, and we did so with an open mind. Concerns were raised, both practical and principled, about proposals to reform “standing”, which determines who can bring a judicial review, and I have decided not to pursue those. Judicial review must continue in its role as a check on the powers that be. It is an important tool for our society which allows people to challenge genuinely wrong decisions by public authorities. These reforms do not change that, and I would not want them to do so. They make it more difficult for pressure groups simply to use judicial review as a campaigning tool and for those with a financial vested interest—for example, one developer judicially reviewing another—to delay a process of investment, to derail a competitor or to derail a major project that is strategically and economically in the interests of this country.
The Bill contains a vital set of proposals as we work to deliver a justice system in which people can have confidence—a justice system that deals robustly with those who repeatedly commit crimes. The Bill toughens sentencing for some of the most serious crimes and ensures that serious offenders will be released only if they can show that they are no longer a threat to society. The Bill requires offenders to contribute to the cost of the criminal courts, and allows us to test a new approach to youth custody and to reduce the delays and expense involved in unmeritorious judicial reviews. The Bill draws a line under Labour’s soft justice culture, provides hard-working families with greater safety and security in their communities, and removes barriers to economic growth. I commend it to the House.
Sadiq Khan (Tooting) (Lab)
Let us be frank: this Bill has come from nowhere. If the Government really wanted a new justice Bill, the obvious place to trail it would be in the imminent Queen’s Speech, not today with a Second Reading towards the dreg ends of this parliamentary Session. So what is going on? With 15 months to go until the general election, experienced heads around Parliament say that it has never been so quiet.
We know the old saying that the devil makes work for idle hands. Recent weeks have certainly shown that to be the case, with the Government suffering a number of troubling episodes with their own Back Benchers, perhaps in no small part because the thin legislative programme leaves their own sides twiddling their thumbs. Nature abhors a vacuum; so too does Parliament. Disquiet, plotting and rebellions tie the Government in knots, leading to the absurd situation in which the Opposition had to step in and vote down a Tory Back-Bench amendment on the Government’s own Immigration Bill—an amendment that broke the rule of law—while the Conservative majority in the coalition sat on their hands. Has anyone heard of anything so pathetic? We have a governing party that could not even vote in favour of its own Bill, and a Lord Chancellor who swears an oath to uphold the law but who could not even bring himself to vote for that rule of law.
We can guess what happened. The Prime Minister had probably sent out a desperate memo, pleading with Cabinet colleagues to bring forward legislation—any legislation—to fill the pitiful gap in parliamentary schedules and to keep Tory Back Benchers happy and busy. Who was the only willing and eager star pupil to respond? Who was as keen as mustard to be top of the class? Yes, it was the Justice Secretary. I can see his response to the Prime Minister. It would start, “Dear Dave”. I appreciate that that is not parliamentary etiquette, but he is known as the “Call me Dave” Prime Minister.
The letter would go on, “I read your memo, begging for legislation to make it look like this Government are doing something, and also to keep those pesky, ungrateful Back Benchers happy. I know they hold you responsible for not winning the last general election. I am only too willing, Dave, to rush forward some legislation. It is a bit of a Christmas tree Bill, but it does mean that we can shove on as many baubles as we want. After all, the more tabloid friendly stuff might keep UKIP off our backs, along with those ungrateful Back Benchers of yours. Yours sincerely, Chris.”
Sir Alan Beith
Does the right hon. Gentleman see real benefit in returning to the days of a Labour Government when there was a criminal justice Bill every year—sometimes there were two—that often repealed a previous Bill and was often not brought into force?
Sadiq Khan
I am really pleased that the right hon. Gentleman asked that question. This is the third justice Bill of this Session. Two of the Bills have not yet received Royal Assent, and the Government are having a third bite of the cherry. Furthermore, the Justice Secretary tried to rewrite history. During our 13 years in government, crime did not go down by 5%, 10% or even by 20%; it went down by 43%, and that was according to independent statistics and not to dodgy figures that the Justice Secretary likes to rely on.
This latest criminal justice Bill is having its Second Reading before either of the other criminal justice Bills —the Anti-social Behaviour, Crime and Policing Bill and the Offender Rehabilitation Bill—that the Chair of the Select Committee was so keen to support have even received Royal Assent. Talk about desperation! The Select Committee Chairman should listen. We know the Government are in a mess when they bring in new laws to amend laws that they passed only a year ago, as some parts of this Bill seek to do. That is the mess this Government are in, and that is the shambolic way they are running our justice system.
I will not go through every one of the Bill’s 63 clauses, but I want to make myself clear. There are some elements of this Bill we support, some need further work and there are some we downright oppose. In part 1 of the Bill, the Government attempt to make up for the error they made when they abolished indeterminate sentences for public protection. I know that the hon. Member for Shipley (Philip Davies) feels strongly about that. They cannot admit they got it wrong and do a 180° U-turn, so they are doing a partial U-turn by bringing in a raft of new sentence proposals
Of course we support keeping the public safe from the most serious and violent criminals. That is why we opposed the right hon. and learned Member for Rushcliffe (Mr Clarke), the previous Justice Secretary, when he removed from judges the power to make IPPs to protect the public. To be fair to the current Justice Secretary, he would never have countenanced abolishing that power, but he cannot admit that because he voted for its abolition. We therefore have clause 3 and schedule 15 eligibility for life sentences and extended determinant sentences to try to address the mistakes of the Legal Aid, Sentences and Punishment of Offenders Act 2012.
Giving the Parole Board a say in whether some of the most serious criminals should be released at half time or when they reach two thirds of their sentence is no substitute for judges having the power when sentencing to impose an indeterminate sentence to protect the public. That will give the Parole Board an extra work load, yet I bet that the Justice Secretary cannot tell the House what extra resources he will give it to do its job properly. Silence. The Ministry of Justice’s impact assessment estimates that there will be at least an extra 1,100 parole hearings owing to the Bill. If all the supplementary work involved is added, there will be a huge addition to the Parole Board’s work load. How will that be resourced? Silence.
Surely even this Justice Secretary understands that a poorly resourced Parole Board making the wrong decisions about whether to release someone is as bad as automatic release. Wrong decisions made by the Parole Board because of an overburdened and stretched staff help no one; nor do delays in getting a hearing because of a backlog. There are problems and delays in prisoners getting the courses and treatments that they need as part of their sentencing plans and delays in getting a parole hearing, but let us imagine what the future holds.
Increasing the maximum for a handful of offences still leaves many offences uncovered that would have previously allowed a judge to give a more appropriate sentence to protect the public. By the way, although we do not oppose them, let us be clear that the provisions to increase the maximum life sentences for certain terrorism-related offences look tough, but the Ministry of Justice impact assessment confirms that this is a classic con trick. Do hon. Members know how many offenders were convicted in 2013 for the offences of either weapons training for terrorist purposes or training for terrorism? None. What about 2012? None. This new toughness will affect no one. None of those offences is being brought before the courts, so there is no one to punish and no one to deter. I wonder how the Justice Secretary intends to measure the impact of the change. He does not know. This is all about appearing to look tough.
Chris Grayling
If the right hon. Gentleman looks back, he will see that in the latter part of the past decade in the wake of the London bombings, our security services did a fine job of intercepting a number of terror plots. In that time, a number of people received 10-year jail sentences, which is the maximum available to the courts. On at least one occasion, the judge bemoaned his inability to provide a longer jail sentence because of the risk he believed the individual posed to the public. Happily, there are not large numbers of such cases. I think we would all agree that we do not want to see more of them. I hope that the provision will not be used very often, but it needs to be there in case it is necessary.
Sadiq Khan
The right hon. Gentleman confirms that he made a huge error in abolishing the indeterminate sentence to protect the public. He is trying to give the impression of being tough and providing the facilities that our security services need, but in fact the evidence suggests that there have been zero prosecutions for such offences.
Labour has led calls for something to be done about the inappropriate use of cautions for serious and violent offences, such as rape, and to stop those who repeatedly receive cautions. Those are not my words but something that the Library paper that accompanies the Bill says. The shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), has raised this, as indeed have I, at Justice questions. It has taken the Government some time even to admit that there is a problem with the growth of inappropriately used cautions for serious and violent offences.
I can remember the Justice Secretary getting into a tangle at Justice questions when trying to explain cautions for rape and saying that victims are to blame and that cautions are given because victims withdraw their statements. We must study in detail the proposals to see whether they will indeed address the public’s growing concern that the overuse of cautions is another example of this Government’s doing justice on the cheap.
Gareth Johnson (Dartford) (Con)
The right hon. Gentleman mentioned the Library briefing paper. He will have noticed that the highest number of both cautions and fixed penalty notices were issued in 2007, under the last Government. They are down by 45% today, which shows the contrast between the last Government and this Government.
Sadiq Khan
If the hon. Gentleman had done some more research and read the Bill as well, he would have seen not only that the number of cautions had started going down considerably but that this Bill does nothing to address the increased use of fixed penalty notices, penalty notices, warnings and conditional cautions. I expect that he will support our amendments in Committee when we try to improve this hopeless Bill.
Taken as a whole, the changes in part 1 of the Bill will see more people in our prisons. Indeed, the Government’s own impact assessment estimates that an additional 1,050 prison places will be needed. However, as of last Friday there were just 510 places left in the whole prison system, with the secure estate operating at in excess of 99% capacity, which usually sees Operation Safeguard kicking in. The Justice Secretary needs to be straight about where he plans to keep these additional prisoners: with his flagship Titan prison not due on stream until 2017, the public have a right to know that.
Chris Grayling
If the right hon. Gentleman looks at the numbers, he will see that we are planning in the next 15 months to open up around 2,000 new adult male prison places.
Sadiq Khan
The problem is that the Justice Secretary is closing down prisons and does not explain where the money for these additional prison places will come from. His own impact assessment is silent on that.
Sadiq Khan
They are not in the budget, because the average cost of a prisoner is £42,000 a year. If we multiply that figure by the increased number of prisoners that the Justice Secretary’s impact assessment says there will be—1,050—it comes to a total of £44 million a year. That is not in the budget.
Chris Grayling
The right hon. Gentleman needs to spend a bit of time doing maths. I simply point, for example, to the new house block that will open at Parc prison in south Wales in the next few months, where the average cost per prison place is about £15,000.
Sadiq Khan
I am happy to have a ding-dong with the Justice Secretary. That figure applies in prisons such as Oakwood, which are failing—new purpose-built prisons. In a prison such as the one I visited last week in Winchester the average cost is £42,000; in a prison such as Wandsworth, it is £44,000; in Brixton, £46,000; and in Pentonville, £48,000. He is just plucking figures out of thin air and assuming that all 87,000 prisoners have the same £15,000-a-year cost. That is not the case and he has to be honest enough to recognise that there are far too many expensive prison places because of the legacy of his cancelling the new prisons and closing down too many over the last four years.
The concern is that the Justice Secretary talks a good talk, especially when briefing the right-wing media, but he simply does not care about or pay attention to detail, as he is working on the basis that he will be long gone before any of his mess needs to be cleared up. After all, he left a huge mess in the Department for Work and Pensions with his Work programme. He is assuming that somebody else will be left to pick up the pieces of privatising probation, of legal aid and of this prison population crisis.
Dr Huppert
While the right hon. Gentleman is in the mood to do mathematics, will he advise us of the extra cost to the public purse of the extra 30,000 people in prison between the beginning of the last Labour Government and the end of the last Labour Government? Will he give us an estimate of how much that cost?
Sadiq Khan
If we did a cost-benefit analysis of the number of people who were saved the misery of being the victims of crime as crime went down by 43%, and of the additional cost of having extra police officers, which led to a record decrease in crime, I am sure that the hon. Gentleman would accept that there was value for money.
Keith Vaz
As my right hon. Friend knows, there is a large number of foreign national prisoners in the prison estate, costing the taxpayer, as he says, an enormous amount of money. What we need is not legislation but a focus on trying to get them removed to their country of origin. Making sure that that is done would be a better use of the Government’s time than building more prisons.
Sadiq Khan
My right hon. Friend will know that the number of foreign prisoners in our prisons is just a bit above 10,000. That has been the figure for the past four years, and the Government have done nothing to get it down. They would do better to pay attention to getting it down, rather than to getting headlines in the Daily Mail or The Daily Telegraph. That would free up places and lead to a huge improvement.
We broadly welcome the direction of travel on electronic monitoring, subject to clarification on costs and technical developments; the hon. Member for Cambridge (Dr Huppert) raised some of the concerns that we have that need to be addressed. We will closely scrutinise the ability of the Ministry of Justice properly to monitor the private companies awarded the contracts, to ensure that the public get value for money and the Ministry is no longer taken for a ride.
We do not oppose the plans relating to automatic release and recall, and we welcome clause 16, which bans the possession of extreme pornographic images depicting rape. A number of victim groups and experts have called for that change, and the Government and the Justice Secretary should be commended for listening to the evidence.
I turn to the second part of the Bill, on youth justice. It is worth pausing to reflect on the dramatic fall over the past 10 years or so in the number of young people held in custody. The most recent figures show a drop of more than 60%. I pay tribute to the hard work of the Youth Justice Board and youth offending teams up and down the country. I am proud of Labour’s record in setting up the YJB, which led to these falls. I wish the outgoing chair well and the new chair the best of luck in his endeavours. The YJB’s innovative ways of working have delivered enormous economic and social benefits to society, and I for one am delighted that we were successful in keeping it doing its important job, rather than it being abolished two weeks ago, as the Government had wanted.
We have reached a hard core of young offenders in our youth justice system, and that brings a different set of challenges. As has been said, reoffending rates for this hard core remain stubbornly high. The Government’s preferred solution is secure colleges, and the Bill paves the way for their introduction. Ministers have announced only one so far, in Leicestershire. Construction will not start until 2015. There is no clear idea of where the £85 million that it will cost will come from, or what will be cut to find the money. It smacks of another commitment made by this Justice Secretary for which the next Government will be left to pick up the tab. In Committee, we will need to get down to the details, but already a number of groups have expressed concerns about the plans. There will be just one secure college; either it will be a huge college for the whole country—a teenage Titan prison, with all the problems that will entail—or only those in the east midlands will benefit.
There are also concerns about how restraint is planned to be used in the new secure college, and how the college will address the problems underlying offending, such as mental health problems, drug and alcohol addiction—mentioned by my right hon. Friend the Member for Leicester East (Keith Vaz), the Chair of the Select Committee on Home Affairs—and histories of abuse, trauma and violence. It is also unclear, despite the question from my hon. Friend the Member for Stretford and Urmston (Kate Green), what provision is planned for young females. There is a concern, to be frank, that this is a return to the discredited borstal system.
Nor have the Government made clear their intentions for the network of secure children’s homes. Granted, those are expensive, but I have visited them and seen at first hand the range of severe problems that young people there have to deal with. Extreme caution is needed before this group of highly vulnerable people is lumped in with the wider youth justice system.
We will want convincing that forking out £85 million on bricks and mortar is better than spending the money on improving the amount of education and rehabilitative work in the existing secure training centre network. I see that the Chair of the Select Committee on Justice is here; the Justice Committee recently argued for a “fundamental shift” of resources from custody to early intervention with young people at risk of reoffending. It also made the point that most young offenders would not be in custody long enough—the average is 79 days—for the secure college to do any good in improving basic skills and addressing offending behaviour. A number of experts have also raised concerns, which we shall explore in Committee.
The third part of the Bill proposes changes in our courts. On the face of it, efforts to speed up court proceedings and make them more efficient—for example, by ensuring easier and quicker appeals to the Supreme Court, and by having magistrates courts deal with lower-level offenders faster—are to be welcomed, but this should not be to the detriment of proper open justice or due process. The Civil Justice Council, the Magistrates Association and others have expressed concerns that we should explore in Committee. Similarly, no one opposes convicted criminals being made to make amends for their crimes. The Government now wish to tack a charge on to those found guilty towards the cost of their trial. There have been difficulties collecting fines and the victim surcharge from guilty criminals, sometimes as a result of organisational problems, but sometimes because criminals simply do not have enough money. There are between £1.4 billion and £2 billion in uncollected fines, and only this weekend it was reported that £13 million in victim surcharge had failed to be collected by the Government. I am sure that the Justice Secretary did not mean it when he said that that was because they are all dead, or that outsourcing all of this will solve all the problems. We will seek guarantees that this will not be yet another trumpeted announcement that ends in failure down the years as non-payments rack up and are written off.
It is right that the law on jurors and the use of the internet keeps up to date with the march of technology. I, too, am pleased that the Government have listened to the recommendations of the Law Commission in that respect. However, as Members will recall from the high-profile trial of Vicky Pryce, there are problems with juries not understanding their role sufficiently, and we shall explore what steps can be taken to educate and inform the public and jurors about the important civic function of jury service so that it is less of an alien process to them. I welcome proposals to raise the juror age limit to 75.
The fourth part of the Bill deals with changes to judicial review. In a country without a written constitution, we tinker at our peril with important checks and balances such as judicial review without proper thought. We know the Lord Chancellor’s view on judicial review from a piece for the newspaper that he and his SpAds prefer to brief—the Daily Mail. He said that
“judicial review…is not a promotional tool for countless Left-wing campaigners. So that is why we are publishing our proposals for change…Britain cannot afford to allow a culture of Left-wing-dominated, single-issue activism to hold back our country from investing in infrastructure and new sources of energy”—
news, I am sure, to Conservative Back Benchers and local authorities that have been involved in JRs against Heathrow expansion, High Speed 2 and, no doubt in future, wind farms and fracking.
Let me explain the position to the Justice Secretary in plain English without any long legal words or gobbledegook. MPs, individual citizens, community groups, organisations and local authorities are not
“part of a culture of Left-wing dominated”
campaigners when they legitimately ask the judiciary to review decisions made by public authorities, including Ministers.
To be frank, delays in HS2 or Crossrail 2, the lack of houses being built or of big infrastructure are more to do with the incompetence and policies of this Government than with judicial review. It is hardly surprising that people believe that the Justice Secretary’s true intentions are to insulate his Government’s bad decision making from any kind of challenge. The Government have also sought to rein in legal aid and no win, no fee cases; to gag campaign groups with their shoddy Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014; and constantly to attack human rights laws—there is a pattern. These are the tools by which our citizens hold Governments to account, and the Government are weakening them.
Kate Green
I am glad that my right hon. Friend makes that point, because the Justice Secretary is quite wrong to suggest that the majority of judicial review cases are about campaigners making campaign points. They are about individuals who have suffered personal injustice at the hands of an over-powerful state, and we ought to maintain that ultimate protection for those individuals, many of whom are disabled, many of whom are vulnerable, and many of whom are poorly educated. Does my right hon. Friend not agree that, whatever the Justice Secretary presents as the effect of these changes, the reality is that it is vulnerable individuals who lose out the most?
Sadiq Khan
Absolutely. The concerns are that as a consequence of the changes decisions made by Ministers and other public authorities will be put above the rule of law. Those authorities will almost be free to do as they please, to the ludicrous extent that breaking the law appears to be of no concern to the Justice Secretary.
It is clear the Justice Secretary’s measures are underpinned by a majoritarian view of the world in which democracy is only about elections, and those who win can do as they please in between. I would be more sympathetic if the Conservatives had actually won the last general election. The Justice Secretary’s policies are dangerous. Democracy is more than elections: I am not alone in that view, and neither is my hon. Friend the Member for Stretford and Urmston. Lord Dyson, the Master of the Rolls, said that
“there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review.”
The former Lord Chief Justice, the esteemed Lord Woolf, said:
“In our system, without its written constitution embedded in our law so it can't be changed, judicial review is critical.”
He also said that the Ministry of Justice has shown a
“remarkable lack of concern for the precision of the facts”.
Joe Rukin, co-ordinator of the Stop HS2 campaign—that infamous left-wing dominated campaign group—said:
“The government seem to be making out that they believe any of their infrastructure plans should be above the law and do not realise that it is essential in a democratic society to be able to hold the government to account”.
Chris Grayling
It is the case, if I am not mistaken, that HS2 can happen only if the relevant measure is passed in legislative form by both Houses of Parliament. Does the right hon. Gentleman believe that the courts and people outside Parliament should be able to override democratic decision making by the elected House and the House of Lords?
Sadiq Khan
That question raises so many concerns about the Justice Secretary’s lack of knowledge that it is really worrying. Citizens should be able to challenge the decisions that are made by Ministers, including him and Labour Ministers. That might mean that the courts find that some Government decisions are wrong. For example, they might find against plans to expand Heathrow with a third runway. We have to accept that decisions made by the Executive should be able to be challenged by the judiciary. He should accept the important concept of the separation of powers. We provide checks and balances for the judiciary, the Executive and the legislature. We are not a country in which the Cabinet can do whatever it likes.
Philip Davies (Shipley) (Con)
I am slightly perturbed by what the right hon. Gentleman has said. These are not decisions that my right hon. Friend the Justice Secretary has said the Government would take—he was talking about decisions that Parliament would take. What is essential in a democratic system is that the will of the people exercised through Parliament is sovereign, not judges who have been elected by nobody.
Sadiq Khan
I do not subscribe to the view that citizens have a role to play only once every five years. They have a role to play in an active democracy between elections as well. That is the difference between the hon. Gentleman’s majoritarian view and mine. The irony is that the Foreign Secretary gets it. If the hon. Gentleman had listened to the Foreign Secretary in the statement on Ukraine and Syria, he would have heard what he had to say. It is a shame that the Justice Secretary and the hon. Gentleman did not listen to what the Foreign Secretary said about the importance of the rule of law.
Sadiq Khan
I shall make some progress, but I shall come back to the hon. Gentleman.
I hold up my hands up as a former Minister and admit that for someone who is part of the Executive the threat of being judicially reviewed can sometimes feel like a nuisance. Judicial review can be a pain for decision makers, but that is the point. It is about making sure that decisions are taken properly, follow due process and are within the laws of the land. If we expect our citizens to abide by the rule of law, the Government should be no different, which means acting lawfully, not scaring off opponents before the game has begun, or imposing huge consequences on the team that loses. To stretch the sporting analogy further, under their proposals, the Government would be playing down a steep slope for the full 90 minutes, defending a much smaller goal than the one into which they would be trying to score. Their opponents would be running uphill for the whole game, and have a much smaller set of goalposts to aim at. That is not fair, and it is not justice.
It is worth noting what is not in the Bill. Despite all the Government’s recent talk about victims, there is nothing about a victims law—what a missed opportunity—which will disappoint not just victims and potential victims but no doubt the hon. Member for Witham (Priti Patel), who has been vocal in her support for the victims law proposed by Labour. Instead, victims and witnesses will have to wait for a Labour Government to serve that law to stop them being ignored and trampled by the justice system. There is also little in the Bill to address the specific problems faced by women, those with mental health problems and ethnic minority communities in our justice system.
I have to congratulate the Lord Chancellor. He has achieved something in his short time in the job that few of his predecessors could ever have dreamed of: he has managed to alienate every part of the justice system. Prison staff are more under pressure and threatened in their day-to-day work environment than ever. Probation staff feel betrayed. They have done all that has been asked of them, then been sold off to the likes of those serial under-performers, G4S, Serco and A4E. Legal professionals are horrified at the erosion of access to justice and the insulation of the powerful from challenge that has happened under the Lord Chancellor’s watch. Charities and community groups are demoralised at the ignorance shown towards the European convention on human rights and the Human Rights Act. Things are so bad that there is even the threat that the legal profession might boycott the Justice Secretary’s planned celebrations for the 800th birthday of Magna Carta next year. What is more, he has managed to deliver the first ever industrial action by barristers.
The Bill is all about trying to create some work for rebellious, bored and troublesome Back Benchers, some of whom we will hear from later. The Bill may well succeed in doing that, but the idea that it will do anything substantive to reduce crime, help victims to be at the centre of the justice system, improve our courts system or keep our communities significantly safer is a joke, a bit like the office of Lord Chancellor has become with this incumbent.
Mr Jonathan Djanogly (Huntingdon) (Con)
I am not sure whether I have been described before as a bored, troublesome Back Bencher, but I wholeheartedly welcome the Bill. Its proposals are sensible and move forward the Government’s position on criminal law reform. I congratulate the Lord Chancellor on his earlier presentation, which I note to the right hon. Member for Tooting (Sadiq Khan) was very well received on the Government Benches.
Part 3 allows summary trials for non-imprisonable offences “on the papers” only and without the defendant being present. This is an entirely sensible proposal, but it forms just a small part of a wider debate about which case should be going to which court. Of course, all criminal cases start in magistrates courts, and the vast majority of them are disposed of there without ever going to the Crown court. This is important, first because most of us wholly support the ancient British tradition of low-level crimes being judged by magistrates, but secondly because the cases where an election can be made cost about £3,400 in a Crown court compared with the £900 they would cost in a magistrates court. There is the further question of what should be a criminal offence at all. I would be happy to debate, for instance, whether TV licence evasion is suitable for criminal rather than civil trial.
One of the main stumbling blocks to those part 3 proposals in the past has been disagreement between Government Departments, and I congratulate the Lord Chancellor on knocking the right heads together. The other problem has been the magistrates, who have been unwilling to lessen their work load, give that that has already reduced by more than one third during the last five years or so. Furthermore, the moving of traffic cases to a single traffic court in each police force area, which I think is being proposed, will leave some magistrates courts light-handed and more open to a merger proposal with another local court. There is significant volume here. For instance, speeding alone accounts for some 10% of all convictions. So the issues here are slightly more complicated and need to be placed into context.
Magistrates have also felt a bit under attack in recent years owing to the efficiency changes that really had to be made, and my concern here is that we could be reducing their work load further, without giving them the extra quality work that they deserve. Not only do justices of the peace cost less, but cases go through much faster. Sentencing is not for longer periods if a case goes to the Crown court, juries are more likely to acquit than magistrates, and the Crown procedural delays often mean that witnesses are not available. There are three interconnected issues. The first concerns bulk non-serious cases, which is handled in the Bill. Secondly, there are the magistrates courts that these cases are being dealt in, and, thirdly, as we reduce magistrates input into these bulk areas, there is the question of how to increase their involvement in other areas.
On the first bulk issue, I agree that it is ridiculous that three JPs need to hear a small traffic case in open court with prosecutors involved in reading out case details. I appreciate and agree that defendants should retain the right to a full hearing in open court should they so require, but let us also appreciate that around half of traffic proceedings have no plea entered at all, a point that came up earlier.
On the second issue of magistrates courts being used, will the Minister please confirm that traffic work will be moved to a single court per police area? This is sensible, and I hope that a thorough review of procedure will be undertaken at the same time. I am sure that significant savings and a better service could be provided through better IT and procedures, but this could go yet further and be put into the context of a wider review. Of course, I would maintain that the closure of around 140 courts by the Government was correct, not least because as a result cases are proceeding quicker and at a lower cost. One of the keys to effective court procedure is to have larger court centres where listing and delays can be better managed. If we add to this continued use of technology and more virtual courtrooms in police stations, there is much more we could do. The bulk processing of non-imprisonable cases is part of this, but it would be better placed in the context of the wider whole.
Mr George Howarth (Knowsley) (Lab)
The hon. Gentleman is right to make the point that he does about minor traffic offences, but along with many others no doubt, I have been contacted by constituents who are concerned about the boundary between a traffic offence that could be dealt with in the way he describes, and where it spills over into what is, in effect, a criminal offence. Does he agree that if the approach he advocates is adopted, great care needs to be taken to set the boundary?
Mr Djanogly
I certainly agree with that. The Minister may wish to come back to this, but I think that that would be done in discussion with prosecutors, and there would be the ability for someone to request three magistrates if they so wished.
The main possible gap that I see here is on the third issue of wider JP powers, and we should be reviewing part 3 in the context of new summary only offences and an increase of maximum JP sentences to 12 months, not least to give a clear indication to the magistracy of our support. I had heard of some limited Government proposals to make shoplifting a summary only offence where the stolen goods are valued at £200 or less. Perhaps the Minister will advise the House on his proposals in this regard. The Magistrates Association has been advocating new summary only offences for some drugs possession, making off without payment, going equipped for theft, small benefit fraud, some affray and driving offences, some assault charges and failure to surrender to bail. I appreciate that this could result in a rise in the prison population, which the Magistrates Association considers to be about 1,000 people, but on the other side there would be court savings of £30 million to £40 million. Again, I would appreciate the Minister commenting on these proposals.
My second point relates to raising the upper age limit for jury service from 70 to 75. That sounds sensible given the upward age of people in the UK, but will the Minister say a little more about the research that has been done to confirm this? Will the change have any negative implications for younger people not being called? The problem that I found here was the reluctance by the judiciary to allow research to be carried out on jurors. My instinct is that fewer people are now willing to be called than was the case in the past. I would be concerned if the Bill exacerbated that, on the basis that it could allow working people to be let off more easily. My suspicions here are not reduced by a Government note that I saw, mentioning that they expect some savings to result from a reduction in the number of jurors in employment. I do not see that as a good objective for our democratic system.
When I did jury service, on the first day a man rushed in shouting at the court staff that he had 2,500 chickens being delivered that day and who would look after them. He was let off service on the spot, despite presumably having had long notice of his jury date, although perhaps not of his chicken delivery. The point I am making is that jury service is an important part of citizenship; so much so that I think we should be putting as much effort into educating the young in school about its benefits to society, and ensuring that people serve when called, as we are into pushing up the service age. Perhaps the Minister will comment on that.
My third issue relates to the new contempt of court provisions on jury misconduct. That is important not only for ensuring a fair trial and saving costs, but for retaining confidence in the jury system. If a whole trail needs to be started again because of, say, internet research carried out by one juror, that is hugely frustrating for the other jurors on the case, who could be put off doing service again. My wider point is that access to technology is having such a huge effect on so many areas of our lives, and across all Departments, that perhaps we need a cross-departmental review of its impact on existing legislation.
Clauses 29 to 31 relate to criminals paying their own court costs, as was mentioned earlier. That sounds sensible, and it is something I support, but I note that the payment is made by the criminal after money penalties, after compensation to victims, after the victim surcharge and after prosecution costs. I would not confuse that with the point made by my hon. Friend the Member for Cambridge (Dr Huppert) on prior debts, but will the Minister please provide more information on what proportion of those costs are likely to be recovered and whether administration recovery charges make the proposal cost-effective?
Finally, on judicial review, I recall that as a young law student in the 1980s we had to learn about administrative law, but the striking thing then was how rarely it was used, and then only for very serious abuses of power. We have since seen a huge growth industry in which a willing judiciary has now opened up three or four courts across the country to hear those applications, which increasingly resemble appeals, rather than judicial review, or cheaper alternatives to proper cases, often funded by third-party organisations, some of which stay anonymous. That must change, and I am pleased, without addressing the detail, to see those provisions in part 4 of the Bill.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
I am pleased to have an opportunity to take part in this debate, although several provisions in the Bill worry me intensely. The Bill has more to do with posturing on the part of the Government than with any real policy initiative. The Justice Secretary has presented it at a time when two other crime-related Bills are still awaiting Royal Assent. Indeed, some of its provisions seem to undermine those set out in the Offender Rehabilitation Bill, which is yet to reach the statute book.
Similarly, the Bill’s proposed reforms to judicial review, as set out in part 4, cut across provisions contained in the Immigration Bill—a point ably made by the Chair of the Home Affairs Committee. Most people would agree that there is a need to introduce a more robust process to weed out the unmeritorious cases, but we must be very careful not in effect to deny individuals who really rely on it. Furthermore, everybody accepts that the review process is a vital component of a healthy democracy: the individual’s right to challenge the over-mighty and to secure justice in properly decided administrative law cases. We limit those rights at our peril.
I will quote from a very interesting article that appeared in last Thursday’s edition of The Times, penned by a Member of the other place, a very experienced Queen’s counsel who has taken judicial review cases on many occasions and defended Governments in such cases as well. He wrote:
“Clause 50 provides that courts and tribunals must refuse to allow a judicial review application to proceed to a full hearing if the defendant shows that it is ‘highly likely’ that the outcome for the applicant ‘would not have been substantially different if the conduct complained of had not occurred’. If the case does not proceed to a full hearing, the court must refuse any remedy to the applicant if that same test is satisfied.
The proposal is objectionable for constitutional reasons. The clause will instruct judges to ignore unlawful conduct and to do so in a context where the government itself is the main defendant.
All governments come to resent the power of the judiciary to identify and remedy unlawful conduct. But until now they have, with greater or lesser enthusiasm, recognised the value of what is central to the rule of law. After all, they will not be in power indefinitely…It tells the Government, and the world, that what has been done is unlawful. Ministers and civil servants know that they must change their conduct for the future, and they do so.”
He concludes the article by stating:
“Over the past 40 years, judicial review has helped to prevent abuse of power by governments of all complexions. It is ironic that judicial review now needs protection from a politician whose reforms would neuter its force by the use of political slogans that have no factual basis and are ignorant of legal and constitutional principle.”
Those are strong words from an expert in the field. I think that we would do well to take them on board and consider their purport.
The timetabling of the Bill is also a little confusing. Although it is having its Second Reading today, we must assume that its introduction has been orchestrated so that it will be carried over at the end of the Session, no doubt to make the Government appear proactive and to mask the fact that so few significant pieces of Government legislation remain.
Dr Huppert
The right hon. Gentleman, as ever, is making some interesting points, but is he really saying that the test of a Government is the number of pieces of legislation they pass? I would have thought that he, like me, thinks that Parliament has much more to do than simply pass legislation.
Mr Llwyd
No, I am not saying that. In fact, I was a long-time critic of the Blair Administration, who introduced criminal Bills almost every teatime. That is not a test at all. Also, several measures that the Justice Secretary referred to in his opening speech today are rehashes of various things we have seen in the press over the past few months. All I am saying is that when a Government run out of steam, the benchmark is not how many pieces of legislation they pass—otherwise, heaven knows where we would end up.
I am mindful that other Members wish to speak and so will try not to detain the House for long. Part 1 of the Bill creates a number of offences, many of which are considered unnecessary at best and, at worst, vindictive provisions that are likely to increase the prison population considerably. Clause 4 introduces a drastic change to release arrangements for offenders serving extended determinate sentences, who are currently entitled to automatic release after they have served two thirds of their sentence. Instead, they will now be required to appear before the Parole Board so that it can assess whether they are fit to be released on licence.
It is important to note that extended determinate sentences were enacted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a very recent piece of legislation. That is not the only example in the Bill of the Government seeking to amend provisions introduced by their own justice Bills. Extended determinate sentences from the outset increased the minimum tariff a person was required to spend in custody from half of their sentence to two thirds. By stipulating that offenders will also have to satisfy the Parole Board before being considered for release, the amount of time that is available for supervision and rehabilitation back into the community is further decreased.
Furthermore, the Government appear to have drastically underestimated the impact those changes will have on the Parole Board’s resources and the size of the prison population. In their impact assessment, the Government predict that the changes introduced in clauses 1 to 5 will result in an increase of 1,000 prison places and an increase of 1,100 Parole Board hearings per year between implementation and 2030. The Prison Reform Trust has written to Members of Parliament urging us to seek clarification from the Government on how they calculate these figures. After all, the Government of the time underestimated the impact that IPP sentences—indeterminate sentences for public protection—would have on the prison population. When those sentences were first debated in Parliament—I recall the debates—the Government were insistent that the new sentence would increase the prison population by 900 places. By June 2013, 5,620 offenders were still in custody serving the now-abolished IPP sentences, 3,549 of whom were being held beyond their tariff date. The impact on the operation of the Parole Board has been nothing short of overwhelming. In August 2013, the backlog of cases still awaiting hearings by the Parole Board was 1,352, with IPP offenders accounting for 61% of indeterminate review cases. Yet the Government think it apposite to increase the workload of the Parole Board yet again by introducing changes to the automatic release of offenders—and this at a time when Parole Board staff numbers have been reduced by nearly one in five.
The release test for recalled prisoners provided for in clauses 7 and 8 will similarly place an extra burden on the beleaguered Parole Board. At present, recalled offenders serving determinate sentences undergo a fixed-term recall whereby they serve 28 days in custody and are then automatically released. Under clauses 7 and 8, however, these offenders will serve the remainder of their sentence in custody if the Secretary of State determines that an offender is likely to breach a condition of their licence. The Parole Board would need to conduct a release test before certifying that the offender can in fact be released. The Prison Reform Trust has drawn attention to the fact that this pays scant regard to the peculiar circumstances of offenders with learning disabilities and mental health problems, many of whom find it difficult to understand the terms of their licence.
Once again, the Government’s estimate of how many offenders will be affected by this change seems worryingly off the mark. The impact assessment calculates that the change will result in 75 offenders per year being affected and an extra 50 prison places being required. However, this blatantly fails to take into account the likely impact of the changes being introduced concurrently by the Government’s Offender Rehabilitation Bill, still being considered by the other place, which will result in mandatory supervision being given to all offenders serving sentences of 12 months or less. The impact assessment for that Bill estimates that 13,000 extra offenders will be recalled or committed to custody each year, with an increase of 1,600 places in the prison population. I would be grateful if the Minister clarified how the Ministry of Justice has calculated that so few offenders will be affected by the combined impact of this Bill and the Offender Rehabilitation Bill.
Clause 8 gives the Secretary of State the power to use the affirmative resolution procedure in order to change the release test for recalled prisoners serving determinate sentences. I am worried that the Government are proposing to use secondary legislation to implement such a significant change, and I hope that they will reconsider this provision ahead of the Bill’s Committee stage.
Clauses 10 and 11 introduce a new statutory offence of being unlawfully at large following a recall to custody. This would be triable either way and could result in a convicted offender being imprisoned for up to two years. Once again, the Government seem to have omitted any safeguard for vulnerable offenders with learning disabilities or mental health problems that would impair their ability to understand the full terms of their release. It would be beneficial if the Government inserted such a safeguard ahead of the Bill’s later stages. For example, it would be useful if the Bill made a distinction between offenders who abscond wilfully and those who do not report as a result of a misunderstanding or a miscommunication. According to research conducted by the Prison Reform Trust in 2007, between 20% and 30% of offenders were estimated to have a learning disability that affected their ability to cope with the complexities of the criminal justice system and the co-operation expected of them. During debates on the Offender Rehabilitation Bill in the other place, the Government pledged to produce special versions of licence conditions for individuals with learning difficulties. I would welcome the Minister’s assurance that they intend to keep true to that pledge, and indeed any other provisions that they will be making for vulnerable offenders so that they can understand what actions are strictly required of them.
My final point on part 1 concerns the new offence introduced in clause 16 that criminalises the possession of pornographic materials depicting rape and non-consensual sexual penetration. I truly applaud the Government’s efforts in this regard to minimise the use and dissemination of extreme pornographic materials, and particularly the work they are doing to minimise the opportunities for children to come into contact with this filth. In my view, however, there can be no benefit to society or to the individuals involved if persons convicted of sex offences are left languishing in prison without treatment or, worse, released into the community without treatment. I welcome what the Government are doing, but ask them to go one step further in ensuring that these perpetrators are dealt with positively, if that is the right word.
Although the internet sex offender treatment programme is available for offenders on supervision in the community, it is, rather perplexingly, not available in prisons. In relation to the availability of the sex offender treatment programmes which, conversely, are available in custody, I understand that as of July 2012, 21 prisons offered these programmes, despite the fact that offenders are serving time in relation to sex offences in over 100 prisons. This means that a person convicted of a sex offence has roughly only a one-in-six chance of being able to access treatment that would address his or her offending behaviour. I urge the Government to improve their provision of treatment programmes for these offenders before incarcerating yet more for similar offences.
In summary, the changes in part 1 will result in greater overcrowding of the prison estate and a greater burden being placed on the Parole Board, despite no mention being made, at least as yet, of any extra resources being allocated to deal with this increase. The proposals appear to be rushed and ill thought out, and I hope they do not end up being shambolic, but I would not be surprised. I urge the Government to reconsider the motivation behind these new offences before the Bill reaches its later stages.
I wish to make a few remarks about the changes to youth custody introduced in part 2. The proposal to introduce new secure colleges for children aged 12 to 17, which would be implemented by the passing of clauses 17 to 19, was first published in a recent consultation entitled “Transforming Youth Custody”. I agree with the views posited by the Howard League for Penal Reform and the Prison Reform Trust that the introduction of secure colleges may result in an increase in custodial sentencing for young offenders and longer sentences being handed out. I am particularly concerned that clause 18 would allow for these secure colleges to be contracted out to private companies, and that under the terms of schedule 4 those companies will be granted the opportunity to use reasonable force and restraint to enforce “good order and discipline”.
Chris Grayling
The right hon. Gentleman refers to contracting out to private companies. It is worth putting on record that the expertise we want to see in those running secure colleges is educational expertise. That skill does not exist within the public sector, and we need to bring it in from those who have real expertise in education and training. I would not want the door to be closed on that for ideological reasons.
Mr Llwyd
I hear what the Secretary of State says. He also said earlier that this will basically be a college, but with a fence around it. I accept that and hope that that is what will happen. That is fine, but I will mention in passing that the director of the Howard League for Penal Reform has said that she is concerned that
“restraining children for not doing what they are told is dangerous and gives the erroneous lesson that might is right.”
The UN Committee on the Rights of the Child posited in 2007:
“Restraint or force can be used only when the child poses an imminent threat of injury to him or herself or others, and only when all other means of control have been exhausted.”
I will accept at face value what the Secretary of State has said and I hope this will result in a benign regime that will be useful to the individuals concerned in turning them away from further misbehaviour and criminal behaviour.
Will the Government make clear what inspection arrangements will be made for the proposed secure colleges? The Magistrates Association has argued that if the running of secure colleges is to be contracted out to private companies, they must be given specific targets and must be rigorously inspected. I would also point out that, at present, neither the Bill nor the explanatory notes make any mention of what provision will be made for girls in the secure colleges—a point that has already been raised by other Members. I am sure that the Minister, in closing, will be able to tell the House what the inspection regime will be. Will it partly involve the Education Department, and what provision will be made for young women and girls under the new set-up?
Finally, I wish to make a few remarks about the proposals in part 3, which would impose court charges on defendants in criminal cases. Clauses 29 and 30 stipulate that, in setting charges, the Lord Chancellor should have regard to a number of factors, including whether a defendant pleaded guilty and thus whether they proceeded to trial. As Justice has pointed out, the imposition of such a charge may perversely incentivise defendants to plead guilty so as to avoid paying higher charges, and so undermine the presumption of innocence. That is certainly not fanciful, because defendants I have come across in my professional career were more keen on finding out what the cost would be at the end of the day than anything else. That may seem strange, but it is true.
It is also possible that further charges will be brought against an individual if he or she pursues an appeal, which would place another barrier to fair and equal access to justice. As Justice points out, restricting an individual’s access to a court or tribunal could well be incompatible with article 6(1) of the European convention on human rights. A thorough impact assessment should also be made of the impact of bringing the proposed charges against any defendant, to ensure that it is reasonable and just to do so in all the circumstances.
The Magistrates Association has argued that courts should be given discretion in deciding whether to impose the fees, so as to ensure that it is both appropriate and reasonable in all the circumstances. After all, the Government should not ignore the fact that prisoners—and defendants, in fact—are far more likely to be in financial difficulty than members of the general public. According to figures recorded in the “Bromley Briefings Prison Factfile” of August 2013, 68% of prisoners were unemployed in the four weeks prior to custody and 13% have never had a job, compared with 3.9% of the general population.
In summary, the Bill introduces changes that will increase the already stretched prison population and place undoubted further burdens on the Parole Board. It is highly disappointing that instead of working to encourage rehabilitation, the Government have chosen to introduce new criminal offences and to curtail the release of prisoners. They have also chosen to use this justice Bill as a vehicle for implementing ill-considered changes to youth custody, but I accept what the Secretary of State has said and await further detail. The priority surely must be that people are dealt with and rehabilitated properly and that the public are protected.
It is my belief that nothing is being done in this Bill to tackle the root causes of crime or to help victims, which should be the driving force of any criminal Bill. The problem, of course, is that the larger parties, as always, are dancing to the tabloid drumbeat. It is virtually impossible to have a sensible discussion in this place about penal policy, because of our friends at the tabloids. That is regrettable, but I am afraid it is a fact. All in all, there are many things in this Bill that need to be put right in Committee and I hope that hon. Members from all parties will consider it their duty to do so over the coming weeks.
Nick Herbert (Arundel and South Downs) (Con)
Unlike the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), I welcome many of the sensible provisions in the Bill. These amendments to the operation of the law seem to me to make common sense.
I am not sure whether I understood the Opposition’s point about judicial review. If we accept that there has been a threefold increase in the number of applications for judicial review since 2000, are the Opposition making the case that there is nothing wrong with judicial review procedures or the way in which they are being used, or are they saying that there has been an increase in the number of poor-quality decisions by the Government and other public bodies? If the latter, the Opposition would be conceding that that happened largely on their watch. If we accept that there has been a very large rise, surely it makes sense to make a number of careful changes that will ensure that the system operates as intended, which is not to provide a vehicle for those who simply object to a decision and wish to test it in an alternative body—in this case, a court—but to ensure that decisions are made properly and subjected to the right and appropriate judicial scrutiny.
Sadiq Khan
I am surprised by the right hon. Gentleman’s comments, because he is usually thorough in his research. He should be aware that if we exclude immigration from judicial review, we will see that the situation has been static since the 1990s. A Bill passed 18 months ago by this Government moved immigration from judicial review to the tribunal system, so the problem they are seeking to address was dealt with nearly two years ago.
Nick Herbert
The right hon. Gentleman seems to be confirming that he does not believe that there is a problem, but that view is not shared on the Government Benches. In our view, the increase in the extent of judicial review does not just impose a cost—which is a serious matter in itself—but also means, dangerously, that decisions by the courts are increasingly substituting for decisions that should be made by Ministers, which was not the original purpose or intention of judicial review.
In his closing remarks, the right hon. Gentleman railed similarly against previous measures introduced by this Government to deal with legal aid and said there had been restrictions on access to justice. The Opposition’s problem is that they are very quick to criticise every proposal in the area of justice and criminal justice that is designed to ensure a sensible use of public funds and necessary savings. They are not able to explain how they would deal with the very real budgetary challenges that confront every Government Department, not least the Ministry of Justice, which has been required to make substantial savings. If, along the way, the Opposition oppose every measure and criticise sensible provisions such as that under discussion without saying how they would make the savings required, they simply have a credibility problem.
I welcome the Government’s proposals to deal with the problem of automatic early release and, in particular, the scale of the Justice Secretary’s ambition to go further in doing so. There is no doubt that automatic early release undermines public confidence in sentencing. When victims in particular, but also members of the public more widely, hear a sentence handed down in a court but later learn that offenders are, without question, automatically released much earlier—halfway, or earlier in the case of home detention curfew, which is described as early release—it undermines confidence in the system.
It would be much better to move to a system of honesty in sentencing, in which the sentence handed down bears a proper relation to the one actually served, whether that is a system of minimum and maximum sentences, as proposed by the Conservative party in its last manifesto, or sensible measures to curtail automatic early release of the kind that my right hon. Friend the Justice Secretary has just introduced for more serious offences. We should not accept the principle of automatic early release; it would be much better if release were earned and bore some relation to the prisoner’s conduct, progress in rehabilitation and suitability for release.
Even Members of the House of Commons find it difficult to understand or accept the early release of offenders. Many of us noted with surprise that when the courts handed down to a former Member a determinate sentence of eight months, we had no sooner said the words “Liberal Democrat” than that offender was released early, in that case to serve a period on home detention curfew and, subsequently, to enjoy a new career writing articles for The Guardian. All that undermines confidence in the criminal justice system.
Guy Opperman (Hexham) (Con)
My right hon. Friend is making a very good speech. To take him back to his more serious point, does he agree that linking the sentence and early release to passing drugs tests for a drug addict or to passing a literary examination or literacy tests is very much the way we should go?
Nick Herbert
My hon. Friend is right to bring me back to my serious point, and I wholly agree with him. That is exactly the way we should go, and that is what I meant by the concept of earned release.
Bob Stewart (Beckenham) (Con)
I thank my right hon. Friend for making a very good point. I have listened to him carefully. Is it not fairer that a person who has committed a crime should serve two years, say, but that if they do not satisfy proper criteria, the sentence would be three years? The public would then totally understand the sentence.
Nick Herbert
That is what I meant by the concept of having minimum and maximum sentences. There would still be a determinate sentence with a maximum term—it would not be an indeterminate sentence, which is reserved for much more serious crimes—but release after the minimum point would nevertheless depend on fulfilling certain conditions, including those referred to by my hon. Friend the Member for Hexham (Guy Opperman).
I particularly welcome the measures relating to the electronic monitoring of offenders and provisions for the greater use of tagging for the supervision of offenders released from custody. There is no doubt that the advance of technology and the use of satellite tracking mean that a huge and so far largely untapped potential exists to ensure greater confidence in the criminal justice system and enable the safe and secure monitoring of offenders. Whether that is for offenders who receive some kind of curfew as part of their sentence, or whether the purpose is to ensure their safe and effective supervision on release, much more could be done, and has already been done in other countries.
There are two particular lessons. The first is that we should question how quickly the criminal justice system can embrace new technology. The criminal justice system is very centralised, which does not always make it easy to have local innovation in its operation, whether in relation to how certain courts operate—I will come on to that—or to this use of technology. As the Secretary of State knows, some very impressive pilot schemes have been conducted by Hertfordshire police in relation to satellite tagging.
There is, however, a feeling that we have been slow, perhaps unnecessarily slow, to ensure that such technology is made available to other police forces or is used more widely. That is partly because of the understandable caution that results from a determination to ensure that technology is used properly and that public safety remains paramount, but it is also partly because of the centralised nature of the system and the bias against innovation.
If we want a greater use of such technology, we must move towards a system that is more distributed, and in which local criminal justice innovation is encouraged. Through a more decentralised system, we have such opportunities. For instance, police and crime commissioners, who are keen to take on such a role, could supervise its use to ensure that there was some kind of local democratic accountability.
Guy Opperman
I entirely endorse my right hon. Friend’s point that localisation is surely the key to driving up the performance of the system and to improving it. Does he agree that the Ministry of Justice—we all acknowledge that this monolithic beast is exceptionally hard to tame and alter—could follow examples in other places, such as Norway, where there are community prisons and a much more localised approach to criminal justice reform?
Nick Herbert
I strongly agree with my hon. Friend. Having been a Minister in both the Home Office and the Ministry of Justice, I recognise that Ministers face the challenge of having an imperative to ensure public safety, and an imperative to drive value for money and ensure that contracts are written in such a way as to provide best value for the taxpayer. Nevertheless, there is an opportunity to decentralise and to be more open about the potential use of technology to innovate in the justice system.
The second lesson about the use of electronic tagging in criminal justice and the provision very sensibly set out in the Bill is that technology is not necessarily our enemy or the enemy of justice. In debates in this place and outside, technological advance is too often seen as some kind of enemy of justice and of the public. In fact, the advent of technology has been responsible for incredibly important strides in the delivery of a justice system that works for the public.
The same debates apply to electronic monitoring as apply to the use of CCTV, the development of the DNA database or other things raising civil liberties questions that must be addressed. For instance, how far is it appropriate to go in restricting the civil liberties of those to whom such sentences are handed down, even though they are convicted criminals? We must remember that they have been convicted, and that the alternative is a custodial sentence or, if they are not to be released, a continuing term in custody. Far from posing any kind of threat to civil liberties, such technology presents a real opportunity to protect the public. We should sometimes accept that the use of technology in the criminal justice system can be the public’s friend and can help to ensure that the interests of justice are served.
Keith Vaz
I agree about the use of technology, but, as the saga of G4S and Serco has demonstrated, in handing over contracts to private sector companies, sometimes we trust them too much. Those companies were overbilling the Government. We have to monitor such contracts, ensure that there are benchmarks and be very careful when we hand over public money.
Nick Herbert
As ever, I do not disagree with the right hon. Gentleman. That is an issue of accountability. We must ensure that contracts are written properly. The behaviour of some companies has been appalling and they should be held to account. There were also problems with the earlier trials of satellite tracking technology and there have been problems with use of simpler electronic monitoring. However, the technology can be made to work effectively and those who deliver the contracts can be held properly to account.
The potential benefits to public safety and, as we have heard, to criminals, who may find that they are no longer constantly approached by the police as a suspect in other investigations because it can quickly be established that they were nowhere near the scene of the crime, are too great to dismiss. We have an opportunity to introduce curfewing and semi-custodial sentences into our criminal justice system in a way that was not possible before. We can make the effective supervision of offenders outside a custodial environment a reality and we should embrace that.
I welcome the changes that the Justice Secretary is proposing to out-of-court disposals in the Bill. Many Government Members and observers of the criminal justice system have long been concerned that the growth of out-of-court disposals has led to problems. Her Majesty’s inspectorate of constabulary produced an important report on this matter a number of years ago, in which it identified the repeated use of certain out-of-court disposals and their inappropriate use for serious offences as a cause for concern. I commend the Justice Secretary for acting on that and making sensible changes to simple cautions in the Bill to ensure that they are not used inappropriately. Again, we can debate the nature of the proposals, but the direction of travel is exactly right.
The growth of administrative justice—for that is what it is—has a place. The previous Government described it as a programme of summary justice, but it is a programme of administrative justice whereby, without recourse to any kind of court, disposals are handed out on the spot. Although it has a place, we must ensure that it does not get out of hand.
As my hon. Friend the Member for Dartford (Gareth Johnson) mentioned, the use of administrative disposals peaked in 2007, driven by the unwise target to bring offences to justice. There was a famous case close to my constituency in which a police officer found a corpse hanging from a tree. In the pocket of the corpse was a penknife. The police officer attempted to record the offence of possession of an offensive weapon. It was very unlikely that the corpse would have used the knife in a dangerous manner. That was due to the target culture that drove the growth of administrative disposals. That culture has fallen away, but the proportion of disposals that are out-of-court disposals is still twice as high as it was a decade ago. That is not necessarily a bad thing, but it is important that such disposals are used appropriately.
David T. C. Davies (Monmouth) (Con)
Does my right hon. Friend agree that this is a problem of unforeseen consequences? One reason such disposals are used widely by the police is that it is so difficult and time consuming to put together the MG forms to bring a case to court. The temptation is always to dispose of a case out of court if it is at all possible.
Nick Herbert
My hon. Friend speaks from his experience as a special constable. What he says is certainly the case. One of the dangers of using the growth in administrative justice as a solution was that the previous Government took their eye off the important task of dealing with the bureaucracy in the criminal justice system as a whole and making it more efficient, so that cases that had to be brought before the courts could be brought before them swiftly and effectively. I therefore welcome the proposals to deal with the problem of simple cautions being used wrongly.
The growth in administrative justice should give us pause to reflect on the proper role today of the important institution that is the lay magistracy. I was struck by the comments of my hon. Friend the Member for Huntingdon (Mr Djanogly), who, when he was courts Minister, had the difficult responsibility of closing a number of under-utilised magistrates courts. There is no doubt that magistrates have faced challenges owing to a reduction in business, which was caused originally by the growth in administrative disposals and has been partly caused by the reduction in the level of crime and by cases being taken by professional district judges, rather than by traditional magistrates courts. All those factors have led to the magistracy feeling undervalued.
Although I welcome the proposals in clause 24 for single justice procedures, which are entirely commonsensical in respect of high-volume, uncontroversial cases in which there are guilty pleas, I believe we should think further about the right role for the magistracy in the operation of the summary justice system. That will be particularly important if the budgetary position with which the Ministry of Justice is confronted means that there have to be continuing court rationalisations. The development of new justice hubs and centres is not necessarily a bad thing. They can be fit for purpose and very useful, but they also mean that magistrates sit further from the communities from which they are drawn.
Guy Opperman
I speak as someone who battled my hon. Friend the Member for Huntingdon (Mr Djanogly) over the closure of Hexham magistrates court, even though I understood why it was being done and the difficult circumstances that existed. Does my right hon. Friend agree that, as we get centralised hubs of magistracy, we must ensure that there is a resident rural magistrate who understands that matters 50 miles away from the city are often greatly different from crimes that take place in the city itself?
Nick Herbert
My hon. Friend, who represents a very rural constituency, makes an interesting point that leads on to the suggestion that I want to make. I wonder whether there is a role for the magistracy outside the formal setting of the courts in respect of less controversial offences, so that we can retain the presence of magistrates in communities. As we move towards the use of justice hubs and as traditional courts are closed, we should consider that.
A similar proposal was made last week in an interesting paper, “Future Courts”, by the Policy Exchange think-tank. The paper picked up on proposals that were made in a Government paper that was published in 2012, “Swift and Sure Justice”, for which I had responsibility. We were very drawn to the way in which the criminal justice system had operated rapidly to deal with the offences that were committed during the riots of the previous year, and we started to question whether a leaner and more efficient justice system could be developed. I urge the Government to consider the potential of involving magistrates in a programme of neighbourhood justice. That would ensure that they are retained in their local communities.
Neighbourhood justice panels are an interesting development in the area of restorative justice. Many Members from all parts of the House believe that they have great potential in dealing with low-level offending. Only last month, the Lord Chief Justice expressed the view that magistrates should play a formal role in neighbourhood justice panels and that they should not be a separate tier of justice.
The magistracy is an institution that has been with us for six and a half centuries, and as the late Lord Bingham said, it is a “democratic jewel beyond price”. If we are moving towards greater use of technology, the potential for justice to be delivered remotely, and individuals not having to be in a formal court setting, we have the opportunity to ensure that justice can be delivered locally, without having to be delivered administratively. We can still have confidence that somebody appointed from the community who exercises a judicial—not administrative—function, is dealing with offenders. That is a potential way to rebuild the magistracy and tackle the growth of administrative justice and the excessive use of out-of-court disposals, and a powerful way to rekindle the notion of neighbourhood justice. I hope that the Government, who welcomed the Policy Exchange report as an interesting contribution, will take that on board.
In conclusion, as with so many other areas of public policy, the urge to centralise and rationalise into ever bigger units is great when it comes to delivering greater value for money. We see that in policing with those who urge us to create regional police forces, in health care with those who urge us to create ever greater units with larger hospitals and so on, and we face such pressures across our public services. Such rationalisations need not be a bad thing if innovative ways are found to deliver services at local level, and technology is an enabler of that. What undermines confidence in the process, however, is when a salami-slicing approach results merely in services being centralised for cost reasons, without any rethinking or redesigning of how they can be delivered at local level. Let us enable that innovation, localise, have confidence in the new democratic institutions we have created at local level that can hold the criminal justice system to account, and—above all—let us value the lay magistracy as an institution that has served this country so well over a long time.
Keith Vaz (Leicester East) (Lab)
It is a great pleasure to follow the right hon. Member for Arundel and South Downs (Nick Herbert) who served as a distinguished Minister in the Home Office and the Ministry of Justice. It is still a puzzle to me why he is not in the Government, because I know they could use his considerable skills. He obviously enjoys being on the Back Benches more, even though we miss his appearances before the Home Affairs Committee.
I was fascinated by the exchange between the hon. Members for Hexham (Guy Opperman) and for Huntingdon (Mr Djanogly), but the House did not get to know what happened at the end of those discussions, and whether Hexham magistrates court is still open. Did the hon. Member for Hexham win his battle? He is my next-door neighbour in Norman Shaw North, and I need to know whether he wins such battles with the Government.
Guy Opperman
Despite 20 years of advocacy and despite what I felt was a very strong case, my youthful appearance in this House, and a vigorous campaign, the fact that the magistracy was not able to survive in the rural town of Hexham for the first time in 500 years was sadly a fact in the end. To be fair, the right hon. Gentleman will be pleased to know that the system is working relatively well with an urban core, but the Ministry of Justice—which is, of course, not at all a bureaucratic or difficult organisation to get control of—should be aware that although it is working, we do need a rural element in the magistracy going forward.
Keith Vaz
I thank the hon. Gentleman for that long explanation. I am surprised that he lost the battle, but I know he will continue with it.
When I was the sole Justice Minister in the Ministry of Justice—then the Lord Chancellor’s Department—I felt that the work load was quite high. We now have four Commons Ministers representing the Ministry of Justice, and of course it has taken on new responsibilities. I congratulate the Minister of State, Ministry of Justice, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) on his appointment. I think this is his first Second Reading debate; I do not know whether he will be winding up—
The Minister of State, Ministry of Justice (Simon Hughes)
indicated dissent.
Keith Vaz
Then I admire his patience in sitting through the entire debate and I wish him well in his ministerial career. I am not sure whether, had he got to the Ministry of Justice before the Bill was signed off, he might have opposed some of these points.
I will start by raising a few concerns. I agree with the shadow Lord Chancellor that there are some good parts of the Bill, and I hope that we can make it better between now and it becoming law, should the House decide to support it. I have about five points to make, the first of which concerns judicial review. The previous Labour Government were embarrassed on a number of occasions when they lost judicial review challenges, and I believe it is extremely important that that remains an avenue of choice for those who feel that the justice system does not provide them with the kinds of solutions they need to their problems.
In particular, I am thinking about those who face difficult immigration cases, who have seen the right of appeal taken from them—not by the Ministry of Justice but by the Home Office—and who now face only the prospect of applications for judicial review to bring their cases to the attention of those who make such decisions. I agree that there are many frivolous cases, and many people go forward and make judicial review applications, sometimes for the sheer hell of it. It is right that citizens should use this power carefully, but once we take away the right of appeal in immigration cases, we leave people with no choice other than to apply for judicial review. That is why we have seen an increase in judicial review over the past few years.
David T. C. Davies
Have the Government had to consider this matter because with the encouragement of various—dare I say it?—left-wing non-governmental organisations, people who clearly had no right whatsoever to be in this country were able to put in one appeal after another and be legally funded all the way through? Is it not about time the taxpayer had a bit of representation as well?
Keith Vaz
The hon. Gentleman served on the Home Affairs Committee and therefore knows how the Home Office deals with such cases. If we were satisfied that decision making was robust and that entry clearance officers and those who reviewed their decisions always made the right decision, we would not need a right of appeal. As he knows, however, having sat through the Committee’s deliberations, 50% of appeals on immigration cases are won by the applicant. That does not mean that judges are cleverer than entry clearance officers, but it does mean that decisions have not been looked at carefully enough. If we take away that right of appeal, all people will have is the ability to challenge in the courts. Of course I do not believe it right for people to play the system and have multiple appeals, but if we take away the last vestige by which they can challenge decisions, we will leave them with absolutely no choice.
As I said, the previous Government suffered because they tried to stop citizens marrying foreign citizens in our courts. They were taken to court and judicially reviewed, and the court said, “You cannot do this”. Spouses had to go back and make applications, but the previous Government—as successive Governments have done—lost a number of such applications. I think we should look carefully at this issue. On its own it may not seem like a bad idea, but if we take away the right of appeal in immigration cases, as section 11 of the Immigration Bill does, that will create a number of problems. After all, 32% of deportation decisions and 49% of entry clearance applications were successfully appealed last year. We must look carefully at the issue.
Guy Opperman
I served on the Immigration Public Bill Committee and the overwhelming view was that, yes, the Home Office needs to get better—with respect, as the right hon. Gentleman will know, it is getting better at reviewing under the appellant procedures—but the fundamental point is that it cannot be right for there to be in excess of a dozen, and potentially up to 15 or 16, separate rights of appeal. The state, in the form of the Home Office and the Government, is right to review the number of times an appellant can go through the appellant process.
Keith Vaz
I have no objection to that. I agree with the hon. Member for Monmouth (David T. C. Davies) that we do not want multiple applications, but we should at least give people the chance of one application. It is not the case that they get legal aid right the way through. Many of my constituents come to me wanting to go to judicial review. I tell them that their best course of action is to leave the country and make an application from abroad. They will go through a better system and obtain a quicker result than they would by constantly staying here and going through the courts again and again.
Guy Opperman
With great respect, the implication of the last comment is that there is no right of appeal whatever in an immigration case. I am sure that that is not what the right hon. Gentleman meant to say.
Keith Vaz
The right of appeal will be taken away by clause 11 of the Immigration Bill. An application can, of course, be made in certain circumstances, but my understanding is that that Bill will reduce dramatically the occasions on which the Government can be judicially reviewed. We heard that from the Lord Chancellor earlier. He was quite delighted and thought it was a very good idea. I prefer that these decisions are taken by judges rather than by civil servants.
The hon. Gentleman has been a Parliamentary Private Secretary for the past four years, so of course he welcomes the improvements made by the Government. That period is too long and he too should be serving in the Government and I hope I have not damned his career by saying that. He has spent enough time dealing with civil servants. If he thought they were the most perfect creatures on this earth, we might as well hand over everything to them, let the officials decide and not give people the right to go to court. All I say is this: let us be cautious. The Government should look at this in the round and be sure that people have some avenues left to challenge decisions.
On new technology, I agree with the right hon. Member for Arundel and South Downs, the former Home Office Minister. When he was in the Home Office, he led the campaign for new technology. He is a Twitter person. On one occasion, he tweeted to ask me to go to the airport to meet him, as I had done with other members of the Select Committee—I agreed to do so, but he would not tell me his flight number—so I know that he likes new technology. The fact is that we need to be careful about allowing Ministers and officials to make decisions on new technology that they do not understand. He will remember the e-Borders project, which has so far cost the taxpayer £750 million. It was agreed without benchmarks and the litigation is still going on—it is still costing the taxpayer huge amounts of money. We should have new technology and we should pursue this programme, but we need to be very careful and very cautious not to hand everything over to those who come to us and say that they know everything. That is what happened under the previous Government in relation to G4S and Serco, and that has continued under this Government. As we now know, G4S overcharged the Government by £24.1 million. We will need a more extensive use of tagging, but if the tagging companies are not monitored, the contracts will not be properly dealt with and properly monitored. I hope that, in making better use of technology, we ensure that we have the accountability that the right hon. Gentleman and I have been talking about.
On the creation of a secure college, my worry is that we need to be very clear on what powers those who run the college will have. It sounds like a very good idea and we want to make sure that people spend more time in training. However, of the 16 deaths of children in custody since 2000, all occurred in youth offenders institutions and secure training centres. We need to learn the lessons of the deaths of those young people before we set up new institutions that are not capable of proper scrutiny. The Bill will allow a secure college custody officer to use reasonable force to ensure good order and discipline. It is important that we look at training and do not have any unfortunate incidents that result in the death or injury to young people in custody.
Drugs are a big problem, as we have discovered in Home Affairs Committee inquiries. Many young offenders acquire a drug habit when they are in institutions. I will give another plug to the book, which I have on my desk, by the hon. Member for Hexham. I am sure that all Ministers in the Ministry of Justice have read it. I am sure that the new Minister will have had in his briefing a copy of the book on rehabilitation written by the hon. Member for Hexham. If he has not read it, I will make sure that he gets a copy, because the hon. Gentleman is my next-door neighbour. There is very sensible stuff in the book, including the fact that people pick up the habit of taking drugs when they are in prison. That is why we believe there should be mandatory testing.
Guy Opperman
The book, “Doing Time” is actually still available. Amazingly, there are a few copies left. I hasten to add, Madam Deputy Speaker, that all proceeds go to charity.
The serious point is this: the right hon. Gentleman, who served in the previous Government with the right hon. Member for Delyn (Mr Hanson), will recall that in 2008, when he was the police and justice Minister, he was asked a specific question. I cannot, off the top of my head, quote Hansard, but he indicated that evidence from the Home Office and the Ministry of Justice showed that 20% of all people who took drugs in prison acquired the habit for the first time in prison.
Keith Vaz
That is a stunning figure, one that has probably remained the same, or even increased, in the past few years. That is why we suggest there should be mandatory testing in prison and after people leave prison. The Under-Secretary of State for Justice, the hon. Member for Kenilworth and Southam (Jeremy Wright) does not like that idea. Whenever I raise it at Justice questions, he is never enthusiastic about it and thinks his system is better, but such testing would be a good thing.
I hope the new secure college will run sufficient courses. We will not write the curriculum right now, but let us ensure that as well as providing the basic education for young people that they so desperately need—another theme in the book by the hon. Member for Hexham—we teach them the dangers of drugs and try to get them off drugs.
I am a little concerned about the punitive elements in paragraph 2 of schedule 15, amending the Criminal Justice Act 2003. The figures show that 72% of male and 70% female sentenced prisoners suffer from two or more related mental health disorders. It may not be appropriate for them to be punished in a similar way to others. We must try to identify those who have a mental illness and end up in the criminal justice system and remain in it for years. In September, the Select Committee will undertake an inquiry into how the police deal—I say to the Chair of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), that we are not treading on his toes—with offenders with mental health disorders and see how that feeds into the rest of the criminal justice system. The figures are very worrying. We want to be tough and to punish people, but we need to remember that there are reasons why we perhaps should not send people to prison.
The Director of Public Prosecutions announced this morning that she would deploy six specialist lawyers abroad—in Dubai and in one or two other places—in an attempt to seize more assets from criminals linked to British cases. I welcome that announcement, because I think that we need to strengthen the way in which we investigate and then charge those who move their assets abroad. According to the National Audit Office, 80% of the £920 million owed by convicted millionaire criminals is yet to be repaid. My mathematics is not perfect, but I think that 80% of £920 million is nearly £850 million. Is that right, Madam Deputy Speaker? You seem to think that it is about right; you have probably been helping your son with his maths. Anyway, it is a huge amount of money.
We try to challenge the Mr Bigs, and the Mrs Bigs. They go through the criminal justice system, we fine them huge amounts of money, and then we find that about £150 million less than £1 billion has still not been collected. The Bill does not deal with that situation. I hope that, if it believes in joined-up government, the Ministry of Justice will look carefully at the DPP’s statement, and that amendments will be tabled in Committee to ensure that when judges fine billionaires and multi-millionaires, those people pay up. At present they simply go through the system, come out of prison and then disappear, and we suffer because our justice system has allowed them to get away with it.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
I am very pleased to follow my fellow Select Committee Chairman, whose wise and thoughtful comments have, I think, raised the level of the debate to where the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) wanted it to be. I am not sure that the mental arithmetic of the right hon. Member for Leicester East (Keith Vaz) is quite up to scratch, but I am sure that he can improve on it with a little practice.
The Bill contains many provisions, covering matters ranging from misconduct by jurors to automatic release, and I have no intention of commenting on all of them. However, I will make one passing comment on the issue of trial “on the papers”, which strikes me as a perfectly sensible way of dealing with summary offences of a minor character involving guilty pleas when the defendant was not going to be present anyway. It is important for the public record to be clear and immediately accessible, and I hope that we can find a way of ensuring that that happens. There should be no secret justice; it should be readily apparent what sentences have been handed out by the courts, and to whom.
I want to concentrate on three issues. The first is the issue of the simple police caution, along with the wider issue of out-of-court disposals of which it is part. The Government’s consultation on out-of-court disposals ended in January, and I should be interested to know when they will respond to it. I think that the magistrates were right to be concerned about the dangers of inconsistency around the country, and about the fact that people did not really know what was happening. However, I also think that there is real value in police officers’ ability to exercise discretion in many circumstances, and that out-of-court disposals, as a broad group, open up numerous possibilities, including possibilities for simple restorative justice.
Restorative justice exists in many forms. Obviously it exists in post-sentence form, but there are simple kinds of restorative justice which I have experienced in my constituency. In the past, a police sergeant would say to an offender “The best thing that you can do is go to the person whose property you have damaged, give that person money to pay for the damage that you have caused, apologise, and ask whether there is any way in which you can help to make good what you have done.” Such measures are worth developing as part of neighbourhood justice.
I do not want the necessary codifying of the system of cautions to be seen as in any way discouraging the use of alternatives to traditional court procedures. As was suggested earlier, magistrates can be involved in the process. The Justice Committee visited Stockport recently, and observed that magistrates had been involved in a number of developments in the Greater Manchester probation area. When I asked why they were not hostile to those developments, the answer was that they had been involved from the start. I do not want us in any way to undermine the scope for out-of-traditional-court disposals in matters of this kind, because they may offer the best opportunity to enable young people, in particular, to move away from crime rather than becoming institutionalised into it.
The Union flag that flies outside my constituency office on the Queen’s birthday and other state occasions was once torn down by some people who then rather unwisely boasted about having done so, and were therefore quickly picked up by the police. The friendly sergeant instructed them to put together the money necessary to replace the flag and to write a letter of apology, which they all did. At least one of them was planning to go into the Army, and the sergeant pointed out that that person would not want to start off with a criminal record. It was a very sensible way of dealing with the matter.
The second issue that I want to raise is that of secure colleges. I do not think that there is any disagreement with the Government’s objective in that regard. A clear indicator of the likelihood of reoffending is a lack of basic education and skills. The evidence for that is overwhelming, and I think that the Government are right to focus attention—and, indeed, resources—on the provision of basic education for young people who have been caught up in the criminal justice system.
Sir Alan Beith
I will, although I want to raise a number of points that the hon. Gentleman may wish to follow.
Guy Opperman
May I compliment the right hon. Gentleman on what he has said so far? Does he agree that there is potential for secure colleges to be run not just by the state, but by individual institutions, churches or charities? Academies have transformed education, and there is surely no reason why academy-style secure colleges could not be established in the longer term.
Sir Alan Beith
That sounds like an attractive idea. However, there are some problems to which I do not yet see a solution, although I agree with my neighbour from Hexham that plenty of people in both the charity sector and the private sector have something to contribute to the process.
The first problem, which was identified by my Committee, is that the average length of custody is 79 days. That is not a period in which a programme of education can be developed, and greatly extending periods of custody is not part of the Government’s policy. Secondly, people going into custody do not do so neatly at the beginning of a term or an academic year; they go when the courts have sentenced them. It is difficult to provide a range of basic educational courses for people who go into custody for relatively short periods and at different times, and it involves paying a price. Some of those people will be much further away from their local communities than they would have been if they had been dealt with under the previous system, especially if the college has been created at the expense of, for example, secure children’s homes. I should be very concerned if those ceased to be available because a college was being opened in a much more distant place.
I think that the Government have quite a bit more thinking to do about how they can realise their very desirable objective of providing basic education by means of some kind of secure college framework. It would be wrong to assume that it is possible simply to set up a large institution in one part of the country, and that people who are in custody for relatively short periods in a constant turnover will fit neatly into a programme of education. The objective is right, but the means have yet to be fully explained.
The “reasonable force” argument was mentioned earlier. I had a word with the Minister about that. I think that there may be some confusion about it. It needs to be made clear that there will be no breach of article 3 of the European convention on human rights in secure colleges, and that reasonable force is used for the purpose for which it is provided—that is, for the safety of those in custody or of those around them, including those who are superintending the education for the purpose of which they have been placed in a secure college. There needs to be a safe environment.
By way of offering the Government a warning of the difficulties involved, I shall quote what the chief inspector of prisons, Nick Hardwick, said in his oral evidence to the Select Committee. He pointed out that the youth custody population is not what it was two or three years ago, for the obvious reason that it is much smaller. That means that we now have the more intractable and difficult cases in youth custody, to which we are trying to apply this new system. He said that
“the nature of the juvenile population you now have in custody is different from what it was a year or two ago. The Government need to take that into account…What you now have is a higher concentration of the most troubled, most at-risk and most risky young people, concentrated in a very small number of establishments…You have to make sure that your future accommodation arrangements can guarantee the safety”
of those young people. He went on:
“It is not simply about the number of teachers you have; it is about whether you have the staff to get young people safely from their unit to the classroom, without trouble occurring en route, and to make sure that the teaching environment is safe and secure.”
Those are big challenges for the programme that the Government have set out.
My third topic is judicial review. The Public Bill Committee will need to look closely at the proposed change in the threshold for exclusion of judicial review from it being “inevitable” to being “highly likely” that the successful challenge would not change the outcome. There could be a risk of the argument becoming about the substance of the case, rather than about process. Judicial review is supposed to be about process. It is not an appeal mechanism in which the decision is considered by an alternative decision maker; it is a review of the process that has been carried out. However, if an argument had to take place about just how likely it was that the success of the review would make no difference, that would involve going quite deeply into the substance of the matter. The wording of that proposal will therefore have to be looked at carefully.
More generally, judicial review is inconvenient for the Executive. It is a nuisance, and the initials “JR” strike fear into the hearts of Ministers and, even more, of the civil servants who are always reminding Ministers about judicial review. However, it is a discipline by which we ensure that proper process is followed. It would be unsatisfactory to strip away that discipline completely and to say, “It doesn’t matter if you get the process wrong, as long as you make sure it’s not likely to affect the outcome.” The wording of this proposal also needs to be looked at, as do some of the cost attribution issues that have been raised today.
There is a problem when judicial review is used to try to delay a case sufficiently for the window of opportunity for something to happen to be closed, but such cases are few and far between. If we leave aside immigration cases, the increased use of judicial review is nothing like as big a problem as it was thought to be. The increase was identified as being primarily a result of immigration cases. I hope that the Bill Committee will look carefully at the wording of those measures. We must recognise that we need to maintain the discipline and that, if the law requires us to go through certain processes, we must go through them. If we do not, we run the risk of bringing trouble into court. I am referring not only to the Government in this context; this applies also to a wide range of local authorities and major infrastructure industries.
It would be wrong for me to conclude without referring to a point that has been underlying much of the debate—namely, that these are aspects of the criminal justice system whose primary purposes will be addressed only if we achieve further long-term reform. I see that reform as involving primarily what my Committee has called justice reinvestment—that is, taking resources away from the damaged end of the system and putting them into the beginning, so that victims do not become victims in the first place because crimes do not happen. We must ensure that we direct the resources to the appropriate areas, just as the Government have sought to do in the transforming families programme, so that they prevent crimes from happening in the first place. We need to create a virtuous circle in which we do not need so many prison places because fewer crimes are happening. We had an opportunity to do that, and crime levels have been falling, but that opportunity has unfortunately been compromised by the difficult financial situation in which the Government have found themselves. That means that it has been much harder to prime the pump, or to put in extra resources.
That brings us right back to the ultimate purpose of justice reinvestment, which is to move resources. In order to do that properly, we need to address a matter that the hon. Member for Hexham (Guy Opperman) mentioned earlier—that is, something that the Select Committee calls local commissioning. In such a system, the decisions about the resources needed to deal with crime are made by all the agencies that have to handle crime at local level. Many of those decisions are now made locally, which is a good thing, but one crucial one is not: the decision on how much money is spent on prisons and where that money is put. That is still very much a national decision and it will remain so under the Government’s present policy.
I believe that we will achieve more in crime prevention when we have a rational allocation of resources at local level by all the organisations involved. They include the police, the courts, the magistracy and the judiciary, as well as the youth offending teams and all those in the voluntary sector who are becoming involved in these processes. Quite a lot of good practice has developed—in youth offending teams, for example—and the lessons from that need to be learned throughout the criminal justice system as a whole.
Karl Turner (Kingston upon Hull East) (Lab)
It is a privilege to follow the Chairman of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). As a former member of his Committee, I know that he always speaks with great knowledge and is very considered in his views. I agree with much of what he has said today.
The Bill is a wasted opportunity. It makes no mention of victims, of probation, of legal aid, of women in the justice system or of ethnic minorities. The Government have missed an opportunity, especially in relation to important issues like the huge changes to criminal legal aid that the Lord Chancellor is about to announce. We await that announcement with bated breath; he has been promising the legal profession that he would make it, but we are still waiting. The Bill could have considered those huge changes to legal aid. The entire legal profession is completely against the Lord Chancellor’s views and the Government’s proposals. On 7 March, criminal solicitors and barristers will be taking a day of industrial action. I think that the solicitors are describing it as a training day, in order to get round certain issues. The Government could have used the Bill to debate those important changes properly.
I do not disagree with everything in the Bill. In fact, I agree with a lot of it—including, for example, the restrictions on the use of cautions. I have expressed my concerns and complained about the use of cautions, along with other Members on both sides of the House.
Keith Vaz
I should like to praise my hon. Friend. He served briefly on the Home Affairs Committee after he served on the Justice Committee—has he served on every Committee in the House?—and he asked for an inquiry into this matter and we were going to have one. I congratulate him on his long campaign to make this a subject worthy of discussion.
Karl Turner
I am grateful to my right hon. Friend for making those remarks. He rightly said that I raised the issue when I was briefly a member of his Committee, and I wrote to him formally after I had left the Committee to ask for an inquiry, which he kindly agreed to have. This issue has been a problem for a relatively long time. Government Members said that it has become a particular problem since 2007, and that is probably right, but in my experience, from my constituency, it has increased dramatically since 2010. That is a point of debate and hon. Members may wish to disagree with me on it, but I am glad that the Government have finally accepted that this is a definite issue and that they are going to deal with cautions for indictable-only offences and for repeat offenders.
I have some concerns about single magistrates sitting for summary only, non-imprisonable offences. If someone pleads guilty by post for a road traffic offence, I have no problem with their being dealt with by a single magistrate. However, the Bill does not state that this approach will be confined just to road traffic offences, and I have concerns about that. Justice must be done and be seen to be done, and this approach also completely undermines the notion of collective decision making.
Let me now deal with the sentencing provisions. I was a criminal law practitioner before I was elected to this House, and I am on record as saying that I was never a fan of indeterminate sentences for public protection. However, the provisions in the Bill are undoubtedly a knee-jerk reaction by this Lord Chancellor to the fact that his extended sentences in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 simply have not worked—the Government are reacting to that.
I do not wish to speak for too long on my next issue, as other Members have made the point well, but part 4 of the Bill is of particular concern to me because it seems to undermine the possibility of challenging Executive decisions in a judicial review. The Lord Chancellor is on the record, commenting to his favourite newspaper, the Daily Mail, describing judicial review as
“a promotional tool for countless Left-wing campaigners”.
With respect, that type of comment could be made only by this Lord Chancellor, who simply does not appreciate the importance of the rule of law.
Kate Green
Does my hon. Friend agree that the Lord Chancellor is completely missing the point, as the majority of judicial review cases involve individuals—disabled people, people with learning difficulties, children and other vulnerable people—who are having to challenge inappropriate state decisions, in a situation where there is huge inequality of bargaining power? Portraying judicial review as being about campaign groups prosecuting an agenda is simply a misrepresentation of what it is predominantly about.
Karl Turner
My hon. Friend made the point better than I was about to and has hit the nail entirely on the head. This measure is populist stuff; it is the Lord Chancellor trying to be popular. Judicial review is not the only thing he attacks—he attacks human rights. As a lawyer, I find it frustrating to listen to him when he debates in this House because he seems not to understand the relationship between the European convention on human rights and the Human Rights Act 1998: he confuses the two. He is attacking the system. He has attacked human rights, judicial review, legal aid and no win, no fee arrangements. He has attacked any opportunity for people to challenge the Government or organisations the Lord Chancellor seems not to be terribly impressed by.
My main concern is clause 50, which seeks to change the threshold for bringing judicial review. People who bring reviews often have legitimate claims; these reviews are not some spurious attempt to challenge the Government, and these people often have lawyers advising them. Solicitors and members of the Bar will discuss the possibility of success in these cases and will give advice. I respectfully submit that judges do not just let spurious cases go through, so I think the Lord Chancellor could do with a lesson in the entire system.
I know that other Members wish to speak, Madam Deputy Speaker, so I will leave it there.
Simon Reevell (Dewsbury) (Con)
It is a pleasure to follow the hon. Member for Kingston upon Hull East (Karl Turner). I declare an interest, in that I still practise at the Bar, so to a certain extent I comment on this Bill as someone who may have to make its provisions actually work. In that context, I think the Bill contains some very positive measures, especially on sentencing and cautions.
I had not appreciated that the entire Labour party was against the policy of cautioning that it introduced or that one consequence of the general election of 2010 was that the use of cautioning suddenly escalated. I had understood that this policy was introduced and promoted by the previous Government, and that it has been absolutely corrosive to the criminal justice system. It has undermined the public’s confidence in the police, who are perceived to use cautioning as an easy solution; and it has caused problems in the criminal justice system, where co-accused are separated, with one being cautioned and the other being prosecuted. I am glad that this Government are doing what they can to start to turn around that ship, but let us not forget who launched it and pushed it on its course.
Karl Turner
The hon. Gentleman speaks on these issues with real knowledge as a member of the Bar—he is a member of my old circuit, so I know him well. Does he not accept that when budgets are constrained and the police have had something like a 30% cut to their budget, there is a temptation for them just to go for a caution without a referral to the Crown Prosecution Service for advice on charging? Is that not possible?
Simon Reevell
My recollection is that the hon. Gentleman was a member of my circuit, but I will have a think about that. Cautioning has been utterly corrosive, and even when people have been prosecuted the sentencing procedures that have been put in place have been difficult for lawyers, and impossible for non-lawyers, to understand. The point has been well made that the idea of someone serving no more than half a sentence is difficult for people to take on board, but when somebody reappears after a few days or a few weeks the public simply cannot comprehend it. A good start is linking the release of serious offenders to the scrutiny of the Parole Board. It is an important link and I am glad that it is being reintroduced. I say “reintroduced” because it worked very well in the 1990s, but since then we have had indeterminate sentences for public protection, and judging by some of the comments today it is clear that the party that introduced them still does not understand the problems they caused.
The Bill has the advantage of introducing a system that imposes a period of imprisonment that will be served unless, after a substantial time, the Parole Board approves early release. The Bill retains the incentive for the prisoner and provides a valuable safeguard for the rest of us—that is a good piece of legislation. What a pity that we had to have those years of messing around with alternatives before going back to something that worked well in the 1990s.
When someone is released, is it wrong to use technology to monitor them? I understand that some people will be uncomfortable with the idea of tracking humans with a global positioning system, but is it any different from putting a tag on someone and using different technology to monitor whether or not they enter or leave a building? Surely when people are precluded by court order from going to certain locations, there is nothing wrong in monitoring that with technology. There is always a line with technology that we should not cross, but this Bill falls far short of it.
If someone on licence breaches the terms of that licence and will do so again, why should they not have to serve the remainder of their sentence? Most people probably assume that that is what happens anyway, and would be surprised to learn that the system provided for anything else. People have the licence terms explained to them: if they breach the licence and it looks as though they will do it again, they should serve their sentence, and there cannot be anything wrong with that.
One aspect of the Bill that has received media attention relates to proceedings for judicial review. Is it really controversial that those who wish to be involved in someone else’s case may have to pay towards the cost of those proceedings? Those who appear as interveners are free to provide their assistance, knowledge and experience to any party in any case, but if they want to appear themselves, why should it be assumed that one of the parties will automatically pick up their costs or that they will have no responsibility for the costs that they incur on behalf of others? They are free to pass on their expertise and knowledge, but if they want to take part in the litigation, some responsibility may come with that.
Kate Green
The hon. Gentleman’s point sounds reasonable, but the reality is that one of the parties is the state, with all the resources and the power that the state can bring to bear, and the other parties are simply not in the same position. They are trying to challenge an exercise of state power in a situation where there is a gross inequality of bargaining power. At times, that means that positions and points that are important for public policy will not otherwise be considered. That would be a price worth paying if it actually meant that public policy was improved.
Simon Reevell
I do not disagree, and that is why the Bill provides for circumstances in which that can happen. However, in a large number of cases, expertise can be provided without intervention and representation being needed. As an aside, organisations that oppose this measure and that frequently appear as interveners should make it clear in their lobbying that they stand to be affected by the changes that they oppose.
The leapfrogging provisions of judicial review are not controversial and are a good idea. Only last week, the Supreme Court exerted its authority. As confidence grows that it will be, as it should be, the final court in this jurisdiction and that that is where issues will ultimately be determined, why incur cost and delay calling in at the Court of Appeal if a matter will automatically be referred to the Supreme Court?
Is it really controversial to suggest that a case that offers the prospect of nothing more than a pyrrhic victory should not take up days of court time? I find the opposition to clause 50 surprising. It seems to come from the left, yet the argument that has been advanced recently in the High Court, especially in relation to ballots by trade unions on industrial activity, is that if we have thousands of members and we only have the addresses wrong for half a dozen or so, why should we rerun the ballot when it will not affect the outcome? Is that not precisely the sort of point that should be dealt with at a preliminary hearing? If it is quite clear that there was no mischief in the error and that changing the error would not affect the outcome, is there any need for full judicial review proceedings? Something that is argued on behalf of the trade unions as perfectly sensible in the High Court seems, when it appears in a Government Bill, to be worthy only of criticism from the Opposition Benches.
For all the focus on judicial review, I agree with the hon. Member for Kingston upon Hull East (Karl Turner) and others that the clause on which people should reflect concerns the magistrates court, which deals with 95% of all criminal cases. Clause 50 creates a system for trial, not for guilty plea, so the idea of guilty plea by post is not what the clause is about. It creates a system for trial, the determination of proceedings that are not admitted. These proceedings could involve criminal damage, assault and public order. They are not matters that will attract sentences of custody, but they could have implications that affect people’s livelihoods. They could be determined behind closed doors, and in a process that involves nobody who has any legal qualification whatever. It could be a single lay magistrate in a private room with papers provided by a police officer. I hope the Government will reflect on that.
One solution is to have at least two if not three magistrates. Another is to say that if it is a single justice, they should be a district judge. The idea that a file can be submitted, that there is no intervention from a prosecutor and that a lay justice in private can decide whether someone has committed a criminal offence is quite a significant step. It may well be that some of these people have not bothered to reply or that some know they are guilty, but there is some significance to that step and it is something on which we should reflect.
The Bill also makes provision in relation to wasted cost. I will tease the Minister a little by reminding him that there is one party to criminal proceedings that often causes trials to be adjourned owing to lack of court time or lack of jurors, and there are no cost implications for them, and that is of course the Court Service.
It is impossible to speak in a debate on criminal justice and courts without making mention of the current problems over proposals regarding remuneration. My recollection is that it was the previous Labour Government who first saw industrial action by the Bar. It was in relation to remuneration for very high cost cases and proceeds of crime cases some six or seven years ago. My view now is the same as it was then. I know as well as anyone the talents and strengths of those who practise at the independent Bar, but there must be a balance between those who practise in the courts and those whom the courts are there to serve. Pursuit of remuneration should never tip the balance away from timely remedy for those seeking justice, whether it is because they are complainants or victims or because they are awaiting trial.
Finally, those who would never reverse these proposals if ever the opportunity arose should be slow in hinting that they might.
Gareth Johnson (Dartford) (Con)
It is a pleasure to follow my hon. Friend the Member for Dewsbury (Simon Reevell), who brings a great deal of expertise in this area. He and the hon. Member for Kingston upon Hull East (Karl Turner) made a number of pertinent points about the administrative proposals for judicial process that are introduced by this Bill. They raised their concerns over the idea of single justices dealing with some of these administrative processes. As someone who was once a magistrates legal adviser and read out some of the mitigation statements and dealt with some of the TV licence courts for hours on end, I can say that having a single justice can be very effective. A single justice is capable right now of making a bail decision on someone charged with a very serious offence such as murder. A single justice of the peace can decide on that. They can adjourn matters and send them to the Crown court. I am not aware of that causing any particular difficulties. The proposal that we have a single justice looking at these measures is far less of a power than some of the powers that they currently have. I hope that some of the fears that have been raised today can be allayed with that information.
I welcome the opportunity to contribute to the debate. The Bill covers a wide range of areas—I will concentrate on just a few of them—because it has always been necessary for the criminal law to keep up with society and evolve to meet the modern challenges and changes in behaviour that we all see. The Bill will help to ensure that that continues. For example, it will use developments in modern technology to track offenders more accurately and therefore far more reliably.
It must be a welcome development to ensure that offenders contribute more to the cost of their cases when they are convicted of a criminal offence. That just makes plain sense. We have always had a system of cost payments on conviction, with the legal test that those cost awards should be just and reasonable. These measures, however, take that situation further by matching the total cost incurred by the taxpayer. A crucial aspect of the Bill is the awarding of costs to be picked up by the wrongdoer. In other words, the Bill will ensure that the polluter pays and that the polluter pays for all his pollution. I have long felt that we have had something of an anomaly in the system, where the costs created by an offender and incurred by the victim can be reimbursed, quite rightly, and the costs incurred by the prosecution can also be reimbursed, quite rightly, but the costs incurred by the court cannot. That places expense on the taxpayer that has been incurred owing to the offender’s actions or inactions, yet nothing has ever been done to tackle this anomaly. Therefore, I am pleased that this situation will be rectified.
I am also pleased that the Bill seeks to formalise the cautions system. Cautions can be effective when used in appropriate cases, but they must command public support. That support can be lacking if people feel that offenders are receiving cautions for offences that are too serious or for repeat offending. Clearly, if a first caution has not prevented reoffending, there is little hope that a second caution will achieve that objective. There will always be exceptional circumstances where they should apply, but the Bill correctly recognises that situation. Generally, we should not allow cautions to be given where the public would see that as a betrayal of justice and basic fair play.
Successive Governments have sought to try to tackle reoffending rates. This Government have sought to do so by assisting short-term prisoners. Previous Governments have tried to work out other ways to reduce reoffending rates. To the credit of cautions, when they are given at their best, they have the most successful rates of tacking reoffending. Reoffending rates are lowest when cautions are given in appropriate cases. The criminal justice system should ensure that they are given only for minor, isolated offending.
The same concerns that people have about cautions are also held about penalty notices for disorder—or the so-called fixed penalty notices—that are issued at the police station. If they are given in inappropriate cases, people also rightly feel let down. It is therefore essential that the issuing of PNDs is not used to get around the intentions of the Bill. If it is inappropriate to give a caution—for example, owing to the serious nature of the offence that the police are dealing with—it should also be inappropriate to give a fixed penalty notice, and that person should be put before a court instead of being given a PND.
I have alluded to 2007 because that was the year when we saw the highest number of not just PNDs but cautions given at a police station. I saw back in that year that, in my constituency, repeat shoplifters were given PNDs again and again, when that was clearly as inappropriate as giving cautions again and again. If an out-of-court disposal has shown itself to be ineffective, we need to have court actions.
The Bill effectively places into legislation the guidance that is already given to the police on the issuing of cautions. It does not, however, include the necessity to consult the victim wherever, as the current guideline stipulates, it is appropriate and possible. I hope therefore that the Minister will agree that the victim’s views will continue to be an important factor when the police or the Director of Public Prosecutions decides to offer a caution, so that the victim’s views are canvassed before that caution is administered at the police station.
I also welcome the moves to place education at the heart of the youth offending process. Youth offender institutions have the ability to show children and young adults in their establishments what can be achieved through education. Giving young people the confidence that can come with education is vital if we are to maximise the potential to reduce reoffending. It gives young offenders the confidence that they very often lack. These measures have been criticised, but secure colleges simply make common sense. It must be right to educate young people when they are in prison, to help to tackle the very high reoffending rates that we are seeing among those inmates when they leave young offenders institutions. The programme of secure colleges will take time to roll out, but they can complement, not simply replace, the efforts that are in place to challenge offending behaviour.
In conclusion, I would simply say that there are clearly measures in the Bill that we can all welcome. Despite what we have heard, it is some time since we have seen a criminal justice Bill taken through the House. The Bill will help to bring up to date some of the laws that were falling behind and close the gaps that offenders have taken advantage of, so I hope that it will be unopposed today and that it will go through to the next stage of proceedings.
John McDonnell (Hayes and Harlington) (Lab)
I doubt whether the Bill will be opposed today, but I hope that there will be time to consider amendments that might improve it at a later stage. I apologise, Madam Deputy Speaker, for coming so late to the debate. I heard the opening speeches and then had to chair a meeting elsewhere, but I will be brief.
I want to make three simple points. With regard to secure colleges, sometimes if we stand still long enough, things come round again. They will smack very much of the old approved schools if we are not careful. The proposed £85 million project seems to involve a 320-bed institution. All the evidence in recent years has demonstrated that tackling young offenders and rehabilitating youngsters to ensure that they do not offend in the future is better done in smaller units, rather than large ones. That is why we moved away from the old approved schools, so that more intensive work could be done with young offenders and young potential offenders in smaller units. The proposal flies in the face of all that evidence and seems to take us back, rather than forward. However, if the Government are to experiment in this way, it is important that at least some provision remains in smaller units, particularly for those young people who are vulnerable. We have had briefings from the Children’s Rights Alliance and others, and they have interpreted the Government’s commitment to maintain small secure children’s homes as somewhat ambiguous. It would be useful to hear from the Minister tonight about what the future is for small secure children’s homes under the proposed new structure. The vulnerable youngsters who are cared for in those units would be lost within the bigger establishments proposed by the Government today. There would be anxiety if we were to lose that element of specialism in the system in the future.
The second issue relates to the proposal for magistrates to sit alone when taking decisions. I read the Magistrates Association briefing, and I share some of its concerns that there is a need to ensure that justice is seen to be done. Removing cases from the courts into a side room in a police station or elsewhere with a magistrate sitting solely with a clerk may not be as open and transparent as in the past. I would welcome hearing the Government’s view on the magistrates’ recommendation about at least ensuring that lists of cases are published. Perhaps that should be incorporated into the Bill, so that we can give the assurance that openness and transparency will continue for two reasons: first, it is important that people know that justice is being done and that it is visible; and secondly, some people want to know that the perpetrators have been prosecuted appropriately and have received the appropriate sentences. Therefore, listing cases would at least maintain an element of openness and transparency in the system. I hope that the Government can take on board the Magistrates Association recommendation and build it into the Bill.
The third issue, which I am anxious about, is judicial review. In my own experience, judicial review has largely been used by an individual or small organisation to challenge decisions by state bodies; in my own area, those have largely been decisions made by local councils. At the moment, judicial review is incredibly hard to undertake, largely because of the costs involved. It takes about £10,000 to £15,000 just to get into court in any form to have a judicial review heard, which is beyond the means of most individual and many organisations, but at least there is the opportunity to challenge a decision.
In my area, a judicial review took place recently when the local authority closed down special needs centres, or undertook the exercise of closing them down. That decision was challenged by the parents of the centres’ clients. They won at judicial review, forcing the local authority to reconsider its decision and to consult properly. That is the appropriate mechanism for judicial review. The Government’s current proposals will bear heavily on those individuals or organisations that are challenging decisions by bodies such as local councils.
I refer back to the debates that we had during the passage of the Local Audit and Accountability Act 2014, when evidence was brought forward by Transparency International about the problems with local government decision making: its closed nature and the use of commercial interests to drive decisions into part 2 of the cabinet decision-making processes. In other words, it revealed the secretive nature of decision making by some local authorities. Again, judicial review becomes the last resort for many organisations and individuals—certainly in my community—to try to get some form of appropriate and reasonable decision making, or at least some form of supervision of that decision making by the courts themselves.
I fear that these proposals will restrict the opportunity of the most vulnerable in our society to hold the powerful to account. I welcome the Government’s reassurances that there will perhaps be an opportunity to consider some amendments to the current proposals, which would allow the current process to be maintained and improved.
The Government have included a commitment to cost orders within the process itself. I agree that we should try to ensure a limit on costs overall. The problem is that the cost orders come too late in the process, The decision-making process will be more at the permissive stage, so a lot more work will be required of representatives before a cost order can even be applied for, which would provide protection from the heavy burden of costs during the process.
I would like the Government to look again at where the cost orders can be implemented. Under the Government’s proposals, just to get to the permissive stage an individual will either have to fund a considerable amount of work or it will have to be done at risk by an individual lawyer, before there is even a discussion about the cost order and cost-sharing.
This is largely about individuals fighting institutions that are well-resourced. Again, I will give an example from my own area. Many times, individual councillors have been protected by the council’s insurance against any legal action that is taken about their own decision making. So the individual is at risk, but the individual councillor or the council body is protected, bizarrely using—most probably—part of that individual’s council tax payment to enable that protection to be given. The problem in these proposals is that the cost burden, or the cost deterrent, will fall more greatly on the individuals concerned. I would welcome the Government considering, perhaps during the progress of this Bill, a more effective way of ensuring that the cost burden is limited—overall, of course, but also as it falls on the individual concerned.
The issue of interveners was referred to earlier. Every time I have been involved in a judicial review process in my area, interveners have played an invaluable role in bringing their expertise to the table and to the discussions within court itself. I would be wary of restricting the ability of specialist organisations to intervene in a particular case. I could give example after example of what is happening with my own local authority not only of individual housing cases but of individual health cases, where interveners have helped by bringing their health expertise to a case, because it then merits a wider debate about a particular aspect of that case that has a wider public interest.
I am glad that the environmental issues have been separated from this process—largely as a result of European conventions, I see—because in my own area judicial review has been one of the mechanisms by which we have at least been able to seek to protect ourselves against adverse planning decisions that have had an environmental impact on my community. That may well be an issue that we will want to come back to when we debate the proposals for a third runway at Heathrow, because we will be looking for a judicial review of the Government’s decisions at every possible opportunity if they wish to proceed with those proposals. Therefore, it is good that environmental matters are excluded from the heavy burden of costs, as far as I can see.
John McDonnell
I see that my hon. Friend on the Front Bench is shaking his head. I am happy for him to correct me on that matter.
Mr Slaughter
I congratulate my hon. Friend on his excellent speech. However, I think that some matters under the Aarhus convention are protected but other environmental matters may well not be.
John McDonnell
I see. Again, we may well table amendments to broaden that protection, because we will rely on judicial review powers to challenge Government decisions—we will certainly do so in the case of the third runway at Heathrow and we might do so in the case of High Speed 2 as well—if we feel that the Government have not acted appropriately or reasonably in their decision-making process.
Having made those three points, I will finish. They are about critical issues that the Government need to address. There is no opposition to the overall legislation tonight, but I hope that there will be opportunities in this process for the Government to consider amendments to improve the legislation, so that certain rights can be protected, particularly those of the individual taking on the powerful within our society.
Philip Davies (Shipley) (Con)
I am in a slightly unusual position this evening, in that I rise to support the Government on this Bill. It is a particular pleasure to be able to support them on matters relating to criminal justice and courts, because that was not always the case when my right hon. Friend the Secretary of State for Justice’s predecessor, the Minister without Portfolio, was in place.
I start by congratulating my right hon. Friend the Secretary of State on reversing the trend that we saw under his predecessor, which seemed to go against every Conservative principle on law and order. He was trying to send as few criminals to prison as possible, culminating —as the right hon. Member for Tooting (Sadiq Khan) made clear in his remarks, with which I agreed—in his treatment of indeterminate sentences for public protection. That was the particular low point of this Government in criminal justice matters. I suspect that, as the right hon. Gentleman hinted at in his speech, if the current Secretary of State had been in place all the way through this Government, indeterminate sentences would still be in place. I do not think that he would ever have got rid of them, and some of the measures in this Bill are trying to undo the damage that was done by getting rid of those sentences in the first place. I am delighted that he has had the courage to revisit some of the issues that his predecessor failed on.
I say that I support the Government, and I do; I support this Bill wholeheartedly. However, as we have heard from other speakers, when we have legislation as extensive as this Bill—it is quite a wide-ranging piece of legislation—there will always be areas where one thinks the Government could have gone further, areas where there are missed opportunities and areas where one might have a few reservations. I am no different from other hon. Members in all those respects. I hope not to take too long, but I will go through a few of the areas where I particularly support the Government, where there have been missed opportunities, and where I have reservations, many of which I hope can be dealt with in Committee or on Report, so that in the end we have a much better Bill.
On clauses 1 to 3, anything that toughens up sentencing for criminals, particularly dangerous criminals, will always have my full support, so I am very pleased that the maximum sentence for certain dangerous offences is being increased to life imprisonment. Terrorists are a great threat to our national security, and measures to prevent them from carrying out their terrible crimes certainly have my full support.
With regard to clauses 24 to 28, I see no real problems with single magistrates dealing with very simple matters that do not require a bench of three to deliberate over. Should anyone object to the measure, I note the safeguards that are in place. I am pleased that single magistrates will deal only with straightforward and minor offences, such as television licence evasion. That should not be a criminal offence anyway, because a licence should not be forced on people; paying for a subscription should be a matter of personal choice, but that is a debate for a different day. Single magistrates will also deal with things like road tax evasion cases.
Dr Huppert
The hon. Gentleman talks about road tax evasion; he is presumably aware that road tax was scrapped in the 1930s.
Philip Davies
I am not entirely sure what the hon. Gentleman is on about, but people do evade their road tax.
Philip Davies
Their vehicle excise duty. I am afraid that the hon. Member for Cambridge (Dr Huppert) has reinforced his reputation for concentrating on the things that are not important, and not concentrating on the things that are.
Philip Davies
I certainly will not give way to the hon. Gentleman again. We have wasted enough time on his nonsense; we will not waste any more on it. I have learned a lesson tonight: not to give way to him. Many people learned that lesson a long time ago, but in my naivety I had yet to learn it. I have learned it now.
I was making a point about single magistrates. The hon. Member for Hayes and Harlington (John McDonnell) expressed a reservation about the provision being extended to cover more than just the most basic and simple crimes. I share that concern. A system of single magistrates will never be appropriate for cases such as shoplifting, because magistrates have very different ideas about what should happen to offenders, particularly persistent offenders, in those types of cases. I hope that the power will not be extended. I sometimes worry that when a power is granted, it will be the thin end of the wedge and the power will be rapidly extended to other areas. I hope that will not be the case for this power. It will be introduced for very basic offences, and I hope it will stop there, and not be extended.
On clauses 37 to 39 and 40 to 48, I understand the concerns that have perhaps influenced the introduction of the new offences relating to jurors, especially given changes in technology. We already have the Contempt of Court Act 1981, so I am not entirely sure how necessary some of the measures are, but they may well be necessary.
I note the reasons given for increasing the maximum age of jurors from 70 to 75. I could not agree more with the rationale for that change, but I am tempted to table an amendment—my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) mentioned this—to extend the change to magistrates and judges. I cannot see any difference between a juror of that age being able to determine the guilt or innocence of somebody in a serious criminal trial, and a member of a bench of magistrates or a judge of that age passing sentence. I do not really see why a person is capable of doing one of those things between the ages of 70 and 75, but not the others.
As the Ministry of Justice helpfully explained,
“According to the latest figures published by the Office for National Statistics, the healthy life expectancy of both men and women at age 65 is at least 10 years in England and Wales.
The existing age limit for jury service, which was set in 1988, does not reflect the current health of older people. Official figures show that healthy life expectancy of 65 year olds in England and Wales has risen since 2000.
We believe the selection of jurors should reflect that fact.”
If that is the case for jurors, presumably the case is exactly the same for magistrates and judges. There would be a cost saving if we extended the measure to magistrates, as they can claim for loss of earnings when they sit, and clearly magistrates who are aged 70 to 75 are less likely to be earning, or concerned with covering their loss of earnings, than those who are younger. Magistrates would still be subject to appraisals, so their competence would not be an issue. I have raised the issue of increasing the age limit before in this place. As my hon. Friend the Member for Kettering (Mr Hollobone) once pointed out, it was ironic that the then Lord Chancellor, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), was past the retirement age for the magistrates of whom he was in charge. The amendment that I would like to see would rectify that anomaly.
I very much welcome the changes relating to judicial review. I hope that they mean that we will have less interference with decisions by judges who hear such cases. Parliament should set the law. Very often, as people will know, I do not particularly agree with Parliament’s decisions, but that is the price of democracy: sometimes you win, and sometimes you lose. Parliament should set the laws of the land, and judges should implement the law as it stands. I do not like—we have seen this far too often in recent years—judges thinking that they should determine the law. If judges want to decide what the law is, they should give up being judges and put themselves up for election like everybody else. If they are not prepared to do that, they should accept the will of Parliament, whether they—or I—like it or not.
On clauses 29 to 31, I certainly understand the principle in the Bill that criminals should contribute to the costs of running courts. I note that the proposed criminal courts charge means that in future, somebody could be ordered in court to pay the following financial penalties: a fine; a victim surcharge; compensation; prosecution costs; and now this extra courts charge. The victim surcharge, which is basically a tax on offenders, has been a rather unhelpful development, particularly when it applies to people who are being sent to prison for long periods of time. When it was first introduced, for most offences, it was levied in cases where there was no victim. It seems bizarre that the victim surcharge was paid by offenders solely in cases where there was no victim. If the courts charge replaced the victim surcharge, that might make more sense. I certainly agree with the principle of making offenders pay; I just have reservations about how these things tend to work in practice.
Kate Green
I am slightly puzzled by what the hon. Gentleman says. My understanding was that the victim surcharge was applied on a case-by-case basis—
Kate Green
I advise the hon. Gentleman that when I was a magistrate sitting on the bench, we applied the surcharge, as part of our sentencing decision, with regard to individual cases. Does he agree that there should be a pecking order when it comes to how payments are applied? We should put the victim surcharge and compensation payments to particular victims ahead of recompense for the cost of the court.
Philip Davies
I am all for making sure that the victim is at the head of the queue when it comes to payments, but the victim surcharge was specifically targeted by the previous Government at offences in which there were no victims. That is the fact of the matter, whether the hon. Lady recalls it that way or not.
I welcome the sentiment behind the changes to release on licence. I am pleased to see any proposals that mean that more of the sentence given by the court is served by offenders. In fact, I have long argued that the sentence given by the court should be served in full by offenders, and that people should not be released early for good behaviour—they should be kept in longer for bad behaviour. At the very least, offenders should not be released automatically halfway through their sentence. That was an absolute scandal that was introduced by the previous Government. I would like to see the Bill go further to rectify that, but I appreciate the point made by the Secretary of State that even though he cannot rectify it in full, he wants to make a start in doing so, and I support him in that.
According to research carried out by Lord Ashcroft, more than 80% of the public think that sentences should be served in full. I cannot improve on the comments of my right hon. Friend the Member for Arundel and South Downs (Nick Herbert), who spoke earlier today. On Second Reading of the Bill that became the Criminal Justice and Immigration Act 2008, he said, as shadow Secretary of State:
“We have said that there should be a policy of honesty in sentencing. The fight against crime depends on integrity in the criminal justice system and on courts that deliver swift, effective justice, with punishments appropriate to the crime and the criminal. In the Criminal Justice Act 2003, the Government introduced automatic release on licence halfway through the sentence for all determinate sentences of longer than 12 months…If this were our Bill, we would introduce provisions to restore honesty in sentencing, in order to reassure victims and leave criminals in no doubt that justice is done.”—[Official Report, 8 October 2007; Vol. 464, c. 79.]
I think that many people went out and voted Conservative at the last general election on the basis that we would restore that honesty to sentencing. The provision is a small step in that direction, but a welcome one. I should like the Government to make clear their intention to remove early release altogether. I appreciate that coalition restraints often do not make such things possible, but I am bound to say that this does not go far enough.
I am pleased that, under clause 6 offenders could be ordered to be subject to compulsory electronic monitoring. I am a big fan of electronic monitoring, particularly monitoring that uses tracking technology, which I hope will have an effect both as a deterrent against future crime and as a means of convicting and punishing those who reoffend while on licence. Similarly, I welcome the changes to the recall of prisoners released on licence, but with some reservations, as the changes do not go nearly far enough. The fixed-term recall, in which the offender is returned to prison for breaching their licence for just 28 days—not, as most people would expect, the rest of the period of their original sentence—is a very bad law. It means not only that offenders are released early but that they are released extremely early again if they fail to abide by their licence conditions both the first time round and if they reoffend. That is outrageous, and the Government need to clamp down on it.
For life sentences, the proposed changes could be going in the right direction, but I still believe that life should mean life. I have highlighted that many times: in my view and that of most of the constituents I speak to there should be no release of a prisoner sent to prison for life. We would not have to deal with the issue of release after the recall of a life prisoner if we did not release life prisoners in first place. The issue of prisoners absconding or not returning to custody is something I have been concerned about for a while. As I mentioned earlier, anything that increases sentencing or toughens up the current position is something I shall happily support. The new offence created by the Bill and the increased penalties for the existing offence are changes that certainly have my support. I only wish we were not releasing people who went on to reoffend or breach their conditions.
Figures I obtained from parliamentary questions show the alarmingly high number of absconds and people not returned to custody after recall. The most persistent are murderers and attempted murderers. Not only my constituents but people up and down the country are asking why on earth we release so many of these murderers on licence.
Cautions were mentioned by the hon. Member for Kingston upon Hull East (Karl Turner), and I agree with him. For some time, I have highlighted, along with him, the use of cautions for very serious offences. I am pleased that the Bill seeks to address the issue. It is worth repeating that a caution is given only when an individual accepts responsibility for the crime—they admit that they are guilty—so their use for serious indictable offences has naturally concerned me and many others. I welcome the curbing of the use of repeat cautions, which has always seemed bizarre to me. A person is given a warning for doing something, they do it again, and instead of being sent to court to face the music, some people are given yet another warning, and yet another warning, and even another warning after that. As my right hon. Friend the Secretary of State has said, recent Ministry of Justice figures apparently showed that 62,000 offenders given a caution in the 12 months to March 2013 had already received a caution previously. The figures also showed that 8,800 criminals who were handed a caution last year had accepted at least one caution for the same offence previously. Perhaps more staggering is the fact that an offender in Northumbria had been given cautions on 50 occasions, and over 50% of persistent offenders do not receive immediate custody. This is an absolute scandal and makes a mockery of the criminal justice system, so I welcome these changes.
I will not detain the House on the issue of young offenders, but I would like some clarification that the proposals will apply equally to boys as well as girls. I would not want to support any proposal that treats them differently, particularly when they have committed the same offence.
I will certainly be tabling an amendment to extend the time limit for an appeal by the Attorney-General against an unduly lenient sentence. I am concerned that the strict 28-day deadline has been, and could be in future, missed in some serious cases. Victims and the public in general need to have confidence in the judicial system, and in the case of an unduly lenient sentence, if the deadline is missed simply because the victim was not made aware of it in time and so did not ask for it to be referred, that confidence could be undermined. I understand the desire to have these things treated quickly, so I would not be looking for an extremely lengthy extension of time. I pay tribute to Jean Taylor and the campaign group Families Fighting for Justice, who have done a lot of work campaigning on this issue. I hope that the Government will be responsive to an extension, perhaps to 90 days, for the most serious offence where people are in custody for a long time, but perhaps not long enough given the seriousness of the offence. I hope that the Government will look favourably upon such an amendment.
I would also like the Bill to end the ludicrous position where time spent on a tagged curfew is credited as if it was time spent on remand in prison. In 2008, on the subject of allowing a curfew whilst on bail to count as credit towards a prison sentence, my hon. and learned Friend the Member for Harborough (Sir Edward Garnier), speaking as the shadow Minister said:
“If someone has committed an offence that crosses the custody threshold—an offence that is serious enough to warrant a custodial sentence—it will cause a great deal of scepticism, undermine public confidence in the justice system and make the Government look increasingly ridiculous if the court is then required to say, ‘By the way, all the time that you have spent at home in bed is time that can be taken away from your custodial sentence.’”—[Official Report, 9 January 2008; Vol. 470, c. 369.]
I agreed with his comments then and I still agree with them now. He was absolutely right to say that when the last Government introduced this ridiculous rule. I hope that the Government, even if they will not do it in this Bill, will seek the earliest opportunity to scrap that ridiculous state of affairs.
I would also like to have seen magistrates allowed to sentence people to prison for up to 12 months for one offence, instead of the current six-month limit. The Conservative party was committed to that at the last election and it is something that I certainly still support. Magistrates have the power to sentence offenders to prison for 12 months for two or more either-way offences and nobody seems concerned about that. There is a possibility that this measure may also cut the cost of our judicial system by allowing more cases to be dealt with in the cheaper magistrates courts compared with the more expensive Crown courts.
I would also like to see consideration given in the Bill to making judges accountable for their decisions, particularly where they do not hand down custodial sentences that would be perfectly justifiable and possibly even expected, and where the offender then goes on to re-offend. I do not think I need to say now what the consequences of the collection of this information should be, but it should be quite clear to many that there should be consequences for a judge who consistently allows offenders to avoid prison, if those offenders go on to make others suffer as a result of their continuing crime sprees. At the very least there should be some assessment of their ability to perform their role.
I talked about boy and girl offenders earlier and I would also like to place on record my continued interest in seeing male and female offenders treated in the same way, particularly when they are convicted of the same offences. That should apply not just for sentencing purposes but for all aspects of the criminal justice system. I am pleased that it is becoming increasingly accepted that women are treated far more leniently than men in the criminal justice system, and that needs to be addressed.
I would like the Bill to have included the principle of a sentencing escalator. The principle was proposed in a private Member’s Bill introduced by my hon. Friends the Members for Kettering and for Bury North (Mr Nuttall). It is extremely popular with the public. Thanks to polling carried out by Lord Ashcroft, we know that it has the support of at least 67% of the British public. The British public clearly think, as I do, that if someone commits an offence and then does it again, the punishment on the second occasion should be more severe than the punishment on the first, and that the punishment on a third occasion should be more severe than the punishment on the second. I would like the Government to make progress on that.
Despite those omissions, on which I would like to see the Government make progress, either in this Bill or in future, the Bill can still be seen as a substantial step forward for the criminal justice system in this country, and the Government and the Secretary of State should be commended for that. Even when the Bill reaches the statute book—hopefully with some of the amendments I propose—I will still be here on the Back Benches urging the Government to go much further.
Angie Bray (Ealing Central and Acton) (Con)
Thank you, Madam Deputy Speaker, for calling me to speak in this important debate on our criminal justice system. It is a pleasure to follow my hon. Friend the Member for Shipley (Philip Davies), who made an excellent speech.
Although the figures on overall recorded crime over the past few years have been encouraging, it is clear to me and to many of my constituents that the deterrent for a number of crimes still needs to be increased so that the courts can be tougher in a variety of cases. As a result of high-profile cases in the media, as well as the terrorist threat facing London and other parts of the UK, there seems to be a perception that crime is increasing, despite what the statistics show. Members of the public need to be reassured that the courts system is keeping pace with the challenges it faces, and I believe that the many sensible measures in the Bill go some way towards achieving that.
My constituency was in the news not so long ago because of a fugitive. Mohammed Ahmed Mohamed sliced off his security tag and vanished from Acton’s An-Noor centre dressed in a burqa, spreading considerable concern throughout the community. We welcome the measures in the Bill designed to clamp down on being unlawfully at large.
I also very much welcome the introduction of life sentences for terror-related offences, including training and manufacturing weapons for terrorist activity. Although very serious in themselves, those offences are also a factor in the wider problem of radicalisation of young British citizens, which threatens the peaceful future of some of our communities. That dangerous manipulation of vulnerable young minds must be addressed with the toughest of sanctions. The case of Abu Hamza, a long-standing resident in my constituency, aroused considerable concern that the law as it stood was ineffective in dealing with someone who was proud to boast about his support for terrorist activity or with his dangerous proselytising outside the Finsbury Park mosque.
It is vital that those fears are addressed. I believe that the widening of the enhanced dangerous offenders sentencing scheme will help achieve that. The sanction of a life sentence must be available to the courts when dealing with those convicted of terrorist offences. I understand that mandatory life sentences for those convicted of a second terrorist offence and the end of automatic parole for terrorism offences would affect as many as 30 people a year.
The issues of sentencing for certain serious crimes and the use of cautions are well covered in the proposed legislation. For too long criminals have operated in the knowledge that custodial sentences are often half what the term suggests, in many cases automatically so. I am pleased that under the proposed changes those guilty of terror offences and certain sexual offences will no longer be automatically up for parole. It is quite right that no one serving an extended determinate sentence should be released without going before a parole board.
The use of police cautions for repeat offenders has resulted in serial offenders regularly escaping jail sentences and has left many of my constituents asking whether the law of the land has any serious role to play in certain crimes. Figures published by the Centre for Crime Prevention last year show that over a five-year period the number of offenders with at least 10 or more previous cautions and subsequent convictions rose by a quarter to 140,000, which suggests that cautions offer very little deterrent, especially to the hardened repeat offender. I am also caused to wonder how much police time and resource is wasted in having to issue cautions time after time to the same people. Given that cautions are intended to represent a warning for relatively minor offences, it is appropriate that they will no longer be used in cases such as rape, possession of an offensive weapon, or sexual offences against children. In fact, it seems extraordinary that such crimes could ever be treated so leniently.
While welcoming the tougher sentences, I also support the idea that some straightforward criminal justice processes need to be streamlined. It is hard to see why a bench of three magistrates is needed to make decisions on charges such as evasion of a television licence or road tax. While not trivialising such offences, the focus of magistrates’ expertise must surely be on more contentious issues. The imposition of financial charges on those convicted in the criminal courts will not only relieve the burden on the taxpayer but provide an additional deterrent. I welcome the sense of fairness that such a charge would engender, which is important for the justice system. The Government must continue to be on the side of those who stick to the rules.
I support the proposed legislation to deal with juror conduct in the internet age. While there may be an absence of malicious intent, jurors need to be very clear that researching cases in which they are involved or disclosing jury deliberations by electronic means are grave offences that could prejudice fair justice. Guidelines on this have suffered accusations of inconsistency, and the courts need a clear message. The provisions outlined in the Bill do a great deal better to equip the courts to deal with the modern challenges they face.
It has surely always been true that there is an implicit deal between those who administer and deliver justice and everyone else—that is, “Leave it to them and they will not disappoint.” However, that deal requires trust, and any breakdown in that trust has serious consequences, as a great previous Conservative Home Secretary, now Lord Howard, well understood. At this point, I should add that I am truly delighted that our Court of Appeal has rejected attempts by the European Court of Human Rights to prohibit our judges from imposing whole life sentences on the most heinous murderers. This is a common-sense victory for our justice system and its ability to decide what is in the best interests of this country.
When crimes are brought to court, society needs to feel that justice has been fully done and seen to be done. If the system begins to fail on this count, that is when people begin to lose faith in the law. The Bill will do much to restore confidence in this regard. I would be delighted, if selected, to serve on the Bill Committee to help ensure that it emerges perhaps improved even further as it progresses to its next stage.
Robert Neill (Bromley and Chislehurst) (Con)
It is a pleasure to follow my hon. Friend the Member for Ealing Central and Acton (Angie Bray), an old colleague on the London Assembly where we attempted, among other things, to scrutinise the Metropolitan Police Authority in its early days. I strongly agree with the sentiments she expressed.
I am delighted to see the shadow Secretary of State, the right hon. Member for Tooting (Sadiq Khan), back in his place. With respect, his was very much a speech of two parts. When I listened to the first part, I thought, “Well, he clearly wants to stand for Mayor of London because he is doing a south London knockabout comic turn.” I was glad that he turned serious in the second part, although I do not agree with all of his analysis. I gently say this to him: keep the day job going because potential Mayors of London are now expected to be various turns, comic or otherwise, from north of the river rather than south. Leaving aside our political disagreement, I say with respect that the one thing that did trouble me—I hope it was perhaps a slip of the tongue—was his saying, as it certainly appeared to a number of Government Members, that judicial review should be capable of challenging primary legislation. I cannot believe that is what he meant to convey.
Robert Neill
Given how the right hon. Gentleman shakes his head, I will take his word on that. I think we all accept that judicial review was not and never should be intended to challenge the will of Parliament. It does, though, have a legitimate role in relation to secondary legislation and the Executive, and I will return to that later. I am grateful that he has clarified his view on that point, which troubled me because it was surprising, if I may put it that way.
I warmly welcome the thrust of the Bill and congratulate my right hon. Friend the Secretary of State on introducing it. I will not touch on all parts of the Bill, but I want to discuss some areas that remind me of my past life—although that may be a dangerous thing to talk about at too much length in this House—and professional experience, namely the 25 years or more that I spent at the criminal Bar. I am delighted with some of the changes to make sentencing more realistic. I do not take the view that sentencing must always be draconian and that all those convicted in the courts are beyond a degree of redemption. That is clearly not the case. It is important, however, that sentencing has the confidence of the public, the victims and the majority law-abiding community. It is also worth remembering that sometimes the families of offenders are themselves victims to a degree. It is very important to have confidence in sentencing, so the greater transparency proposed by the Bill with regard to the amount of time served and the consequences of bad behaviour is a valuable step forward.
The same applies to the use of cautions. I have sympathy with the point made by my hon. Friend the Member for Shipley (Philip Davies) and the hon. Member for Kingston upon Hull East (Karl Turner), who is another former practising barrister and to whom I apologise because I was not present to hear his speech. It degrades the value of cautions to use them for serious offences for which any ordinary, right-thinking member of the public—in other words, to use the famous lawyer’s test, any man or woman on the Clapham omnibus—will conclude that they were never intended to be used. Cautions were intended to be used for trivial matters, so using them for more serious offences degrades their value in those areas where they have a legitimate role. I hope there will be no suggestion that there has been any pressure in terms of targets or resources. The Government have taken a step in the right direction.
A logical step on from that is recognising the importance of making best use, at all levels, of the available judicial resources. Just as it is important to use such resources to prosecute really serious crimes before the court, rather than use cautions, it is entirely sensible for the Bill to free up resources to deal with what are not regulatory, but essentially non-contentious—in so far as anything can be in the criminal justice system—matters. Many of us with experience of the criminal Bar will have been instructed as young, junior advocates on behalf of the prosecution—no doubt happily for us and our fortunately moderate bank balances—to read through and prove a whole list of traffic offences, even in instances of non-appearance. The empty courtroom could have been used for other cases, but time and again we would read out section 9 statements and produce various certificates of conviction that the traffic lights were working properly and heaven knows what, just to prove a case that nobody was arguing about. Removing that anomaly is an important, valuable and major step forward. I will not repeat the point that there are sensible safeguards built into the system for those who want to argue their case.
By way of digression, once upon a time there was—I think there still is—an offence of failing to provide a statutory statement of ownership. In those days, my earnings at the Bar were greatly boosted by being standing counsel to Croydon council and invariably turning up to prosecute such matters without anyone turning up to contest them. That is an extreme example, because sometimes cases got appealed and nobody turned up at the Crown court to prosecute the appeal either. Removing that sort of nonsense from the system has to be in everybody’s interest.
Ensuring that there is an open and publicly accessible record of the system is sensible, because it means that we need not clog up a fully equipped courtroom with witness facilities and other valuable resources that could be used for a contested hearing. It could be done in an anteroom and the press could be provided with access to the results. That is an entirely sensible and proportionate response, for which the Government are to be commended.
A number of the other changes are very useful and sensible. I will not go into the details, but I welcome the changes in relation to rape. Pornographic depiction of rape does seem an obvious matter to deal with—Rape Crisis South London in my constituency has done a lot of work on it—and I am glad that that has been recognised. I think that my hon. Friend the Member for Ealing Central and Acton would agree with me that there may still be gaps in the adequacy of sentencing for other sexual offences, particularly in relation to videos and DVDs of various kinds—we might be able to look at that in due course—but the change is a valuable step forward that we should all welcome.
I am pleased about the arrangements for costs. I was very often instructed to apply for costs against a convicted defendant. That was fine as far as it went—effectively, only the prosecution costs could be awarded, and whatever legal aid contribution was made—but it is legitimate to go further. After all, we are talking about only those who have been convicted. It is currently regarded as a legitimate and proper means of sentencing to give a discount for a guilty plea to reflect, first, remorse; secondly, the potential avoidance of trauma for witnesses; and thirdly, the saving to court time. Those are all legitimate factors, and if we regard the saving of court time as a legitimate factor in the equation for a penalty in the broadest sense, it is not unreasonable to calculate costs more realistically in terms of the totality of court time, rather than just of prosecution costs or an amount towards legal aid. The very sensible change will add to the transparency of the arrangements being put in place.
The change in relation to jurors is valuable. I am particularly pleased about that because my constituent Mr Graham Pound from Bromley specifically raised that matter with me. I received a very sympathetic response from the Lord Chancellor and Secretary of State for Justice, who was of course not able to indicate exactly what he had in mind, but I know that Mr Pound is delighted with the outcome, which reflects reality. Although I accept that there are differences, I have a measure of sympathy with the suggestion that we might go further. My only query with the point made by my hon. Friend the Member for Shipley is that there is a difference between the burden of jury service that we expect someone to undertake, which is generally for a comparatively limited period, and the burden of being a busy member of the bench in a busy magistrates court or of sitting full time as a circuit judge.
In relation to the judiciary—I suspect that such matters could be dealt with by regulation—there might be an advantage in bringing back some recently retired senior circuit judges to sit in the Court of Appeal, as they perhaps did before they retired, while sparing them the burden of presiding over their home courts as resident judges. That might be a very modest first step in maintaining a degree of judicial independence, particularly in the criminal system, because by no means all High Court judges will have the degree of experience of criminal cases at first instance and of regularly sentencing heavy crime that those recently retired circuit judges have. I commend that thought to the Minister as a means of building on the welcome proposals about juries.
I also welcome the changes on the whole question of judicial review. A different part of my experience kicks in on that—as a local councillor and a Minister. I accept the proposition made by the shadow Secretary of State and other Opposition Members that there is a role for judicial review, which can have the salutary effect of concentrating the mind of decision makers and those who advise them. After all, it is not proposed to abolish judicial review, but, equally, it must be approached with a degree of proportion. One difficulty has been a lack of balance and proportion in its use. That is a shame, because there is a risk that a valuable tool, which can be a safeguard for individuals, may become discredited by overuse and exploitation by individuals or groups for what are often seen as partisan, if not party political, means or entirely self-serving ones. The Bill rightly seeks to rectify that.
I am perhaps even older than my hon. Friend the Member for Huntingdon (Mr Djanogly), who talked about being a young Bar student in the ’80s and learning about administrative law. When I did my law exams in the 1970s, judicial review was a very recent concept. It was coming back into existence, thanks largely to Lord Denning. Nowadays, we do not consider him to have been a judge with the most liberal of sentiments, but he was seen as rather radical in those days.
Until the late ’60s and early ’70s, there was virtually no administrative law in this country. It is therefore slightly over-egging the case for judicial review to say, as even some distinguished judges do, that it has been an inherent part of our system since Magna Carta. That is not correct. It has grown up from a root that was in the common law. Through the various prerogative orders, such as mandamus and certiorari, it was constructed by judges into a judicial tool as society and government action became more complex in the ’50s and ’60s. It is a fairly recent feature of our system and it fulfils a valuable role.
Judicial review came into existence because the system needed to be flexible. Perhaps Members will remember Lord Denning telling a former Labour Attorney-General,
“Be you never so high, the law is above you.”
That was in reference to a Labour Government behaving in a peremptory fashion. If the system needed to be flexible at that time, it is equally reasonable to say now, when the industry that has grown up around judicial review has become so oppressive that it has overbalanced the system, that we should pull it back into proportion. That puts what the Secretary of State is seeking to do into its proper context.
Some of the proposals are sensible and straightforward. I do not think that anyone disputes that it is sensible to have the same time limit for a judicial review as for a statutory challenge under the Town and Country Planning Act 1990. Nobody has argued with the reduction in the time limit, because anybody who has dealt with planning matters knows that, particularly now that there has to be so much pre-application disclosure and there can be written representations from objectors and so on, the issues are very well crystallised in people’s minds. I suspect that that is not the most contentious issue.
There are issues with clause 50, although I do not share the criticism of it. I approach it from a slightly different angle. It seems to me that it is not unreasonable to move from the current inevitability test to a test of whether the outcome is likely to have been affected. Ironically, the current inevitability test seems to import something rather like the criminal burden of proof of reasonable doubt—or perhaps an even greater burden of proof—into what is essentially a civil procedure. It is not unreasonable to move to something that is closer to the normal test in civil proceedings of the balance of probabilities.
It is argued that we must act almost punitively to be a constraint on bad decision makers. However, I would have thought that clause 50 contained enough flexibility to provide a more balanced approach, to prevent judicial review from falling into disrepute when somebody wins on a purely technical error by a decision maker that was under no circumstances taken in malice or made negligently, and that would under no circumstances make any difference to the outcome. It is not unreasonable to say that the costs of a judicial review should not be fully provided in those circumstances.
We generally expect much more transparency in decision making in this country. In relation to clause 51, I think that that ought to apply, to a degree, to judicial decision making and to the judicial process generally. Because more and more judicial reviews are, in reality, supported and funded by groups—sometimes lobby groups, sometimes commercial groups that may have an interest—it is legitimate for the taxpayer and law-abiding citizens to have an idea about the source of that funding and, to some degree, the real motive behind the judicial review. Clause 51 is a proportionate means for dealing with that. Similarly, interveners must be aware that a considerably greater cost will occur through a legitimate intervention, especially when—as we have all seen in some cases—the intervener may become the principal driver of the judicial review, and do much more to extend the length of the hearing than the initial parties. Under those circumstances, it is not unreasonable that they should bear the bulk of the risk, since they have driven the bulk of court time as a consequence of the way they pursued their intervention. I would argue that the Bill contains a balanced package on judicial review that should commend itself to the House.
I will not dwell on what might have been in the Bill as I think what it contains is good and valuable. I am, however, a little tempted by the comments of my hon. Friend the Member for Shipley on the accountability of judges. I do not think the Bill is necessarily the right vehicle for that, but we are talking generally about improving the accountability of decision making, and about accountability and transparency within the system. Given that judicial decisions—in judicial review or otherwise —sometimes affect not only large bodies or the state but can affect individuals, there is perhaps an argument to be had about whether our current arrangements to ensure consistency of professionalism in the judiciary are adequate.
There is a strong case for saying that Parliament must be wary of trespassing on the independence of the judiciary. However, I had in my casework a constituent who was seriously aggrieved in the national press because of an inaccurate judgment. In the obiter dicta of the case, the judge quoted wrongly from the papers before him, but released the judgment to the press, with considerable adverse publicity for the person concerned. There is, therefore, an argument for saying that when the Office for Judicial Complaints says, “Unfortunately that is not within our powers because he turned up and he wasn’t drunk and he wasn’t abusive in these terms. There is nothing we can do about this”, we might think that is not really fair. Would we not expect a professional judge to get the facts right and to have read the papers properly? That is an interesting area to consider.
That brings me to my final point, which is that, ultimately, the court system is about transparency and balance. Sometimes balance shifts one way or another, and it is the job of this House, and Parliament as a legislature, to decide on the appropriate balance in the circumstances in which we find it. I agree with the Secretary of State that the balance has moved too far one way, and the Bill seeks to redress that. I therefore commend it to the House.
Dr Julian Huppert (Cambridge) (LD)
Thank you, Madam Deputy Speaker, for calling me in this important debate. For far too many years we have had a tradition of Governments—Conservative and Labour—trying to talk tough on crime and repeatedly aiming for the tabloid commentary, rather than dealing with the underlying causes of crime. That is why I am pleased that we are taking a different approach now, ensuring that we work on rehabilitation and reducing reoffending and initial offending, and tackling the causes of crime together with other Departments. That is an important process and it is good to have restorative justice and various things such as that in the proposals.
The mark of a good and functioning society is low prison numbers and low crime, not how many people we can fit into prison. In 1980, the prison population was 44,000. The then Home Secretary, Willie Whitelaw, described that as “dangerously high”, yet we saw numbers continue to rise year after year, helped of course by the previous Government’s 3,600 new criminal offences. We saw a huge 54% increase in the prison population under the previous Government, who wanted to increase capacity to 96,000—almost two and a half times the number described by Willie Whitelaw as “dangerously high”. That is deeply alarming.
It is not just me who thinks that the previous Government made a huge mistake. It is good to see the shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan) back in his place. He has said:
“in office…it was a mistake to not focus more on the issue of reducing reoffending. We became hesitant in talking about rehabilitation and the merits of investment in bringing down re-offending rates. We got into the position whereby a focus on rehabilitation and reducing re-offending was seen as being soft on crime when in fact it is effective in reducing crime.”
He was right then—he clearly had not been previously—and it is good that this Government are acting on that, because it does make a huge difference. What we saw was a Government who jailed more people than anywhere else in Europe just to sound tough. We can take a better approach that will reduce crime, and that makes a big difference.
That applies to young people in particular. It is astonishing to look at the figures for young people. We have managed almost to halve the number of children serving custodial sentences, from 2,136 in May 2010 to 1,168 in December 2013. I am incredibly proud of that. In 2009, 600 children aged between 12 and 14 were locked up, some for summary offences. There may well be rare cases where somebody as young as 12 should be locked up, but they should be incredibly rare and I find it bizarre that hundreds of children suffered in that way. The Howard League for Penal Reform states:
“the refreshing approach of police forces across England and Wales to reduce the number of unnecessary child arrests, has allowed a renewed focus on crime prevention and alternatives to custody. Youth justice reinvestment pilots in Manchester and inner London boroughs have also shown how investment in diversion rather than criminal justice can yield benefits in terms of public safety.”
We can make the public safer and not lock children up.
Dr Huppert
No. We heard enough from the hon. Gentleman in his rather long speech earlier. I know he disagrees with Churchill. He probably finds Churchill far too liberal for his own tastes, as he probably was when he criticised road tax.
What I do not want to see is children and young people languishing in detention and coming out and reoffending. That is absolutely not the right thing to do. It is not right for anybody—the Offender Rehabilitation Bill aims to help people with short sentences, which will help—but it is particularly the case for young people. I was pleased to hear the Justice Secretary and the Deputy Prime Minister say that we will double the time that young offenders spend in education from 15 hours a week to 30 hours a week by 2015. That was a manifesto commitment we made in 2010—the Minister of State, Ministry of Justice, my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) very much remembers that—and something that we are delivering. It makes a difference. Education is a really important thing for these people, so that they can leave custody with skills and an education they can build on.
The secure college has to have an educational focus and that is what makes it good and worthwhile. By making it progressive rather than punitive, we will really engage with people, give them skills and help them to have a life later that does not involve going into crime. Many of these young people are vulnerable and damaged. We have to provide them with care and support in a safe and secure environment to help turn them back into citizens who will reintegrate into the community on release.
That is all very good, but I have some concerns that I will explore in Committee. Schedule 4 allows restraint to
“secure good order and discipline”.
That sounds worryingly Victorian. The courts have already said that that is not appropriate. I hope we can have clarity from the Government on what exactly is intended. I hope that that is not the intention of this Government.
Before I leave the subject of the number of people in prison, it is worth highlighting the changes in the female prison population, which has declined substantially. It was more than 4,000 when we came into office; it is now substantially below 4,000. That makes a big difference. Women’s prisons will become resettlement prisons, so that offenders serve their sentences as close to home as possible to maintain crucial family relationships, especially with children. There are times when women need to be punished in this way, but we need to help to ensure that afterwards they are able to engage better into society and do not suffer the problems that they could be left with.
I am concerned about the criminal courts charge. I heard what the Justice Secretary said, but I am still concerned that it will end up being unenforceable and skew the way our system works. Justice has made it clear that it is
“concerned that the imposition of a charge may have an unfair bearing on the exercise of a person’s right to plead not guilty, and therefore the presumption of innocence.”
How will it apply to appeals? Will people not be able to take advantage of their right of appeal because of concern about cost?
I was interested by what the Justice Secretary said about the £1.4 billion that was owed to the Courts and Tribunals Service. He talked a lot about dead people; I did not fully understand what he was saying. However, if another charge is added to the list, given that he said that that this would be the lowest priority, far less of it will be collected than the 80% that goes to the top priority. That seems obvious, because it will decay faster and faster.
The Justice Secretary said that if people did not reoffend, the charge would be written off. I should like to know more about how that would operate, but, again, far less would be collected. I am also very concerned about how the charge could be recovered without disproportionate enforcement costs, particularly in relation to the contractors involved. I am also worried about whether there is sufficient discretion in the process.
I am still concerned about tagging. I believe that there have still been no successful prosecutions for violations of tagging curfews when people have challenged the prosecutions and pleaded not guilty. Professor Ross Anderson of the University of Cambridge and others have been expert witnesses in cases that have been dropped on the basis of their evidence, because the tags have been proved not to be sufficiently reliable. I should have thought that there were better ways of spending money, especially given that the tags are not satisfactory.
I am very pleased that the Justice Secretary has given ground on judicial review. Many of us have been pressing him on that for some time, and I am glad that he has now taken some sensible steps. It is really important for ordinary people to be able to challenge the Government. We need transparency, and the Government are pushing for it; shielding the Government from legal challenge by clamping down on judicial review would run completely contrary to that. However, I am still concerned about the changes in relation to interveners. Third parties add important value and expertise to cases, at great cost to themselves and in the wider public interest. I did not think that the Justice Secretary addressed my concern about cases in which people intervene, as opposed to cases involving the “human shield” that he described. That is not the only kind of case involved.
Courts already have strong powers to control interveners. They accept only interventions that are in the public interest. Baroness Hale, the deputy president of the Supreme Court, has said:
“Once a matter is in court, the more important the subject, the more difficult the issues, the more help we”
—the judges—
“need to try and get the right answer… interventions are enormously helpful… . They usually supply arguments and authorities, rather than factual information, which the parties may not have supplied.”
Interveners play a very important role, but the Bill would require them to bear not just their own costs—which are not recouped, which I understand—but those of other parties whose involvement results from their intervention. The application of that could be incredibly broad. If someone intervened and that person’s intervention generated extra work to be done by someone else, the intervener would be billed for all of it. That would deter experts from giving useful and potentially instrumental evidence. We would shoot ourselves in the foot: court decisions would become worse, as the courts themselves have said.
The courts already have discretion to control who intervenes, how people intervene, and for how long they can intervene, and they can fine interveners whose interventions are unreasonable. That strikes me as a sensible balance. I think that the Bill goes too far in clamping down on interventions, and I hope that the Government will look at it more carefully. I understand that there may be cases in which intervention is inappropriate, but the Government must protect appropriate and important interventions,
There is much else that we shall need to consider in Committee, because the Bill contains a great deal of detailed material, but I think that the focus is right. I welcome much of what the Government are doing, but I think that they should concentrate even less on how many people can be locked up, and more on how much crime can be reduced.
Mr Andy Slaughter (Hammersmith) (Lab)
It is curious that a Government who did not think that they needed a Bill to dismantle criminal legal aid or to privatise the probation service should decide that they do need one to encourage courts to report wasted costs orders to the Bar Standards Board. It is also curious that a Lord Chancellor who is reluctant to debate the restriction of access to justice, or risks to public safety, can find plenty of parliamentary time in which to discuss age limits for jurors.
The Government have a curious sense of priorities; but the clue is in the phrase “find time”. We heard earlier that the Lord Chancellor was the only Cabinet Minister to volunteer to conjure up a Bill to fill the yawning void that is the last 15 months of the current Parliament—a carry-over Bill intended to mark time while the coalition parties manufacture disagreements to keep their own core voters happy. His reward—and I am pleased to see him in his place—was to miss the Cabinet’s day out in Aberdeen. There is no justice for the Justice Secretary.
However, I do not want to denigrate the Bill; I merely wish to set it in context. Although there are parts of it that we strongly oppose, much of it is unobjectionable, and some of it is even laudable. It makes sensible administrative changes, and introduces new offences that clarify or reinforce important parts of the law such as contempt, or address failings in the Government’s own legislation or practice. We are not going to find reasons to oppose such measures and, on balance, we will not oppose the Bill tonight, in the hope that improvements can be made before Third Reading.
I can do nothing but praise the quality of the debate today. We are fortunate to have heard from some of the most experienced and thoughtful Members on both sides, and I hope that the Minister will take on board their observations not only when he responds to the debate tonight but when he reviews the Bill in Committee. We have heard former Justice Ministers, including the hon. Member for Huntingdon (Mr Djanogly) and the right hon. Member for Arundel and South Downs (Nick Herbert), and from Select Committee Chairs including my right hon. Friend the Member for Leicester East (Keith Vaz) and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). We have also heard from eminent practitioners such as my hon. Friend the Member for Kingston upon Hull East (Karl Turner) and the hon. Members for Dewsbury (Simon Reevell) and for Bromley and Chislehurst (Robert Neill).
I hope, however, that none of those Members will be offended if I say that the most perceptive comments often came from those who show a lay interest in these matters. The hon. Member for Dartford (Gareth Johnson) talked about exercising caution over the use of cautions and about education on the secure estate, and I agreed with much that my neighbour, the hon. Member for Ealing Central and Acton (Angie Bray), said in her tour d’horizon of the Bill. I was slightly confused, however, by the contributions of the hon. Members for Cambridge (Dr Huppert) and for Shipley (Philip Davies). Both seemed to love the Bill, but one of them thought it was about restorative justice and reducing the prison population by 30,000 while the other thought it was about punishment and increasing the prison population by that number.
Mr Slaughter
Indeed, but the Lord Chancellor has at least managed to make both of them happy, and he should be praised for that, if for nothing else.
I want to make specific mention of the contributions from my hon. Friend the Member for Hayes and Harlington (John McDonnell) and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who made robust defences of judicial review and of open justice. They correctly echoed the view expressed in the Campaign to Protect Rural England’s briefing that judicial review is
“used rarely by community groups in relation to planning decisions because it is costly and a significant and daunting undertaking.”
No one would imagine that, from what the Government have said today.
I shall take my cue from my hon. Friend the Member for Hayes and Harlington and the right hon. Member for Dwyfor Meirionnydd in dealing first with the most contentious and objectionable part of the Bill—part 4, which covers judicial review. What is it about this Lord Chancellor and judicial review that the mention of it makes him behave in an irrational and unreasonable way? He has taken to the columns of the Daily Mail to denounce one of our most important constitutional safeguards as
“a promotional tool for countless Left-wing campaigners.”
It is unclear whether those left-wing campaigners include the Countryside Alliance, the Daily Mail, The Daily Telegraph, UKIP’s Stuart Wheeler and numerous Conservative councils, all of whom have initiated judicial reviews in recent times. However, the senior judiciary’s response to the Lord Chancellor’s consultation shot that particular fox when it stated that it had seen no
“evidence of inappropriate use of judicial review as a campaigning tool, and it is not the experience of the senior judiciary that this is a common problem.”
The Lord Chancellor has already taken bites out of judicial review by imposing additional fees and limiting the time for bringing a claim, in some cases to six weeks. He is also going to restrict the use of legal aid by statutory instrument, rather than through primary legislation. He would wish to hobble applicants more by restricting the recovery of costs until beyond the permission stage and allowing defendants to intervene at that stage with the prospect of recovering their costs. The Bill contains a variety of additional ways to discourage judicial review by increasing applicants’ costs or putting them at risk of paying defendants’ costs. Protective costs orders will not be abolished, but they will be available only in narrow circumstances and once permission is granted.
The worst aspects are in clauses 50 and 53, attacking both the raison d’être of judicial review to correct Executive error in decision making and the ability of third parties to intervene in the public interest and to assist the court. Already heavily criticised, the new test in clause 50 refuses permission where it is “highly likely” the outcome for the applicant
“would not have been substantially different if the conduct complained of had not occurred”.
This confuses unlawfulness with remedy. It will encourage bad decision making and it is likely to lead to a full trial of the issues at permission stage. Lord Pannick, in an article that has already been quoted today, has said that the clause will give the Government a
“get out of jail free card”,
and allow public bodies to
“avoid a hearing and judgment on the legality of their conduct.”
Under clause 53, third parties—often non-governmental organisations, charities and human rights organisations—that intervene in judicial reviews to clarify issues that often assist the court will now be severely discouraged from doing so by cost penalties. Yet Lady Justice Hale of the Supreme Court has said that
“interventions are enormously helpful…The most frequent are NGOs such as Liberty and Justice, whose commitment is usually to a principle rather than a person. They usually supply arguments and authorities, rather than factual information, which the parties may not have supplied.”
In aggregate, these proposals mean that only applicants of substantial means will be able to bring a claim or risk the costs of losing it. In a country without a written constitution, judicial review is one important way of holding the Executive to account. This Government want to insulate their bad decision making from legal challenge and place themselves outside the rule of law. They are strengthening Executive power and weakening a critical check on the power of the state. This Lord Chancellor, for misguided party political motives and as part of a sustained attack on access to justice, is undermining our civil liberties, and these changes should be against everything the Liberal Democrats stand for. Under this Government, seeking justice is getting harder and these proposals show them on the side of their corporate friends, not of individual citizens and communities. Politicians in power might find judicial review an awkward irritant, but that is precisely what it is intended to be. Combined with the cuts to legal aid, limitations on no win, no fee cases, and threats to the Human Rights Act and European convention, this proposal amounts to a sustained attack on the rights of individual citizens to hold those in power to account. As the President of the Supreme Court, Lord Neuberger puts it,
“one must be very careful about any proposals whose aim is to cut down the right to judicial review”.
He has also said:
“The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive.”
We have serious concerns about other parts of the Bill. As they stand, the plans for secure colleges may prove damaging to thousands of young offenders in our criminal justice system. The Bill leaves a question mark over the future of secure children’s homes, which cater for the most vulnerable young people. Such homes typically house small numbers of children, provide intensive support and are staffed by highly qualified specialists in social care. The homes have good educational outcomes and are recognised as the preferred model of youth custody, but they look set to lose out to the Lord Chancellor’s new and untested pet project. It is untested according to the Government’s own impact assessment, but still £85 million is needed to build just one secure college.
The Justice Committee pointed out in its report last March that the average time in youth custody is only 79 days, so most young offenders would not be in a college long enough to improve their basic skills. What levels of training or qualification would the college staff have? Why will college custody officers be empowered to use “reasonable force” for the maintenance of “good order and discipline”? That may well be unlawful under the European convention on human rights, according to a Court of Appeal 2008 ruling and the UN Committee on the Rights of the Child, which stated in 2007:
“Restraint or force can be used only when the child poses an imminent threat of injury to him or herself or others, and only when all other means of control have been exhausted. The use of restraint or force, including physical, mechanical and medical restraints, should be under close and direct control of a medical and/or psychological professional. It must never be used as a means of punishment.”
As regards part 3 of the Bill, we support the use of single justices, given that their jurisdiction will apply only to summary, non-imprisonable offences where an adult defendant pleads guilty. However, we object strongly to taking these cases out of the courtroom and into offices away from public view. Such an approach damages the principle of British justice that cases are heard and the results made known in public. This Government are too fond of secret courts, and even in minor cases the principle of open justice should be rarely departed from. We agree in principle that convicted criminals could contribute to the costs of trial, but the substantial amount of uncollected fines from criminals already totals more than £1 billion and it is likely that this proposal will just add to the total of uncollected moneys from criminals. We have no objection in principle to leapfrog appeals, for example, on issues of national importance, though they are most likely to be used by government trying to hurry the process up. The danger is that this simply overloads the Supreme Court and that the issues it has to deal with are insufficiently refined by earlier hearings.
It is a good idea to update the jury room process and the rules on reporting cases to accommodate the social media age. The Attorney-General is to be commended for taking a personal interest in the limitations on reporting and in discouraging jurors from using social media to research or publicise details of trials. However, the Government fail to provide any support to juries in explaining their roles and remit as part of any new offences, and it is not clear whether they have considered the full implications of the numbers of people using social media and the variety of methods available. We have no objection to raising the age of jury service to 75.
There are two glaring problems with part 1 of the Bill. It does not do what it says on the tin, which is to protect the public adequately from violent and dangerous offenders, but it does incur costs and prison resources that the Government do not have in place. I fear that the hon. Member for Shipley may have been slightly taken in by the rhetoric rather the actuality of what is in part 1. The changes to sentences for the most serious and violent criminals are a poor substitute for indeterminate sentences for public protection, which this Government abolished in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—[Interruption.] I do like to mention that, because it is the one thing that we both agree on.
Mr Slaughter
I am afraid that the Government have been playing catch-up ever since IPPs were abolished, but none of what is proposed offers the same level of public protection. The Government’s own impact assessment states that the sentencing changes will require 1,050 additional prison places, but there are fewer than half that currently available. It also states that the costs of additional custody are not quantified. We noted with concern the Lord Chancellor’s inability to answer any of the questions about his Department’s budgets. Proposals in part 1 will also see a greater work load for the Parole Board, with an additional 1,100 Parole Board hearings a year, according to the Government’s impact assessment. However, no additional resources are being made available, at a time when Parole Board staff numbers have already been cut by nearly one in five.
We support the ban on the possession of extreme pornographic images depicting rape and other non-consensual sexual penetration. That is a welcome victory for campaign groups such as Rape Crisis South London and the End Violence Against Women Coalition. We support the restrictions on the use of simple cautions.
Criminal justice Bills have a reputation for being Christmas tree Bills, and this one is no different. It is a mixture of the minor and non-contentious with some major, damaging and poorly thought-out measures, such as those in part 4, which, if they survive here, will be butchered in the other place.
This is also quite a mean little Bill, reflecting the character of its author. It further limits the rights of the citizen against the state, and it scratches around to find some more savings because the Treasury has been overpromised. Desperate to impress the Prime Minister, this is the best that the Secretary of State could come up with. Much of it is unexceptional or unobjectionable. It is legislation for legislation’s sake, and is designed to fill an intellectual and actual void in the Government’s programme. It is irrelevant to the big issues being played out in our justice system. It reinforces the growing view in the country that it is time for this failing Lord Chancellor and this Government to move on.
The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara)
May I start by thanking all Members, on both sides of the House, who have spoken today? The debate has been both considered and thorough, and the number of points that have been raised confirms the importance of the issues before us.
As my right hon. Friend the Lord Chancellor set out at the start of this debate, the Bill represents the next stage of our reforms to deliver a cost-effective justice system in which the public can have real confidence. The key elements of the Bill will deliver a firm but fair package of sentencing and criminal law reforms, which will properly punish serious and repeat offenders and better protect victims and the public. We are clear that people who break the law will not escape the law.
The Bill provides for the creation of secure colleges, putting education at the very heart of youth custody, giving young offenders the tools they need to lead a life away from crime. We are modernising the law to tackle the influence of the internet on trials by jury to ensure that defendants receive a fair trial, reflecting how technology and the wealth of information available at the touch of a button has changed the way in which we live. We will reduce the burden of the cost of courts on hard-working taxpayers by making sure that criminals pay towards the cost of their court cases. The Bill will make critical reforms to judicial review, to tackle unmeritorious claims and unnecessary delays in the system.
Members have raised a number of issues, many of which will, of course, be debated further in Committee. However, I should like to touch on some of the points made by colleagues. They will forgive me for not being able to mention every point made in every speech, but I shall try to cover as many of them as I possibly can.
My hon. Friend the Member for Huntingdon (Mr Djanogly) started by commenting on the proposals for single magistrates to deal with low-level, uncontested cases. This issue was touched on by a number of other colleagues. Let me be clear that we are talking about low-level, uncontested cases. Let me also be clear that where someone wishes to contest a case, they can have it heard before two or three magistrates and it can be dealt with in the usual way. This proposal is for cases—the vast majority of them—where people simply do not bother to turn up or reply, or if they do, they plead guilty.
Karl Turner
If that is the Government’s intention, why does the Bill not say that?
Mr Vara
It does.
My hon. Friend the Member for Huntingdon spoke about the age limit for jurors being raised from 70 to 75. The reason is that we must recognise that people are now living longer and healthier lives. It is important that jurors reflect society at large. If society is growing older, we need to ensure that jurors, who decide cases, reflect that. I accept that we have a problem in attracting young people to become magistrates, and we must continue to try to address that issue, but that is not to say that we should not increase the age.
On court costs, several colleagues were concerned about the rate of recovery. Let me clarify the point. At present, the recovery rates for compensation, fines and the victim surcharge stands at 80%, and there is no reason to believe that court charges will not be recovered at similar rate.
Dr Huppert
We heard earlier that such charges would be the lowest priority of claim. The Justice Secretary was clear on that. Surely, if only 80% of the higher priority claims are collected and some people run out of money when they have paid the highest priority, a lower proportion of the low-priority claims will be collected.
Mr Vara
My hon. Friend needs to appreciate that the time lag will be longer. This will be the last element to be claimed. It will be claimed after the others. There will be a priority element, and this will be the last bit. There is no reason to conclude that, if the other four criteria have been met with an 80% collection rate, the fifth one will not.
The right hon. Member for Dwyfor Meirionnydd (Mr Llwyd)—I hope that I have pronounced the constituency name correctly, or close enough—had concerns about prison places. As the Justice Secretary said in his opening remarks, in the next 15 or so months, we expect that there will be some 2,000 more places, and Wrexham prison will have more than 2,000 places by 2017. He raised secure colleges. I emphasise that the aim is to reduce reoffending and have the expertise to provide for educational needs.
Kate Green
I am grateful to the Minister for giving way. How does he think that the public will react to the concept of 350 fairly seriously offending young men living on a single site in their neighbourhood?
Mr Vara
There are institutions of a custodial nature in which the numbers of people are far more than that at the moment. They will not all live in one unit. There will be separate units and different age groups and categories of people. I see no reason why, at a more cost-effective rate, we cannot seek to do what is not happening at present: reduce reoffending rates.
The right hon. Member for Dwyfor Meirionnydd also spoke of the possible use of force, and that issue was also raised by a number of hon. Members on both sides of the House. I will just point out that the Bill sets up secure colleges but it does not speak of using force. That issue needs to be addressed later, when it comes to dealing with the rules for secure colleges. I recognise that it is an important issue, which needs to be dealt with sensitively, and I am sure that when those rules are drawn up, that is how it will be dealt with.
My right hon. Friend the Member for Arundel and South Downs (Nick Herbert) gave a very supportive speech and spoke with experience of having been a Minister both in my Department and in the Home Office. His arguments were well reasoned and he spoke about early release, electronic tagging and a number of other issues. He pointed out to the House that the magistracy that we have been discussing has been with us for some 650 years.
The hon. Member for Kingston upon Hull East (Karl Turner) also raised the issue of magistrates sitting on their own and I hope that I have covered that. He also touched on the issue of judicial reviews, as did the hon. Member for Stretford and Urmston (Kate Green), in a number of interventions, and other hon. Members. Let me be clear about this point too. My right hon. Friend the Lord Chancellor did not say that all claims were being made by left-wing campaign groups, but it is a fact that some claims have been or are made by such groups. The hon. Lady herself admitted, in one of her interventions, that before she entered the House, she ran a group and was regularly involved in judicial reviews. If people are going to throw ammunition at this side, it is important that they at least put things in context.
My hon. Friend the Member for Dartford (Gareth Johnson) spoke with experience and was right to put education at the heart of secure colleges. [Interruption.] The hon. Member for Stretford and Urmston continues to mutter away, but I suggest that she looks at Hansard tomorrow morning. My hon. Friend was right to highlight the issue of education and I am grateful for his general approval for all that the Government are doing.
The hon. Member for Hayes and Harlington (John McDonnell) also spoke of secure colleges. I emphasise to him that, as I said earlier, there will be separate units to cater for different categories of people in those colleges rather than everyone being in one structure.
As far as the magistrates courts are concerned, there was concern about openness and transparency—
Mr Vara
I will not give way, as I want to make progress. I believe that I have been generous in taking a number of interventions, but I have limited time.
The issue of openness and transparency was raised, and I want to make it clear that each magistrates court publishes within its court buildings daily lists of cases being heard at that court. All magistrates courts routinely make lists of case results available to the local media, and the criminal procedure rules also oblige courts to give certain additional information on cases in response to third-party requests. I also want to put on the record that we are looking at further ways of making court processes and outcomes more transparent, including exploring the possibility of publishing court outcomes electronically.
My hon. Friend the Member for Dewsbury (Simon Reevell) reflected his experience at the Bar in the issues that he raised, and I am grateful for his support for the measures that we are introducing.
My hon. Friend the Member for Shipley (Philip Davies) was characteristically robust and raised a number of issues. I am delighted, as I am sure the Chief Whip is, that he supports the proposals that we are seeking to introduce today, and I am sure that my right hon. Friend the Lord Chancellor is appreciative of the personal congratulations that he conveyed to him earlier on introducing these measures.
My hon. Friend mentioned the magistrates courts; I assure him that our intention is to ensure that the proposals are confined to low-level offences. He also asked an important question: why can the maximum age of jurors be raised from 70 to 75, when a similar age increase is not allowed for magistrates and judges? One of the reasons is that jurors will work on one trial, and then return to their daily, routine lives, whereas magistrates and judges have to play their role day in, day out, and of course that is completely different from jurors sitting on odd cases.
My hon. Friend will be aware that there are transitional arrangements in place. When the rule about the age of 70 came in for the judiciary, those judges who were still in place could opt to work until they were 75. He also spoke of judges being held to account. All I would say to that is that we have to be mindful that the judiciary is an independent section of our constitution.
I thank my hon. Friend the Member for Ealing Central and Acton (Angie Bray) for her supportive comments, and my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), who, again, spoke of his personal experience at the Bar. He was right to refer to the man on the Clapham omnibus and the use of common sense. Many of the proposals that we are introducing are absolutely that: common-sense proposals with which the majority of the public would agree.
My hon. Friend the Member for Cambridge (Dr Huppert) is right to highlight Labour’s record in government, because all that Labour Members, and certainly its Front Benchers, have been doing is complaining, rather than acknowledging their errors when in government. He also spoke about secure colleges. He is right to say that no one wants young children to reoffend. He is absolutely correct when he says that we have to give them education, and the skills and discipline to ensure that they can lead productive lives. Like others, he referred to the issue of force, but I hope that he accepts that I have given reassurance on that. He was concerned about the court charges that we propose, and I have dealt with that issue.
I thank the right hon. Member for Leicester East (Keith Vaz) and my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), both senior Members of the House and Chairmen of important Select Committees. Their contributions reflected their expertise and breadth of knowledge.
The Bill toughens up terrorism and terrorism-related offences and ends automatic early release for certain serious, violent and sexual offences. The new secure colleges will place education at the heart of youth custody, ensuring that young people acquire the skills, qualifications and self-discipline to lead productive lives on release, and break away from the cycle of reoffending.
It has to be right for criminals who use the courts to pay towards the cost of running them, thereby reducing the burden on hard-working taxpayers. We are also putting in place important measures to deal with the growing number of unmeritorious judicial review applications that are clogging up our court system and putting additional burdens on public services. The consequences of the internet world that we live in simply cannot be ignored. That is why we are ensuring that jurors base their decisions on the evidence put before them, and not on the results of a Google search. These and the other measures in this Bill are important, sensible and necessary. They represent a critical next step in strengthening confidence in our justice system, and providing safety and security for people and their communities. I welcome all the contributions made today, and I assure the House that many of the issues raised will be debated in further detail in Committee.
Finally, I note that we have a new clock, which shows seconds, and not just minutes as the one before did. Happily, I can assure the House that I do not have to rely on the seconds today; I am more than happy to finish a little early—by minutes, rather than seconds. I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time.
CRIMINAL JUSTICE AND COURTS BILL (PROGRAMME)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Criminal Justice and Courts Bill:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 1 April 2014.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Consideration and Third Reading
(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.
Other proceedings
(7) Any other proceedings on the Bill (including any proceedings on consideration of Lords Amendments or on any further messages from the Lords) may be programmed.—(Claire Perry.)
Question agreed to.
CRIMINAL JUSTICE AND COURTS BILL (MONEY)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Criminal Justice and Courts Bill, it is expedient to authorise the payment out of money provided by Parliament of:
(1) any expenditure incurred by a Minister of the Crown under or by virtue of the Act, and
(2) any increase attributable to the Act in the sums payable under any other Act out of money so provided.—(Claire Perry.)
Question agreed to.
CRIMINAL JUSTICE AND COURTS BILL (WAYS AND MEANS)
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Criminal Justice and Courts Bill, it is expedient to authorise:
(1) the imposition on persons convicted of offences of charges relating to the costs of providing criminal courts; and
(2) the payment of sums into the Consolidated Fund.—(Claire Perry.)
Question agreed to.
CRIMINAL JUSTICE AND COURTS BILL (CARRY-OVER)
Motion made, and Question put forthwith (Standing Order No. 80A(1)(a)),
That if, at the conclusion of this Session of Parliament, proceedings on the Criminal Justice and Courts Bill have not been completed, they shall be resumed in the next Session.—(Claire Perry.)