Criminal Justice and Courts Bill

Monday 30th June 2014 Lords Chamber

Second Reading

15:08

Moved by

[Lord Faulks]

That the Bill be read a second time.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, this is a significant and far-reaching Bill that has at its heart a vision for a stronger and fairer justice system. It introduces steps to toughen our approach to the most serious and repeat offenders, ensuring that penalties reflect the seriousness of the crimes committed and providing greater certainty for victims. It seeks to modernise our court processes and rebalance the judicial review system to reduce the delays caused by inappropriate or unmeritorious claims.

Our system of justice is regarded with enormous respect throughout the world. The quality of our judiciary and our respect for the rule of law are significant factors in attracting foreign investment to our shores. The Government are not, however, complacent. We must constantly examine our criminal and civil justice systems, not simply to respond to the latest headline but to ensure that they are adapting to the modern world.

In the field of criminal justice there is a need to identify the most serious offences and to make sure that our judges have adequate powers to deal with offenders. Equally we are absolutely determined to make a real impact on reoffending by our reforms, which will transform rehabilitation. Your Lordships’ House has enabled, for the first time, offenders who have received short sentences to be properly prepared for release and properly supported when they are released. This way, they will be better able to cope with life on the outside and will be much less likely to offend.

Another major issue is in the provision of education for young offenders. The need to provide this lies at the very heart of our plans in the Bill to introduce secure colleges to give young offenders real educational opportunities, often for the first time in their lives.

Improvements in our civil law system are making a difference. In Part 2 of the LASPO Act 2012, we implemented recommendations suggested by Sir Rupert Jackson to rebalance the system and deal with the consequences of the introduction of conditional fee agreements, which benefitted no one but lawyers and the organisations that fed on the system. It will be a little time before we can assess the full effect of our reforms, but the signs are hopeful.

One of the least attractive aspects of our system was the growth of claims management companies. A claims management regulation unit, which I have visited, has been in place since 2007, providing really effective protection to consumers and closely reining in unacceptable practices. The unit has the power to suspend, vary or cancel licences. Furthermore, I announced last Friday that the unit will be able to impose substantial fines on companies that break the rules. I am glad to tell your Lordships that the number of these companies is reducing, and reducing quickly.

These are just some of the changes that we are making. This Bill is part of the narrative. Criminal justice provisions in Part 1 of the Bill will help to keep our communities safe and secure, and ensure that offenders face the consequences of their crimes. Provisions in this part of the Bill place restrictions on the use of simple cautions on a statutory footing to ensure that serious and repeat offenders are treated consistently and are punished appropriately.

Unless there are exceptional circumstances, offenders will no longer receive a caution for the most serious offences, such as rape and robbery. For other offences, we are limiting the repeated use of cautions for the same, or similar, offences committed within a two-year period. We are ensuring that for all dangerous offenders and those who commit offences of particular concern, the Parole Board will consider their risk before early release can be authorised. This will improve public protection and encourage offenders to take responsibility for their own rehabilitation.

We have also made provision to ensure that the courts have sufficient tools to deal with offences that can have an enormous impact on victims and our communities. That is why we have increased the penalty for causing death while driving while disqualified, and introduced a new offence of causing serious injury while driving while disqualified. It is why we are adding further terrorism offences to the enhanced dangerous offender sentencing scheme, as well as increasing maximum penalties to life for offences where that is not already the case.

It is right that we have the necessary tools to monitor offenders on licence and to deal with breaches of licence conditions. The Bill introduces an additional “recall and release” test for determinate sentence prisoners, requiring consideration of whether, if released, an offender would be highly likely to commit further breaches of their licence, including further offending. This seeks to end the continuous cycle of fixed-term recalls and automatic release for offenders who persistently and wilfully breach their licence conditions.

We are also taking powers to impose mandatory location monitoring of offenders released on licence. The use of innovative new technology will help to deter reoffending, allow better monitoring of whereabouts and compliance with other licence conditions, as well as assist with crime detection.

It is sometimes the case that issues of national concern highlight the need for our laws to evolve to tackle different types of behaviour. The horrifying events at Mid-Staffordshire NHS Foundation Trust, and the review into the safety of patients in England that followed, exposed a gap in legislation as regards ill treatment or wilful neglect of users of health and care services. It was rightly recommended that this should be rectified. The Bill closes that gap by creating new criminal offences to deal with these completely unacceptable behaviours.

High-profile failings in police conduct have dominated headlines in recent years, most notably following the revelations about the handling of the Stephen Lawrence investigation. The existing common-law offence of misconduct in public office dates back several hundred years and is not specific either to cases of corruption or to police officers. It is not always well suited to dealing with or deterring the pattern of corruption in today’s information age, so we are introducing the new police corruption offence, which will ensure that the small number of officers who are corrupt are properly punished and face the appropriate penalty for their crimes. However, we also recognise the special role that police and prison officers play in routinely coming into contact with dangerous offenders in difficult situations. That is why we are raising the starting point for sentencing a murderer of a police or prison officer in the course of their duty to a whole-life order.

Part 2 of the Bill deals with the critical matter of youth justice. Under this Government, crime and offending by young people is down, with fewer entering the criminal justice system and ending up in custody. At present we pay around £100,000 a year for a place in youth custody, yet almost 70% go on to reoffend within 12 months. No current youth custodial establishment—young offender institutions, secure training centres and secure children’s homes—is providing good enough outcomes. For young offenders where custody is necessary, we want to make the best use of the opportunity to help to turn their lives around. We need to be better at rehabilitating young offenders.

Secure colleges will have education at their heart, with all other services designed in support of raising educational attainment and tackling offending behaviour. Figures suggest that 86% of young men in young offender institutions have been excluded from school at some point, and more than half of 15 to 17 year-olds in YOIs have the literacy and numeracy level expected of a seven to 11 year-old.

Secure colleges will provide the support and skills that young offenders need to stop reoffending and to contribute positively to society in adult life. The Bill establishes the statutory framework for secure colleges, with further detail to be set out in the secure college rules. Operators of secure colleges will be invited to deliver a broad, intensive and engaging curriculum to support and motivate the full range of ages and abilities of young people accommodated in these establishments.

The Government recognise that there are likely to be some detained young people who will continue to require separate specialist accommodation, either on the grounds of their age, acute needs or vulnerability. We are therefore committed to continuing to provide separate specialist accommodation, such as secure children’s homes, for this group of young offenders.

On 9 June my right honourable friend the Lord Chancellor and Secretary of State for Justice informed both Houses that the Ministry of Justice had selected a preferred provider—Wates—to design and build the pathfinder secure college in the east Midlands. Subject to parliamentary approval, if this pathfinder proves effective it will be a model for a future network of secure colleges across England and Wales. I can assure your Lordships that construction will begin only if this Bill receives Royal Assent.

Before this Bill reaches Report, we will launch a public consultation on our plans for secure college rules, which will set out the core requirements to ensure that the establishments operate safely and securely. I will inform the House of the details of this consultation in due course. We also intend to hold a meeting prior to Committee, to which all Peers will be invited, to show in more detail what the plans are, in physical terms, for the pathfinder college.

I hope that all noble Lords will at the very least keep an open mind and not resort to describing these establishments as “fortresses” or “Titan” prisons. Such rhetoric hardly helps in our quest to help some of our most vulnerable young people and is surely not the approach that should be adopted in your Lordships’ House.

This part also makes sure that all 17 year-olds have access to an appropriate adult when they receive a caution, and we are changing the law regarding referral orders to provide greater flexibility and powers for the court when punishing a breach or dealing with further offending.

Part 3 is very much about increasing the efficiency and flexibility of the courts to keep pace with the modern world. At present, much court time is wasted in hearing cases in open court when the defendant fails to attend; the only people present are magistrates and prosecutors. We could make better use of this valuable time elsewhere. This Bill allows one magistrate to deal with low-level regulatory cases away from traditional magistrates’ courtrooms. The types of cases that we are concerned about are the likes of failing to register the new keeper of a vehicle or depositing litter. We are ensuring that the defendant’s right to request a hearing is preserved, as the procedure will apply only when a defendant has either expressly or impliedly waived that right. We are also enabling more cases to bypass the Court of Appeal and go straight to the Supreme Court, again saving valuable court time. I reassure noble and learned Lords from the Supreme Court that that will be only with the consent of the Supreme Court.

The use of the internet has had a profound impact on how we carry out our daily lives, so we are also modernising the law on juror misconduct to bring it into the 21st century. Some of your Lordships might have seen that the Attorney-General has today announced that the Government intend to table an amendment to omit the provisions to update the law of contempt of court as it relates to publications. The measures were intended to provide clarity, to allow the media time to take down material, and to provide a defence until that point. The media, however, raised strong objections. Since the existing law gives protection for the integrity of court proceedings, we have decided not to pursue these measures.

This part also introduces a charge, payable by adult offenders on conviction, to contribute towards to the costs of the criminal courts. We already recognise that those who bring cases in the family and civil courts should bear some of the court costs in those jurisdictions. These provisions make that a reality in the criminal sphere, so that those who give rise to the costs of the criminal courts share the burden of those costs, rather than it solely being the burden of the taxpayer. Repayments can be set at an affordable rate, and we are encouraging rehabilitation by allowing the charge to be remitted after a certain period without reoffending provided that the offender has also taken reasonable steps to pay off the charge. To ensure that we have maximum flexibility, we are also extending the powers of fines officers to vary repayment of financial impositions after default, as well as prior to default.

Finally, I turn to Part 4, on the matter of judicial review, which is one of the most important means by which government and other public bodies can be held legally accountable for their decisions and actions. However, judicial review has grown significantly over recent years, and while there are many important and valuable judicial review cases brought every year there are also too many that are not. We have taken a detailed look at judicial review and concluded that there is a case for some proportionate and common-sense reform.

Part 4 will provide a better balance, ensuring that judicial review continues as a check on the Executive while limiting the potential to abuse it for collateral purposes, such as delay. The clauses in Part 4 deliver two things. The first is a much needed rebalancing of the financial risk of bringing or driving a weak judicial review. We think it right that those who bring or choose to become involved in a judicial review should face their fair share of the financial risk that entails, rather than expecting a subsidy from the body they are challenging. This is the position in other civil litigation.

We will therefore ensure that the courts have the information they need to use their existing powers to reach through, say, a shell company when awarding costs against an unsuccessful party. That does not mean that everyone who donates to a campaign will be at risk, but it is right that there should be a proportionate liability for those who in reality control, guide and stand to benefit from a judicial review.

[Lord Clinton-Davis (Lab)]

Is it not evident that judicial review will be enormously affected by this and that it will be beyond the scope of people to pay? In other words, it will become the province of the rich and not of the poor.

[Lord Faulks]

My Lords, we do not think so. The argument over legal aid is a debate that we have already had in your Lordships’ House. It is the Government’s view that the changes in the legal aid provisions were an entirely proportionate and sensible approach to legal aid, given the scarce resources that are available. As to the availability generally of judicial review, the Government are concerned to ensure that it remains a realistic remedy, but nevertheless that appropriate modifications are made. We will scrutinise those modifications during the course of the debate.

We are affirming in statute the court’s ability to make orders protecting an unsuccessful claimant from a successful defendant’s costs. But it must be right that such protection, almost invariably at a cost to hard-pressed taxpayers, should be reserved for cases with merit and which concern matters of high public interest.

Those who intervene in a case to make arguments or adduce evidence can certainly add value to the proceedings, but we think it right that they should face the financial consequences of their decision to intervene. However, having listened to arguments in the other place we are persuaded that there may be a case for some modification of the provisions and we look forward to considering possible amendments.

Secondly, Part 4 limits the scope to use minor technicalities as a foundation for a judicial review designed to bring about delay by building on an existing approach taken by the courts. This will bite on claims based on a minor flaw in a process, where the outcome of that process for the applicant was highly unlikely to have been changed by the flaw. Our change will mean that, in those situations, the court should not grant permission to continue, or a remedy.

By taking that approach, other more meritorious judicial reviews, in which it is likely or probable that there would have been a difference, can proceed more quickly, given the freeing up of scarce judicial resources. Where there is any significant doubt in the court’s view over whether a procedural failing would have made a difference to the end result—perhaps the grant of a licence or the positioning of a pedestrian crossing—the clause would of course have no effect. Consequently, this clause will be very far from a “get out of jail free” card for poor administrators. I trust that, through the consideration of the Bill, I will be able to demonstrate these points to the House’s satisfaction. However, I cannot stress too strongly that we are not abolishing judicial review.

The shadow Lord Chancellor in the other place invoked the impending anniversary of Magna Carta and said that the Government were,

“depriving citizens and communities of their rights to challenge power”.—[Official Report, Commons, 17/6/14; col. 1073.]

I am confident that the noble Lord, Lord Beecham, has a rather more secure grasp of legal history—judicial review, as we know, started in the 1970s—and that he and others of your Lordships will accept that acknowledging the value of judicial review does not preclude Parliament carefully scrutinising the extent to which it should be used to frustrate the legitimate exercise of power by a democratically elected body. The Government consider that ours is a balanced package of measures which will ensure that judicial review will continue to operate effectively and appropriately.

The Bill contains a wide range of important proposals to ensure that we deliver a justice system that people can be proud of. It ensures that offenders and claimants take responsibility for their actions and that our laws reflect the 21st century. I feel confident that the great expertise that can be found in your Lordships’ House will be brought to bear on the Bill. I look forward to debating it and benefiting from that expertise. I hope that noble Lords will support the outcomes it seeks to achieve. I commend the Bill to the House. I beg to move.

15:31

[Lord Beecham (Lab)]

My Lords, another parliamentary day, another Criminal Justice and Courts Bill. The House will be grateful to the Minister for his comprehensive guided tour of the Bill’s proposals but the reality is that we are presented once again with a veritable pot pourri of legislative proposals, the customary mix of the worthy and the welcome, the half-baked and the harmful. This time, some 16 measures were added to the mix two days before Report and Third Reading in the Commons, with little or no time for debate. Therefore, they arrive here today effectively sight unseen.

Today, a pot pourri merits this dictionary definition:

“A mix of dried petals and spices in a bowl designed to perfume a room”,

but the original French stands for a stew made from different kinds of meat—literally a rotten pot—and too much of this Bill fits the latter description.

There are certainly parts to welcome—for example, the provisions about police corruption, extreme pornography, malicious communications and care worker offences of ill treatment or wilful neglect. However, there are others, notably those dealing with secure colleges and judicial review, which demonstrate the propensity of this Government in general, and this Lord Chancellor in particular, to indulge in grandstanding on issues of crime and justice on the basis of the most tenuous evidence, and with a disturbing determination to curtail judicial discretion.

I will deal later with those matters but, at this stage, will cite two examples of the Government’s cavalier approach. The first is the headline-grabbing proposal, referred to by the Minister this afternoon, to increase the maximum sentence for causing death by dangerous driving while disqualified to 10 years’ imprisonment. It is a serious offence, but one of which only 13 defendants were convicted last year. The second is the claim that the number of cases of judicial review has soared from 4,500 a year to 12,400, which was repeated by the Minister in last Thursday’s Times, whereas almost the entire increase was due to asylum and immigration cases, which are now dealt with under the tribunal system, not by judicial review, thereby reducing the workload and, presumably, therefore, the cost, of the Administrative Court by nearly two-thirds.

A more insidious approach is the trend in criminal law of imposing mandatory sentences, and in judicial review of making it more difficult and potentially much more expensive to challenge the lawfulness of decision-making by the state or its agencies. On these matters, the Joint Committee on Human Rights has been forthright in its criticisms, but the Government, as ever, merely shrug them off.

Part 1 of the Bill, whose objectives of protecting the public we entirely endorse, contains provisions which exemplify the failings that I have mentioned. Thus, Clause 4 will require an under-resourced and overstretched Parole Board to be involved in determining whether prisoners serving extended sentences should be released, as automatic release rules are changed. What proposal do the Government have to provide the Parole Board with the additional resources that it needs to cope with its present workload, let alone that which would flow from the provisions of this Bill?

Clause 6 makes electronic tagging mandatory for offenders released on licence, under regulations to be prescribed by the Secretary of State, despite the lamentable experience of the current tagging system, which is used essentially to check whether curfew or exclusion requirements are complied with. What will be the benefits and the costs of this quantum leap in the application of tagging? Do the Government accept that the code of practice to govern the use of tagging will be subject to parliamentary approval? Will a draft be available for the Committee stage of this Bill, or at least on Report? Clause 7 imposes extra work on the Parole Board in respect of prisoners recalled from release, when what is surely needed is effective supervision of such prisoners. Clause 8 gives the Secretary of State the power to change the test for release after recall by regulation, when this should surely be done by primary legislation.

Part 2 of the Bill deals with young offenders. I will come later to the question of secure colleges, but I welcome Clause 32, which requires the presence of an appropriate adult when a youth caution or youth conditional caution is given to someone under the age of 17. I join the Magistrates’ Association, however, in requesting guidance on the definition of an appropriate adult. Part 3 will allow minor offences to be dealt with it on the papers by a single magistrate—in effect, in chambers—where a defendant has not requested a hearing. My noble friend Lord Ponsonby will speak to this issue, but having only last Friday met magistrates of the Northumbria Bench, I incline to the view of those who say the defendant should have to agree to such a course, where appropriate, after proper advice. After all, not everybody who receives a court communication will be able to understand it. I am also sympathetic to those who say two magistrates should sit on such cases, although perhaps there should be an experiment to see whether there is a satisfactory outcome with a single magistrate. In any event, disposal should be in public, not necessarily in the traditional court room, so that justice can be seen and reported to be done.

A more troubling proposition is contained in Clause 42 in relation to criminal court charges—to which the Minister referred—under which offenders should be made to pay towards the cost of running the courts. This clause is a classic example of the Government’s casual approach to legislation. The requirement is mandatory, when it should, if imposed at all, be discretionary and decided by the judges. There is no impact assessment, either on the offender or the cost of enforcing the system. It ignores the risk that people may plead guilty, at least to the less serious charges, on financial grounds; and ignores both the reality of life for offenders and the system’s present inability to deal with unpaid fines and confiscation orders.

The Prison Reform Trust points out that offenders are twice as likely to have employment problems as the average, four times as likely to have housing problems, 13 times as likely to be homeless, and three and a half times as likely to be in debt. Meanwhile Justice points out that Her Majesty’s Courts and Tribunals Service is owed £2 billion— including £1.3 billion in unenforced confiscation orders—and in 2010 the debt for criminal penalties was £608 million, two-thirds of which had been outstanding for more than 12 months. One might have thought that the Government would give priority to collecting these debts, rather than creating this new provision.

Finally in Part 3, I mention the belated inclusion in Clause 45, no doubt once again at the behest of the Conservative Party’s friends and supporters in the insurance industry, of yet another mandatory requirement, namely that if the court in a civil case is satisfied on the balance of probabilities that a claimant has been “fundamentally dishonest”—whatever that means—in relation to his claim, it must dismiss the claim unless this would cause substantial injustice. Again, this is presumably a moveable feast. Of course, a court can already penalise a claimant in costs if it is satisfied that a claim has been exaggerated but, more to the point, this is an entirely one-sided sanction. A defendant behaving in similar fashion would suffer no penalty, even though such conduct in a personal injury claim could itself add to the claimant’s suffering.

I now turn to the two most controversial elements of the Bill: secure colleges and judicial review. In relation to the former, the Government’s transforming rehabilitation programme appears to have failed. The Secretary of State has reoffended. There is an uncanny similarity between what happened over the probation service in the Offender Rehabilitation Act and this proposal. Once again, the Government are pressing ahead with their policy in advance of parliamentary approval, although at least it has not been left to Members of this House—as it was last year with probation—to ensure that the matter is debated. Yet the Government are appointing a contractor, before the Bill is enacted, to build a 330-place college. Admittedly, it will not be built before the Bill is enacted but, even so, one might have thought that this was somewhat premature. The important point, however, is that such a college would account for as many as a quarter of young offenders in detention. The objective of providing education is of course welcome, but it is self-evident that many youngsters would be a long way from home, and there are serious questions about the desirability of housing girls alongside boys and the youngest offenders alongside those in their later teenage years, as the Joint Committee on Human Rights has pointed out. There is also the question of cost. The Prison Reform Trust legitimately asks where the £85-million cost is coming from.

More important is the apparent determination of the Government to rely once again on some private sector provider to run the establishment and, significantly, to confer on it and its employees the right to use force to maintain good order and discipline,

“if authorised … by college rules”,

as set out in Schedule 6. Who will make these rules? Will they be subject to parliamentary approval, and if so by which method? Why have the Government rejected the advice of the Joint Committee on Human Rights that the use of force on children and young people for the purpose of good order and discipline is incompatible with Articles 3 and 8 of the European Convention on Human Rights? Why will they not adopt the committee’s obviously correct formulation that secure college rules should,

“only authorise the use of reasonable force on children as a last resort; only for the purposes of preventing harm to the child or others, and that only the minimum force necessary should be used”?

We have heard too many disturbing accounts of excessive force being used by private contractors on inmates of Yarl’s Wood and on deportees to countenance the possibility of similar actions in secure colleges. This policy—the objects of which we of course agree with—needs rethinking The Government should pilot a much smaller scheme with a narrower age range, close to where the children come from. It is difficult to avoid the suspicion that, as with the larger adult prisons the Government are bent on building, they are more concerned with reducing per capita costs than providing the necessary services at an appropriate and local level. Wholesaling and warehousing large numbers of damaged and vulnerable youngsters is not the way forward.

Finally, and perhaps most disturbingly, we come to Part 4 and the Government’s latest efforts to undermine judicial review. The Government are very deliberately making it much more difficult to challenge the lawfulness of decision-making, at least for those with limited financial resources. I have already disposed of the bogus claim that the current case load is excessive. Let me now deal with the barriers that are being deliberately being put in place to obstruct access to justice in this area, so vital to our democracy and system of government. Let us not forget the fences already in place in the form of restrictions to legal aid and on the payment of fees for preparatory work, which so often leads to matters being satisfactorily resolved without proceeding to trial. Once again substituting their judgment for that of the judiciary, the Government, in Clause 64, impose a mandatory requirement to refuse relief at the permission stage,

“if it appears … highly likely that the outcome … would not have been substantially different if the conduct complained of had not occurred”.

How can the court do that without a full consideration of the case? In that event, where is the saving? How, given that legal aid is not available for that stage, can a claimant make his case? Moreover, if procedural or legal errors are made, there must be some mechanism by which those failures can be challenged, even if the ultimate outcome is the same. That is what the rule of law requires.

Clauses 65 and 66, to which the Minister referred, deal with the finances and membership of applicants and organisations and require the court to take that information into account when determining costs—another mandatory imposition, clearly designed to discourage organisations and supporters, including, as Liberty points out, charities, solicitors acting pro bono or even family members, from supporting a claim where no legal aid is available. That principle is extended by Clause 67 to interveners: those who, after applying for the leave of the court to intervene to take part in the case—a necessary step—can then be required to pay not only their own costs but any costs incurred by other parties as a result. Only exceptional circumstances, typically not defined, but originally to be defined by secondary legislation, would avoid this. However, the court already has discretion in these matters. Why include this provision at all, except as a deterrent? We are talking, essentially, about public interest intervention, not individuals pursuing their own interests. In the Bill as it stands, there is a clear threat to organisations such as Liberty, Justice and the Howard League, which have played such an important part in defending the rule of law. I very much welcome the promise the Minister has made today. I hope there will be a judicious review of an injudicious proposal and that we will have an opportunity to see the results of that in Committee.

The Secretary of State has claimed that pressure groups use individuals as “human shields” to challenge the Government—a claim rejected by the Joint Committee on Human Rights and the Public Bill Committee. Moreover, as Liberty points out, the court has discretion as to whether to allow an intervention. We look forward to hearing the outcome of the Minister’s latest deliberations.

Two further matters that relate to costs are contained in Clauses 68 and 69. Cost-capping orders for claimants are welcome, but crucially can be made only on application after the permission stage. Much work will have been done up to that point and there will be no protection from liability for costs for an applicant if unsuccessful. That is no great problem for a developer seeking judicial review against a local authority, but it is quite otherwise for an applicant of modest means or a charity. The provision that secondary legislation may specify the ingredients of a public interest claim is absolutely unacceptable, especially as the Government are likely to be the defendant in many judicial review cases. Clause 69 once again imposes a mandatory duty to limit the costs that can be recovered by an applicant with a controlled costs order, thereby creating reciprocal costs protection to the defendant entirely irrespective of means. Equally, that is an entirely unreasonable fettering of the existing judicial discretion.

As I have said before, despite the assurances of the Minister, judicial review, like legal aid, is being deliberately dismantled. Characteristically, the Minister has given a lucid exposition of a deeply flawed Bill. The Opposition will work with others across the House to improve it where we can and oppose those provisions that we cannot. There are thoughtful Members on the government Benches who must share some of the misgivings that will be voiced around the House today. I hope we can work together in the interests of justice to improve this legislation.

15:48

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we come to the Bill at a time when crime is falling. In 2013, according to the Crime Survey for England and Wales, there was a 15% fall in crime overall to its lowest level in more than 30 years. The fall in violent crime has been particularly marked. It has fallen for each of the past five years, which is profoundly welcome. What is more, with the rehabilitation revolution and the measures we took last year in the Offender Rehabilitation Act, I believe we have started to tackle the scourge of persistent reoffending that has blighted the lives of so many of our young people. On these Benches we are particularly proud of the contribution in this area made by my noble friend Lord McNally, who I am delighted to see in his place today. I know the whole House welcomes his inspired appointment as chairman of the Youth Justice Board. In the criminal justice field, the Bill should be judged by its contribution to cutting crime in general further, and in particular to helping young offenders avoid reoffending.

The Bill creates new offences, which we welcome. The most significant proposals are those to make ill treatment or wilful neglect by care workers a specific offence and to create another offence for care providers of gross neglect of their duty of care. Those in their charge have a right to expect to be looked after professionally, carefully and compassionately. We have all been appalled by the many recent accounts of lack of care in care homes and hospitals. Mid Staffordshire, which was mentioned by my noble friend, Winterbourne View in Gloucestershire, and the care homes in Essex and Croydon recently exposed by “Panorama” are but other examples of what has too often become regular cruelty by carers, often attributable to systemic failures in the organisations that employ them. My right honourable friend Paul Burstow in the other place has worked hard in advocating such provisions as are now proposed. His expertise on the subject and his commitment to better care are well known. These new offences will help to prevent such ill treatment and neglect, and to deal effectively with these terrible cases where they occur.

A further specific offence of police corruption may add only a little to the existing law, but it will serve to make it clear to police and public alike that police officers are entrusted with special powers, that they hold a position and role in society that makes it incumbent upon them to observe the highest standards and that, if they should fall short of those standards and act corruptly, they can expect to be dealt with severely.

We also welcome the proposal that images of rape are to be classified as pornographic. That is obviously right, and the proposed defence that acts portrayed were in fact consensual strikes a reasonable balance. We will, however, seek to add a new clause outlawing so-called “revenge porn”—that is, putting intimate pictures of former lovers on the internet without their consent. This nasty practice, if not curbed by law, threatens to become more widespread with the advent of high-definition video cameras on phones and cameras built into glasses. Such mean acts of revenge can have profound and devastating effects on their victims’ lives, causing deep distress, often psychological illness and havoc within personal, family and work relationships. In the other place, my honourable friend Julian Huppert suggested making this practice an offence, and my right honourable friend Maria Miller organised an Adjournment debate on the subject.

On the issue of rehabilitation, we will be looking carefully at the proposals for secure colleges. My party has been at the forefront of advocating a greater emphasis on education in custody for adults and young offenders alike. I welcome my noble friend’s commitment to education for people in custody. However, I wonder whether the establishment of secure colleges may not risk large numbers of young offenders being sent to a small number of large institutions, often far away from their homes, instead of to smaller ones with more personalised care and more links with their homes and families. I invite my noble friend to consider, with other Ministers in the department, how we can ensure that sentences served in secure colleges will not jeopardise the greater opportunity for through-the-gate support, which we have been at such pains to provide and encourage for offenders close to their communities before, as well as after, release.

For my part, I am also unclear how meaningful courses are to be organised in secure colleges. Offenders are, after all, sentenced all year round, not just at the beginning of college terms. Their sentences also vary in length. I am concerned that college-style courses may simply not work for many offenders. We look forward to the consultation promised by my noble friend on the secure college rules. My noble friend Lady Linklater will deal further with this topic in due course.

If we have a general criticism of the Bill, it is that too many proposals in it would remove or limit judicial discretion. It seems to be infused with a lack of trust in our judges. I regard some of the proposals as presenting a real danger of injustice in cases which should be dealt with on an individual basis, not by the application of a blanket rule regardless of the particular circumstances.

The proposal in the Bill that I fear most risks injustice is that for a mandatory sentence of six months’ imprisonment for adult offenders, and four months for 16 and 17 year-olds, for a second offence of possessing a knife in a public place. This was proposed as an amendment in the House of Commons from the Conservative Benches by my honourable friend Nick de Bois. Regrettably, Labour MPs lined up alongside the Conservative Back-Bench Members to support it. Liberal Democrats in the Lower House opposed the amendment and we will do so again in your Lordships’ House.

Of course knife crime is extremely serious and we must come down very hard on it. In many cases where an offender repeats an offence of possessing a knife in a public place, he or she will richly deserve a custodial sentence, but that should be for judges to decide on a case-by-case basis. Compulsory custodial sentences are the wrong way to deal with the issue. They stop judges deciding who deserves prison and whether prison will do any good in a particular case. They threaten to affect young black people disproportionately because more of them are subject to stop and search. There is no proof that compulsory prison works. As my honourable friend Julian Huppert said in the Commons:

“The question … is whether we should do the thing that sounds the toughest or the things that actually work”. [Official Report, Commons, 17/6/14; col. 1034.]

We have put all our emphasis in this Parliament on keeping young offenders out of prison where we can and rehabilitating them to lead useful lives in the community. Compulsory sentences are costly and overcrowd our prisons. This is a retrograde step for rehabilitation.

It is true that the Bill would permit a court to refrain from passing the mandatory sentence if,

“the court is of the opinion that there are particular circumstances which … relate to the offence or to the offender, and … would make it unjust to do so in all the circumstances”.

But that only serves to make my point: if a particular circumstances exception is to be widely applied, it makes a nonsense of the provision for mandatory sentences; if only rarely applied, serious injustice is caused in a number of cases. We are not persuaded that there is any justification for this approach beyond, I regret to say, a desire to appeal to a populist press with an eye-catching message that we are tough on knife crime.

We are also concerned about the compulsory imposition of a criminal courts charge upon conviction, even for offenders who cannot afford it and for whom employment prospects may be affected by the existence of an outstanding charge because they cannot get credit and they are concerned by the effect on their earnings. I am concerned about the proposal that a court must dismiss the whole of a personal injury claim if it is tainted by fundamental dishonesty. As someone who has conducted many personal injury cases over the years for both claimants and defendants, my experience is that dishonesty in the presentation of personal injury claims is, regrettably, not uncommon. Defendants can often produce convincing evidence, with the aid of video surveillance or otherwise, to demonstrate that the degree of injury allegedly sustained by claimants, and the consequences of such injury, have been wildly exaggerated.

For my part, I have always believed that in appropriate circumstances, judges should have the power to throw out an entire case for extreme dishonesty or to reduce awards of damages to reflect the court’s view of such dishonesty. However, there are many cases which are affected by what might reasonably be described as fundamental dishonesty where the needs of the claimant for the rest of his or her life must come first and in fairness must be met, and where completely depriving the claimant of damages would be very wrong. But instead of giving a judge a discretionary power to reject an entire claim or reduce damages to an appropriate extent, this clause would provide that the court must dismiss the claim unless satisfied that the claimant would otherwise suffer substantial injustice. Once again, I sense a lack of trust in judges to act sensibly in the exercise of their discretion in accordance with the justice and requirements of the particular case that they are hearing.

I turn finally to the proposals for judicial review. Judicial review is the precious right of the citizen to challenge the Executive in the courts when a Government act unlawfully or exceed their powers. The law has been developed, as my noble friend said, over recent decades into what I suggest this House knows is an effective and elegant body of law. One understands that Governments do not relish being challenged in the courts: it is inconvenient. But it is the constitutional duty of this House to protect the right of challenge and to trust our judges to deal with challenges fairly and in accordance with the law.

The measures proposed in the Bill for judicial review risk deterring people with means from supporting legal challenges by making them disclose all their assets and threatening them with widespread orders to pay the Government’s costs personally. The proposals would prevent campaigning organisations and others joining in on cases as interveners to put the public’s case by making interveners pay all parties’ costs of their intervention and by preventing them getting their costs even when they win—and ex hypothesi therefore, even when they have shown that the Government were in the wrong. Campaigning organisations would find it harder to raise money to challenge the Government in the public interest. I welcome the indication from my noble friend today that the Government are open to persuasion on these provisions, but that persuasion needs to go a long way to produce a lot of movement.

Further provisions would allow the courts to protect litigants from costs orders—the so-called costs-capping orders—against them only in cases of general public importance. But what of the innocent member of the public who has been wronged in a particular but unusual case of government irrationality—nothing of general public importance but a serious case of injustice? Why should that citizen not have costs protection if the judge thinks it right that he should? In all these cases, as the noble Lord, Lord Beecham, pointed out, judges have at the moment appropriate powers in relation to costs and judges decide how they should best be exercised.

We will also wish to consider how far the proposed permissive power to make regulations to exempt environmental judicial review cases from the restriction on cost capping complies with our duty under the Aarhus convention to provide access to justice in environmental cases that is

“fair, equitable … and not prohibitively expensive”.

That will be difficult when the Aarhus Convention Compliance Committee has found that under our existing rules, the United Kingdom already fails that test.

There is no evidence that our judges let frivolous challenges or challenges that are of academic interest only because they make no difference, consume public resources unnecessarily. There is no established need for the cost deterrents in Part 4, and a justified fear that they will stifle legitimate cases. We will scrutinise Part 4 very carefully and resist unwarranted intrusions by legislation into areas that are best left to judicial discretion, particularly where what is at stake is the citizen’s right to hold the Executive to account in our courts.

16:04

[Lord Lloyd of Berwick (CB)]

My Lords, we have just listened to two very powerful speeches, which have covered the whole scope of the Bill. For my part, I shall concentrate only on Part 1, in which there is much to criticise in detail when we come to Committee. Taken as a whole, I find Part 1 profoundly depressing. We have 28 new clauses full of new offences and increased penalties at a time when, as the noble Lord, Lord Marks, demonstrated, and as we all agree, crime is actually falling and the prisons are full.

When I became a judge, not so very long ago, there was a prison population of 35,000. It is now 85,350. How can such an increase be explained, let alone justified? Mr Grayling says that there is no crisis because he has 1,000 spare prison places. However, the story from individual prisons is very different: Wandsworth is currently operating at 169% of capacity while Durham, which was built for just under 600 prisoners, currently accommodates 940. Mr Grayling says that there has been an unexpected increase in the demand for places and has suggested that one reason might be the number of recent convictions for historic sex offences. I would like to suggest a much more likely reason. Home Secretaries, as we have seen, have an itch for taking a hand in sentencing—and now, to Home Secretaries of the past, we have to add the Lord Chancellor.

I will give an example of what I know from my own experience. In the old days, the tariff in murder cases was fixed, or I should say recommended, by the trial judge, and the Lord Chief Justice would add his comments. Sometimes, the Home Secretary would accept the judicial recommendation, but in most cases he did not, for no very good reason that I could see. Then came the case of Anderson in the House of Lords, in which it was held that sentencing was the province of judges and not the Home Secretary, who must therefore play no part in fixing the tariff.

Mr Blunkett, who was then Home Secretary, had a riposte: Schedule 21 to the 2003 Act. Under that schedule, an elaborate framework has been created within which judges are now required to operate. There are four different starting points, and lists of aggravating and mitigating factors which sometimes, as we have seen recently, conflict. I have never understood the reason for Schedule 21. But I have no doubt at all as to its effect. It has increased the tariff in murder cases from 13 years, as it was, to 17.5 years, as it is now. We now have more persons serving life sentences than in the rest of Europe put together—about which I hope we will be hearing later from my noble friend Lady Stern.

However, none of this seems to worry Mr Grayling—like Gallio, he cares for none of these things. As he said recently, he makes no apology for the fact that, under this Government, there are more people going to prison than ever before, and for longer sentences. How very different he is in that respect from his predecessor, Kenneth Clarke. It was one of Kenneth Clarke’s objectives as Lord Chancellor to reduce the prison population. One of the ways he set about doing that was to repeal Section 225 of the 2003 Act. That was the section that enabled—and in many cases required—judges to pass indeterminate sentences for the protection of the public instead of determinate sentences. That was another new idea of Mr Blunkett and I would like to say a little more about it.

The original idea was that it would apply to a small group of serious offenders—perhaps a few hundred a year at most—for whom an ordinary determinate sentence would not provide sufficient safety for the public. That was how it was described by the noble and learned Baroness, Lady Scotland, when she introduced the Bill into this House. However, the result was very different. Far more prisoners were given indeterminate sentences than was ever anticipated, many with tariffs of as little as two years or less—some as little as six months.

The Government were completely unprepared. Very few such prisoners were being released as they could not get before the Parole Board and, in the test case of James and others, the European Court of Human Rights held that in these circumstances their detention was arbitrary and therefore unlawful. In 2007, Section 225 was amended so as to stem the flow of new inmates, but it was too little and too late. By 2012 there was no alternative but to repeal Section 225 altogether. Kenneth Clarke described it as having been a stain on the system, and so it was.

However, in the mean time, a huge backlog had built up. Currently there are 5,500 prisoners serving IPP sentences of a kind that could not now be lawfully imposed. Of these, 3,500 have already passed their tariff with little hope of early release. The present rate of release is running at about 400 a year. At that rate it will be nine years before the backlog is cleared. That is the position in general, but I am particularly concerned about a group of 773 prisoners who were given tariffs of two years or less in 2007 before Section 225 was amended. If they had been sentenced in 2008 instead of 2007, they could not have been given IPP sentences, so they would by now be out of prison: indeed, they would have been out of prison long ago. Yet they are still in prison.

Some 275 of them are five years or more over tariff; some as long as eight years over tariff, including 37 where the tariff was less than six months. Can nothing be done for these people to speed up their release? The answer the Minister should give is, “Yes, something can be done”. When Parliament repealed Section 225 in 2012, it was well aware of the backlog that had been created and of the need to so something about it. So Kenneth Clarke introduced a new clause giving the Lord Chancellor the power to alter the release test in the case of IPP prisoners. It need no longer be the same for other lifers, as it had been and as indeed it still is; nor need it even depend on an assessment of risk.

This new power is contained in Section 128 of the 2012 Act. It is obvious that it was included in the Act for one purpose only: to speed up the release. I have no reason to doubt that if Kenneth Clarke were still Lord Chancellor, he would have exercised the power contained in that provision. He had already described the existing state of affairs as unfair and unjust, for the very reasons that I have mentioned.

Some time—very soon—after Mr Grayling became Lord Chancellor, I asked him whether he intended to exercise the powers that he had been given by Parliament to deal with the backlog. He said that he had no such intention. The only reason he has ever given is that it would not be right or appropriate to interfere with the sentences lawfully imposed by the judges. However, in the case of the 773 prisoners given sentences of two years or less, that reason will not hold. In their case, the judges had no discretion one way or the other; they were bound to assume dangerousness until Section 225 was amended in 2007.

Mr Grayling must surely find some better reason for not exercising the power he has been given in relation to those prisoners. Nobody is suggesting that he should release prisoners who are “dangerous” in the ordinary sense of the word, but he should find some way of dealing with those with tariffs of two years or less under the powers which he has been given for that very purpose. With tariffs as short as that, they cannot have been among the most serious offenders.

In the case of 37 prisoners with tariffs of six months or less, we now know that 24 of them have a low risk of reoffending—yet they are still in prison. The matter cannot be put better than it was in a leader in the Times on 25 March. It made this point:

“The scandal Mr Grayling should address is that a process set in law”,

should be “followed in life”. I hope that Mr Grayling will do just that—not just, as the Times said, to save some £40,000 a year for every prisoner released or to reduce overcrowding but to restore to these prisoners some sense that they are being fairly and justly treated, not only with regard to their victims but as between themselves. It would thus remove what Kenneth Clarke rightly described as a stain in the system that still remains.

16:18

[The Lord Bishop of Oxford]

My Lords, I am not among those who decry the frequency with which criminal justice Bills come along. The world is changing fast and the shapes assumed by criminality change no less quickly. It is important to respond to change and to take care that the unchanging core of justice—a British value if ever there was one, as well as a Biblical value—is honoured both in the detail and in the overall direction of policy on the criminal law and its enforcement.

This fourth Bill of the present Government contains much that is welcome. For example, it makes prisons slightly safer places through allowing non-controlled drugs to be tested for at a time when some prescription drugs have become a destructive form of currency. It will also make some vulnerable people safer from the tiny minority of care workers who may ill treat or wilfully neglect them. It will increase protection from extreme pornography and appropriately raise maximum sentences for malicious communications. All that is welcome. It will ensure that cautions will be issued to 17 year-olds only in the presence of an appropriate adult. That will complete the changes made to police procedures so that all children under 18 are treated as children, which they are.

Children and young people are a particularly high priority for me as much of my time is spent supporting the causes of education and services to children and young people. For that reason, I am especially interested in the proposals for secure colleges. I hesitate to raise questions about secure colleges, since opposition to them has been authoritatively described in the other place as “bonkers”. One cannot deny the attraction of a vision of a college for children convicted of an offence serious enough to warrant detention which is just like a school surrounded by an unobtrusive fence and with a first-rate education programme. It sounds good. However, the Bill presents this vision in soft focus and with very little clarity of detail. That is where I get anxious.

The number of children in secure custody has reduced greatly in recent years, which is an achievement in itself. The children are looked after in relatively small institutions, which are small enough to focus on the individual. Even the larger young offender institutions in existence now are considerably smaller than the proposed secure colleges. Children from 12 years of age and upwards, currently held in secure children’s homes, would be in the secure college. Girls—again there are only a small number of them—would also be held there. What seems certain is that, on average, children would be held much further away from their home area than at present. We are told that specialist subunits on the college site would care for these minorities. No one quite seems to know how that would work.

One telling detail in the Bill is that it gives to secure college staff the power to use reasonable force to maintain good order and discipline. I must protest that it is legitimate to use physical constraint on a child only in order to prevent harm to the child or others. A Bill which insists on the presumption of a custodial sentence for anyone, including a child, carrying a knife might by the same token be expected to keep to a minimum the use of physical force on children by the state’s own officers.

The other important theme to which I draw attention is access to justice and the ability to hold the Executive to account for their actions. The impact of the proposed changes to judicial review has to be seen in the context of a cumulative series of changes relating to legal aid and judicial review from the time of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 onwards. Judicial review is a vital element in our system of democracy and in ensuring that elected authorities act in accordance with the law. The executive power at every level must be subject to law. In the pages of scripture, in Deuteronomy, the King of Israel is told that he must not consider himself better than his fellow Israelites or turn from the law to the right or to the left. The same applies to all public authorities at all times.

The 2012 Act reduced the eligibility threshold for legal aid and cut legal aid across many areas without affecting the funding of judicial review. Eight days after the 2012 regime came into force, the Ministry of Justice published proposals for further changes in legal aid funding for judicial review, including the introduction of a residence test. In addition, new rules on time limits may well further limit access to justice. It is disturbing when the Bar Council says that when combined with other recent government measures for changing the law of judicial review, these changes, if enacted in their current form, will immunise government and other public authorities from effective legal challenge.

Where there has been a case for the overuse of judicial review, in planning or immigration matters, for example, changes have already been made. It is no longer possible to sustain the claim that there has been massive expansion in judicial review cases requiring urgent action. Nor is there evidence that the permission stage in judicial review has become too lax, letting through groundless claims.

It is important that the system strikes a balance between the interest of claimants and defendants so that justice is done. The proposals in the Bill risk tilting that balance too far in the direction of the defendant. The charge that judicial review has become a campaigning tool for pressure groups does not seem to be recognised by those who know the field well. The Bill’s proposals would raise the threshold for bringing a case, and in various ways would increase the financial risk for those bringing a case and for charities and other bodies wishing to intervene in a case. It seems inevitable that it will be the individuals and groups with a sufficient financial base that will be able to risk losses and enter into the judicial review process.

Many other aspects of the Bill will merit close examination. For example, we may need to consider the extra burdens to be placed on the already hard-pressed Parole Board, as has already been mentioned. The fixed-term recall for some others is another issue. At this stage, however, it is the proper care of troubled children and the ability of people with fewer material resources to challenge decisions of those with executive authority that I wish to emphasise as legitimate concerns for the House.

16:26

[Baroness Campbell of Surbiton (CB)]

My Lords, I find myself in unfamiliar territory today as criminal justice is not my usual stomping ground, but I feel an urgency to raise again my deep concern about the cumulative impact of the Government’s reforms—let us call it death by a thousand cuts—on the lives of disabled people. I am aware that many fine legal minds might also be taking the Minister to task, so I will be in good company.

Less than two months ago I spoke in support of a Motion laid by the noble Lord, Lord Pannick, to regret the Government’s changes to legal aid for judicial review. Having looked very closely at Part 4 of the Bill, I realise how critical the connection is between these two debates.

The Government have presented their changes to judicial review as no more than tinkering with dusty and irrelevant procedures. Nothing could be further from the truth. Judicial review and access to justice have never been more important, particularly for people with disabilities, who, let us face it, are financially challenged. Disabled people have far more contact with public agencies, whose decisions may have a devastating impact on how we live. It is not surprising, therefore, that the means of ensuring that those decisions are taken lawfully, fairly and as Parliament intended is so highly prized. The Government tamper with it at their peril.

Much has been made of a few high-profile cases to make the case for this change. The bread and butter of judicial review is not about Richard III; it is about ordinary people and their relationship with administrative and organisational power. As I said in the Motion of Regret,

“judicial review … is about people standing up to public bodies when”—

and they do—

“they get it just plain wrong”.—[Official Report, 7 May 2014; col. 1549.]

Take the Tracey family, who established at the Court of Appeal that an NHS trust had acted unlawfully by placing a DNR—“Do Not Resuscitate”—order on their mother’s records without consulting her. In a landmark judgment, the appeal court stressed that the duty to consult is an integral part of respecting patients’ dignity. That case could have been mine. I know only too well how frightening it is to have a DNR order placed on my hospital notes. Ten years ago, I faced it myself when admitted to hospital with pneumonia. Luckily, the DNR order was spotted early, and on that occasion the situation was resolved—I am here—but I was always afraid that this could happen to other disabled people. The Tracey family judgment has gone a long way towards allaying our fears and making us feel safer—judicial review.

As noble Lords will know, I served for many years as a commissioner on the Disability Rights Commission and then the Equality and Human Rights Commission. I oversaw the cases they supported or intervened in. I know how important those cases were: for example, the decision that a local authority’s blanket ban on manual lifting and handling, which deprived two seriously disabled sisters of any control over their lives, was unlawful. That ruling has had a life-changing impact on the practice and procedures of all local authorities.

Although we are not here to discuss legal aid today, the proposals in Part 4 of the Bill must be considered in that context. The legal aid changes will make it harder for people to secure advice and representation. Increased fees already make it more difficult for those without means to access judicial review. Part 4 will introduce further barriers, and may restrict judges’ discretion to act fairly in cases that should be heard in the public interest.

I have questions to put to the Minister in two areas of these proposals. The first relates to the “no difference” test. Clause 64 will require judges to refuse judicial review where, even if a local authority acted unlawfully, the outcome would be “highly likely” to have been no different. Consider a failure by a local authority to consult the community in its decision to withdraw a service. Are the Government really asking a judge to “guesstimate” what the outcome of that consultation might have been and what disabled people might have said in response? Will he then guess how the local authority might have responded? Is second-guessing part of the judge’s role?

The second area for the Minister relates to the disclosure of financial information. Under Clauses 65 and 66, judicial review claimants will have to provide information on their financial resources before their claim can proceed. The Government say that they want to stop claimants being used as “human shields” by unscrupulous persons trying to avoid court costs. That really does not ring true to me.

Of concern is the worrying effect of these measures on poorer claimants and those who are willing to support them if they cannot get legal aid. If my cousin gives me £5,000 to help me challenge a decision about my support, will that open up the spectre of an order for court costs, putting her home at risk? What about lawyers volunteering their services pro bono? Would their gifts in kind put them at similar risk? If not, where is the reassurance in the Bill? I hope that the Minister will clarify this.

The Joint Committee on Human Rights has published a powerful critique of these proposals. I had the privilege of serving on that committee and I know how hard it works to reach a cross-party consensus on politically contentious cases. I wholeheartedly endorse its conclusion that the case for change is not made and that Part 4, if not heavily amended in Committee, should be rejected. But I am heartened today by the Minister’s comments that having listened to concerns raised on this in the other place, he may consider amendments in Committee. I look forward to holding the Minister to this when he returns in Committee, and I will be back too.

Disabled people, more than any other group, have experienced the cumulative burden of myriad government reforms in recent years. Please let us not make access to justice the final injustice.

16:35

[Lord Hunt of Wirral (Con)]

My Lords, first I declare my interests as set out in the register, in particular as a practising solicitor and partner for the last 46 years in an international commercial law firm, DAC Beachcroft. I am also very proud to be vice-chairman of Justice. I am relieved and pleased to see in her place the chair, the noble Baroness, Lady Kennedy of The Shaws. I know that she will deal with some of the points, in particular those just raised by the noble Baroness, Lady Campbell of Surbiton, because Justice is concerned that the Bill raises significant issues in its proposals for the change to criminal and civil law regarding access to justice. I think we all want time to reflect on what the noble Baroness said about Clauses 64, 65 and 66, and we look forward to hearing the Minister’s reply.

I wish to concentrate on two areas, referred to by the noble Lord, Lord Beecham, from the opposition Benches. I would first like ask him why he looked at me so critically when he said “cavalier”. I am not quite sure why he did this. I could respond by saying that it takes a Roundhead to spot a Cavalier, but I would not dream of doing so.

[Lord Beecham]

The noble Lord makes precisely the remark I was about to make. I was not conscious of looking at the noble Lord. A cat, of course, may look at a king. I hope I may look at the noble Lord occasionally.

[Lord Hunt of Wirral]

I am relieved, mainly because I always pride myself on being a master of the single entendre, so I am happy I did not go down that route.

I formally welcome the Bill as an opportunity continually to revise the law. In many respects this House points out, as the noble and learned Lord, Lord Lloyd of Berwick, did once again, that we must be very careful about passing new laws and new provisions, but we must always reflect on how we can improve the existing law while always avoiding the law of unintended consequences. I suppose I could slightly misquote Socrates by saying that good people do not need laws; bad people will always find a way around them. Therefore, we must proceed with caution, particularly when we create new offences.

If I could I will also add my own experience of speaking from the opposition Bench on the Compensation Act 2006, when the regulation of claims management was first brought in. Kevin Rousell has done a magnificent job with limited resources in running that unit. It was always agreed from this Bench by the then Minister, the noble Baroness, Lady Ashton, that the claims management unit within the Ministry of Justice would act as a sort of temporary regulator and eventually the Legal Services Board would take on the responsibility for proper regulation. I know that some of my noble friends have elsewhere urged that it should be the FCA that takes on responsibility, but I think we have to deal with proper and effective regulation of claims management companies.

The claims farmers allege that I have a vendetta against them—and I plead guilty, because I think that some of them are responsible for the most outrageous practices. The noble Lord, Lord Marks, referred to the element of fundamental dishonesty, to which I shall return in a moment. When we get these phone calls and text messages when we have not had an accident, let alone a whiplash injury, urging us to bring a claim and being assured that we can get money and that it will not cost us a penny, I really think that we have to take further measures to regulate the sector.

The Bill is significant and far-reaching, and I want to concentrate first on Clauses 17 and 18. Once again we had a gap in the law. As one of my colleagues pointed out, in effect this is legislation to fill an odd gap, whereby a carer could wilfully neglect or ill treat an incapable patient and be criminally prosecuted for it but commit the same act in relation to a capable patient and have no obvious route to criminal sanction. That was the gap. We are now moving in another direction, where we must be careful about the law of unintended consequences. This new offence—in particular, the addition of a provider level, which is in effect a corporate offence—is a significant addition, augmenting the Care Quality Commission’s regulatory breach channels of sanction and duplicating the Health and Safety Executive’s regulatory sanctions against corporate bodies and directors. So we have to think through how we make sure that we avoid doing exactly the opposite of what is intended.

I urge on my noble friend the Minister the need for clear advice to the sector and the police. In particular, how is it decided that the differences between these three offences, or perhaps even four offences in some cases, should be clearly laid down? How is it to be decided which cases go into which investigative process? A provider could face three or four investigative threats arising from a single event. How well formed is that necessary clarity? I agree with my noble friend that we have to do something; we cannot allow the situation to develop whereby people who are guilty of very serious acts are able to escape unpunished. Equally, we must heed those in the professional organisations who point out that there has to be a need for the Crown Prosecution Service to develop clear guidelines as to the circumstances in which prosecution will follow, to quote the BMA,

“to provide care workers with the assurances they need to encourage incident reporting”.

It is an area on which I hope we will focus when we go into Committee.

I move on to the other part of the Bill that appeared for the first time at the last moment in the other place. Clause 45 is called, “Personal injury claims: cases of fundamental dishonesty”. It is very difficult to disagree that when someone has been fundamentally dishonest they should not be punished in some way. As with claims farmers, we have seen far too much of this dishonesty, so to stop someone who has a valid claim from exaggerating any part of it, which is the deterrent effect of what is proposed, is an admirable intention. But what does it mean to be fundamentally dishonest? What is the difference between dishonesty and fundamental dishonesty? Is it a civil standard of proof? To impose a criminal standard of proof would make it extremely difficult to bring any defence on this basis.

We also have the situation, which I have known in my career as a practising solicitor, where quite often an overzealous claimant lawyer will include all sorts of areas of claim for which the claimant probably never had it in mind to sue and perhaps will link subsequent injuries to the original accident, when they were clearly due to something that happened afterwards and independently. How are we going to deal with a genuine injury that has nothing at all to do with the incident that has given rise to the claim?

I do not say for a moment that we are opening up Pandora’s box, because I strongly support the view that we have to eradicate dishonesty from civil claims. However, we have to proceed carefully and with caution, and there may be a need for clarification and further amendment.

I say this as someone who practises in this area: we do often see genuine claims. However, as many noble Lords pointed out in previous debates, we are seeing far too many exaggerated claims and claims that have no real fundamental basis for litigation. Therefore I particularly want for all those concerned in this area a clear message that dishonesty is not to be tolerated. If that message can be strong enough, we will have achieved something.

Finally, as far as the National Health Service is concerned, we are seeing very substantial claims for future care, some of which dwarf the rest of the claim and which are far bigger and more extensive than I ever experienced when dealing with matters like this, where I often found that the person who was injured was far better off in a hospital that dealt with similar cases—whether it was a broken neck from jumping into a swimming pool or something of that nature—and being alongside people with a similar injury, rather than being allowed to develop a whole hospital around their home.

We have to be mindful of the Chief Medical Officer’s report, Making Amends. It was a long time ago, but at the time we all welcomed it when he said that it was necessary to review again Section 2 of the Law Reform (Personal Injuries) Act 1948. I think that time is now upon us. I also urge my noble friend the Minister to consider, as he looks at personal injury claims of this nature generally, introducing some form of capping, so that much needed money, particularly in the National Health Service, is not diverted into dealing with very substantial claims for future care but is far better directed to the necessary rehabilitation that so many of us have supported for so long.

16:47

[Lord Paddick (LD)]

My Lords, I am concerned about the general thrust of this Bill. As my noble friend Lord Marks of Henley-on-Thames and the noble and learned Lord have already said, that general concern is what appears to be a withdrawal of power and discretion from judges and handing it to Ministers.

There are particular provisions I want to speak about. The noble Lord, Lord Beecham, criticised the Government for headline-grabbing measures. I hope that the Labour Opposition are not going to support headline-grabbing measures that suit their advantage and will actually oppose some of those measures that I think are headline grabbing, the first of which is Clause 23 on the corrupt or other improper exercise of police powers and privileges. Members of the House may wonder why I am speaking about this. Having been a police officer for 30 years, I thought that it might be obvious. I do not think that I can be accused of being an apologist for the police service. Anyone who thinks that should see last week’s “Panorama” programme. Indeed, I was one of the parties who took the police to judicial review over the phone hacking issue, and I will come back to that in a moment.

A number of cases concerning police misconduct have recently come into the public consciousness—one was mentioned by the Minister in his opening speech. However, the one recent case that resulted in a prosecution was that of a police officer for misconduct in a public office. Although the police officer was off duty, the case was successful and he was jailed. Therefore, I have two questions for the Minister. Like my noble friend Lord Marks, I accept that the police have special powers, but is the measure necessary at all in that there is an overlap with misconduct in a public office, which appears to be entirely adequate to cover the matters in the new provision? I am a liberal and I believe that we should have new laws only if they are absolutely necessary.

Secondly, if a new offence of misconduct in a public office is necessary, why have police officers alone been singled out for this offence? Other people who hold public office have similar powers—for example, immigration officers and officers from Her Majesty’s Revenue and Customs. If we are talking about access to confidential information that might be given inappropriately to the media, we should note that people working in the intelligence services and the Ministry of Defence also have access to such information. Indeed, what about the conduct of politicians? We have powers and privileges and some of us have been found to have allegedly offered to ask Parliamentary Questions for money or claimed expenses to which we are not entitled. However, these new provisions do not cover any of that. Will the Minister therefore please reassure the House that the police are not being unreasonably singled out by this proposal? In his opening remarks, he said that the existing offence of misconduct in public office was not always best suited to dealing with corruption. I would be grateful if he would elaborate on what that means.

Clause 25, which was introduced by way of an amendment in the other place, concerns the possession of an offensive weapon or bladed article in public or on school premises and the imposition of a mandatory custodial sentence. Consistent with my general concerns about the Bill and the removal of judicial discretion, not only does this clause compel judges to impose an “appropriate custodial sentence”, it goes on to define what that sentence is. The whole point of having judges, social workers, the probation service and, in some cases, medical experts providing reports on the backgrounds of those convicted of offences is to ensure that custodial and non-custodial sentences imposed by judges are appropriate. I also suggest that the imposition of a fixed custodial sentence in criminal proceedings without taking into account the antecedents of the accused should never be considered an appropriate custodial sentence. One has to ask what is the purpose of imposing such a draconian and inflexible punishment? In my considerable experience as a police officer, criminals rarely, if ever, think about what the likely penalty will be before they commit a crime because they do not anticipate getting caught.

In support of this amendment, some have quoted the current Commissioner of Police for the Metropolis, who says that he met offenders in a young offender institution and they told him that they no longer carried guns because of the mandatory five-year sentence for possession. Rather than a single anecdote, a colleague of mine conducted academically rigorous research with young offenders at the same institution, albeit some time ago. Most of them did not understand how they found themselves incarcerated—let alone that this was a possibility at the forefront of their mind when they committed street robbery. Surely the purpose of any legislation relating to the carrying of knives and other offensive weapons must be to reduce the rate of offending and reoffending. Even with longer sentences, any beneficial effect of a custodial sentence is often thwarted by the overcrowding in prisons—a problem that will only be made worse by measures such as this. What is likely to have the most beneficial effect on knife crime is to create the realistic belief in the mind of offenders that they will be caught.

In order to improve the chances that this will happen, the police need to work closely with people in communities prone to this type of crime, who know who the knife-carriers are, and who need to be encouraged to pass on such information to the police. If these members of the public believe that their son, partner or friend will definitely be sent to prison if found in possession of a knife, they are even less likely to provide that information to the police than they are now. In the absence of such specific intelligence, the police have to resort to the type of stop-and-search operations that create division and resentment between the police and their communities. Making detection more, not less, likely and allowing judges to tailor sentences in a way that they consider offers the best chance of rehabilitating the offender before them, rather than an inappropriate short-term sentence that is unlikely to prevent reoffending, must be a much better way forward.

Finally, on a very different issue, I want to express my concern about the proposed changes to the provision of information about financial resources in relation to judicial review, contained in Clause 65. The new provision requires that the applicant for judicial review declares not only how the application will be financed but,

“information about the source, nature and extent of financial resources available, or likely to be available, to the applicant to meet liabilities arising in connection with the application”.

Again, I want to speak about my personal experience. As we have learnt over recent years and were reminded last week, evidence came into possession of the police that many people had potentially been the victims of phone hacking by News International, including me. Yet the police not only failed to properly investigate those offences first time round, apparently for reason of “lack of resources”, they also failed to tell the potential victims that they had identified them as potential targets of illegal phone hacking. In a police decision log relating to the case, a decision is recorded that these victims should be informed. There is no subsequent decision recorded that the police should not inform victims, and there is no explanation to date about why that original decision was not implemented.

I and other victims, including the noble Lord, Lord Prescott, decided to ask for a judicial review of, among other things, the police decision not even to inform the victims of potential phone hacking, as we felt that there was a fundamental principle here about the right to a private and family life, and the police’s responsibility to help such victims to protect their privacy. The noble Lord, Lord Prescott, put it more eloquently: “They should have told us to watch our phones”. Thankfully, our lawyers were equally incensed and agreed to work under a conditional fee agreement, but insurance against the costs payable to the other side if the case failed is very difficult to secure in such cases, and in this case it proved to be impossible.

Again thankfully, a rich benefactor agreed to underwrite the other side’s costs in the event of our losing the case, but on the strict agreement that his identity would not be revealed unless and until it was necessary to do so. We won the judicial review on the point that the police had acted illegally by not informing the victims of phone hacking in these circumstances, but it is doubtful that the case would have been brought at all if it were not for that benefactor. When I discussed the Bill with my lawyers, they questioned whether the proposed legislation would apply where costs are simply underwritten rather than when payment is made before the case proceeds. I should be grateful if the Minister can clarify whether a case such as mine would be affected by these new proposals.

It appears to me that important cases—my case is but one—are not going to be heard in the courts and important points of law are not going to be established if the Bill is passed as it stands. I wish my noble friend the very best of luck in reassuring me and this House on the issues I have raised.

17:00

[Lord Pannick (CB)]

My Lords, Part 4 of the Bill contains proposals that have the purpose, and will have the effect, of impeding judicial review in performing its essential role of ensuring that public authorities, including Ministers, act lawfully. In opening this debate, the Minister suggested that judicial review began in the 1970s. That uses as much poetic licence as Philip Larkin’s suggestion—the noble Lord recalls the quote—that,

“Sexual intercourse began

In nineteen sixty-three …

Between the end of the ‘Chatterley’ ban

And the Beatles’ first LP”.

Judges have, of course, been examining the legality of government action since the 17th century.

I have been in practice at the Bar since 1980, representing claimants and government departments in hundreds of judicial review applications. During that time, each and every Government have shown signs, perhaps understandably, of being irritated from time to time by the power of the judiciary to identify and remedy unlawful conduct. When they calmed down, however, Ministers recognised the value of what is central to the rule of law. They also had in mind a more pragmatic consideration—that they would not be in power indefinitely and they would wish their successors to be subject to the same proper constraints of the rule of law.

The current Secretary of State for Justice, Mr Grayling, is different. He has brought forward legislative proposals to control judicial review, and helpfully explained why he was doing so in an article, which I commend to all noble Lords, in the Daily Mail on 6 September 2013. This is what he said:

“The professional campaigners of Britain … hire teams of lawyers who have turned”,

judicial review “into a lucrative industry”. Judicial review, he said, is a promotional tool for countless left-wing campaigners and therefore needs to be reformed. It is a tribute to the sense of humour of the noble Lord, Lord Faulks, that in opening this debate he emphasised the need to avoid legislating by reference to newspaper headlines.

The Lord Chancellor repeated the thrust of his complaints when he spoke to your Lordships’ Constitution Committee in March. I am aware of no evidence whatever to support his basis for legislating, and, more importantly, nor is the judiciary which hears these cases five days a week. The response of the senior judiciary to the Ministry of Justice’s consultation last November was that the judges 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”.

That is not to dispute that judicial review procedures can be improved. The Fordham inquiry for the Bingham Centre for the Rule of Law made some very sensible suggestions earlier this year. What is objectionable is the wish of the Lord Chancellor to restrict the means by which the exercise of powers by himself and other Ministers are subject to review for their legality by independent judges.

Clause 64 is the first objectionable provision. It provides that courts and tribunals must refuse to allow the 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 case does proceed to a full hearing, the court must refuse to give any remedy to the applicant if that same test is satisfied. That is objectionable on constitutional grounds. The clause instructs judges to ignore unlawful conduct, and to do so in a context where the Government themselves are the main defendant. It is also objectionable because it fails to understand that judicial review is concerned not just with the narrow interests of the individual claimant had the results been different. Judicial review serves a public interest by exposing systematic breaches by public authorities of legal requirements. One of the most powerful remedies available to the court is the declaration, about which the noble and learned Lord, Lord Woolf, wrote the leading textbook. 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. This is not a question of preventing judicial reviews on “minor technicalities”, as the Minister suggested in his opening remarks. Clause 64 is also very unwise for practical reasons, because it will require the court, at the preliminary stage, to conduct a detailed review of what would have happened. That would be time-consuming and expensive, and it would promote satellite litigation.

My second concern is Clause 67, which addresses the costs of interveners in judicial review proceedings. The Minister helpfully indicated that the Government may look favourably on amendments to the clause. Let me explain why that would be very wise. Very often in judicial review cases the court allows a person or body to intervene because it has knowledge or experience that may assist the court in deciding the case. However, Clause 67 says that interveners may not receive their costs for doing so, other than in “exceptional circumstances”. More troublingly, it says that, unless there are exceptional circumstances, the intervener must pay any costs incurred by a party as a result of the intervention. That is wholly unnecessary. The current position is clear and fair: the court has a complete discretion over whether to allow an intervener to appear, whether to order a party to pay the intervener’s costs, or whether to order the intervener to pay the costs. I am unaware of any evidence produced by the Secretary of State, or, indeed, anyone else, to suggest that there is a problem here. In any event, the provisions in the Bill are manifestly unfair. They will deter public interest bodies, whether it is Liberty, the GMC or the UN High Commissioner for Refugees, from intervening. They will not intervene if they are at risk of paying the costs other than in exceptional circumstances. The courts derive considerable assistance from these public interest bodies, and it will be greatly to the detriment of our law if this clause is enacted.

The third matter that causes me concern is Clauses 68 to 70 on protective costs orders—PCOs. In a case that raises issues of public interest and importance, the court has a power, before the case is heard, to set the maximum figure for the costs that a claimant will be required to pay should their claim not succeed. The object of a PCO is to ensure that a claimant who raises issues of public importance should not be deterred from bringing the claim by the risk of having to pay unquantified costs. At the moment, PCOs are a matter for the discretion of the court. The clauses will allow the grant of a PCO only when permission to bring a judicial review has already been granted, but the risks of having to pay the costs of a contested hearing for permission will deter these claims from being brought. That, I am afraid, is precisely the aim of the Secretary of State.

I suggest that it is also objectionable that Clause 69 would give the Secretary of State the power to decide what are “public interest” cases for these purposes and to define the factors which a court should take into account. These are simply not matters for a Minister by subordinate legislation—a Minister who is one of the potential defendants in the cases that he wants to regulate. Again, I have seen no evidence to suggest that the current exercise of these powers has caused any problems whatever, other than, of course, the general problem that government departments would rather not be the subject of a judicial review application at all.

Finally, I am puzzled by Clauses 65 and 66. Clause 65 requires the provision of information about financial resources in judicial review cases, and Clause 66 will regulate the use of information about financial resources on the assessment of costs in judicial reviews. But why single out judicial review for such provisions unlike any other form of civil litigation, and where is the evidence of any current difficulty?

All these clauses are designed to impede the effective exercise of judicial review, and, if enacted, that is precisely the effect that they will have. They all arise from a failure to understand, and indeed a complete lack of appreciation for, the very concept of judicial review as a means of holding government departments and other public bodies to account as to their legality in public before an independent judge. The judiciary has made it very clear in consultation that there is no practical need for these clauses and the Government have produced no evidence to justify them. The clauses have been criticised powerfully by the Joint Committee on Human Rights. The Government, as the main defendant in judicial review cases, are seeking to legislate in their own interests contrary to the public interest and contrary to the rule of law.

I will be putting down amendments to these clauses in Committee. I know that the concerns that I have expressed are shared around this House and outside it. I hope that the Minister and the Secretary of State are prepared for the detailed scrutiny which Part 4 requires and which it will undoubtedly receive.

17:14

[Baroness Barker (LD)]

My Lords, I wish to associate myself very strongly with the opening remarks of my noble friend Lord Marks in relation to this Bill. It is what I would call a “bits and pieces” Bill, or what in Lancashire would be called a “bits and bats” Bill, and as a consequence it will attract bouquets and brickbats. I shall start with a brickbat and then move on to a couple of bouquets, which I think it deserves.

The brickbat, as one might expect, relates to the clauses on judicial review. There are those in this House who can talk with far greater knowledge and eloquence on this subject than I ever could, but I want simply to bring to the attention of Members of this House the widespread fear that has been generated among charities such as Mind, whose role is in part to stick up for people who are often at the rough end of public law decision-making. They are very concerned about all the proposals on judicial review, and in particular about Clause 67. Charities with specialist expertise but not a lot of funding see it as a deliberate attempt to deter them from standing up for people who need support in cases that raise a wider public interest. We should bear that in mind as we scrutinise these clauses, as set out in the speech of the noble Lord, Lord Pannick—which was, I would say, a wonderful speech to listen to.

I want to go on to give the Government some deserved bouquets. One is for the inclusion of Clauses 17 to 22, which set out the new offence of ill-treatment or wilful neglect by social care providers. In doing so, I pay tribute to my colleagues in another place, in particular Paul Burstow and Norman Lamb. In the wake of the revelations of appalling abuses at Winterbourne View and Stafford Hospital, Paul Burstow mounted a diligent and detailed campaign to ensure that those who were to be held responsible and duly penalised should be not just the front-line staff, but those who own, govern and manage social care providers. Paul Burstow and the leading professionals involved in the review of Winterbourne View put together a detailed case analysing the law as it stood in January 2013.

There are many pieces of legislation under which an individual can be prosecuted if they are suspected of hurting or harming a vulnerable adult. These include the Offences Against the Person Act 1861, Section 39 of the Criminal Justice Act 1988 covering common assault and battery, and the Domestic Violence, Crime and Victims Act 2004. A great deal of existing legislation can be used when an individual is suspected of maltreating another individual. The trouble is that often it is not, because there is a wide degree of misunderstanding among professionals and the police as to which laws should apply.

Last year, the noble Lord, Lord Faulks, and I were part of a Select Committee of this House which was tasked with reviewing the Mental Capacity Act 2005. Section 44 of the Act states that it is an offence for any person to ill-treat or wilfully neglect someone who is covered by the Act; that is, someone who lacks mental capacity. There is a problem with that part of the legislation in that it is entirely possible for a perpetrator of abuse to mount the defence that they did not know that the person lacked capacity. Our committee saw that as a fundamental flaw in the legislation—a flaw that does not exist in the equivalent legislation in Scotland, where there is no need to determine that the person knew that the victim lacked capacity.

In their response to the committee, I am afraid that the Government said that they do not think there is any need to review that part of the legislation. I am disappointed with that. The noble Lord, Lord Faulks, left our committee because of his elevation to his current role. Would he consider that again and also write to me and make available to other professionals in the field of social care the clarification of how Section 44 of the Mental Capacity Act will sit alongside the new offence of ill-treatment or wilful neglect in this legislation?

The work that my honourable friend Paul Burstow has done shows that there are pieces of legislation that could be applied to corporate bodies. Section 91 of the Health and Social Care Act applies to corporate bodies that are found guilty of ill-treatment. The trouble is that the actions that can be taken against a body can be applied only to one person—the registered officer of that organisation. Using the Corporate Manslaughter and Corporate Homicide Act as the basis for his new proposals, Paul Burstow has established that even if there is no directing mind within an organisation, an offence has been committed by those managers who should have been responsible for the oversight of front-line staff. It is a good way of plugging a gap that has enabled managers and directors of care providers to walk away from their crimes completely unpunished while front-line staff have had to go to jail.

I move on quickly to the two remaining issues. One is malicious communications—the new,

“offence of sending letters etc with intent to cause distress or anxiety”.

As I sat and prepared this weekend, I read Clause 27. I thought that its wording was such that it could have been clattered out on a typewriter by Agatha Christie herself. Can the Minister clarify “et cetera” in this context? Some of us on these Benches remember when our former colleague Earl Russell asked the same question of a Minister. In this day and age, does et cetera mean tweets, e-mails, postings on websites? What does it mean? Those of us who are on Twitter know that a troll does not take pen to paper. A troll resorts to electronic communication. I would like the Minister to tell us the scope of these provisions. We are always running behind the internet in terms of our legislation and I would like to think that for once we could get it right. Out there are people, most of whom are women, suffering the most appalling abuse at the hands of individuals who at the moment think that they are faceless.

On revenge pornography, my friends in another place, Julian Huppert and Martin Horwood, have quite rightly said that it is time to make it clear that this is a criminal offence. Taking pictures in the context of a loving personal relationship and then putting them on public display is a particularly vicious violation of a person’s dignity. Again, a number of pieces of legislation could be used, but most predate the internet and are an obscure way of getting to the problem. We know that this is increasingly happening. Sites are putting up pictures and women are being extorted to pay large amounts of money to have the pictures removed. Blackmail and abuse such as this should not be part of the business model of any internet service provider or social media company. The Obscene Publications Act 1959 or the Protection of Children Act could help—but not enough and not swiftly enough. It is time to make this a criminal act and require search engines and social media companies to withdraw such material on request. We must make sure, above all, that the police are trained and equipped to see this for what it is—a horrible, horrible criminal act.

17:25

[Lord Blair of Boughton (CB)]

My Lords, I rather imagine that not many of your Lordships know that, as a young man, I wanted to be an actor. I must therefore start by acknowledging my gratitude to the Whips’ Office for putting my name in lights on the annunciator for many hours. I also apologise to those of your Lordships who have come to listen to the Statement on Europe, because I have one or two things to say. The first is that I agree with many provisions of the Bill, but the main parts of my speech will deal with two clauses that I do not think should be in it and one matter that I believe should be.

However, I must begin with an apology to the House. On 12 March this year, I asked an Oral Question of the Minister about the ban on jury research contained in Section 8 of the Contempt of Court Act 1981. The Minister and I agreed to discuss the issue and, indeed, have done so. I apologise because there is no ban on jury research for academics—there never has been and it was never intended for there to be. There is just a ban on asking individual jurors what happened in the jury room. Anonymised research on the type of case, type of court, ethnicity, gender and much more is not banned. The trouble—and my excuse for misleading the House, as it were—is that although there may not, de jure, be a ban, de facto, almost everyone thinks there is; including not only me but many Members of this House including, perhaps rather quietly, even some noble and learned Lords with whom I have spoken, before and since my Question.

I have since spoken at length with Professor Cheryl Thomas of University College London, who has conducted research in this area and on how juries work, and had it published by the MoJ. The Minister even mentioned her in his reply to my Question. However, the problem is that she seems to be almost the only person in the country who does this sort of research because most people, including most academics, appear to think it is impossible. I apologise for asking a Question that was inaccurate but I do not apologise for raising an important subject. When he replies, can the Minister agree to require the MoJ to issue, as soon as possible, new comprehensive and clear guidance on what is and is not possible in jury research and to put it on the MoJ website? This is important because, as we have seen in the past week, juries in criminal trials, and how they work, are a central and vital part of how most people view and judge the whole judicial system in the UK.

Turning now to what should not be in the Bill, I raise for the consideration of the House Clauses 23 and 24, which deal, respectively, with the corrupt or other improper exercise of police powers and privileges, and the term of imprisonment for the murder of a police or prison officer in the course of their duties. This House complains occasionally about unnecessary legislation. These clauses seem to be not only unnecessary but entirely populist and should be struck out.

I begin with the murder of a police officer or prison officer. The Government propose that such a murder, rather than being in the category of cases where the starting point on conviction is a minimum sentence of 30 years, should instead be considered in the rare category where a whole-life sentence should be the starting point. Particularly having had the experience of someone trying to kill me with a machete, I yield to no one in my view that the murder of a police officer on duty is an outrage. However, the MoJ has forgotten its history, in two ways. There is simply no evidence—no evidence at all—of the judiciary failing to accord a conviction for the murder of a police officer or prison officer on duty the utmost seriousness. In the 1980s, I served in Shepherd’s Bush police station, in whose front hall is a plaque commemorating the murder, which I am sure a number of noble Lords will recall, of three Metropolitan Police officers—Geoffrey Fox, Christopher Head and David Wombwell—in August 1966 in Shepherd’s Bush, by Harry Roberts and his associates. Harry Roberts is still in prison, 48 years after the murder. His associates are dead. What need is there, in the face of this, for a change in the law?

Secondly, the MoJ seems to have forgotten that, following the abolition of capital punishment for murder in 1965, there were continuous attempts in the years that followed to reinstate capital punishment for the murder of a prison officer or a police officer on duty. These attempts were always resisted not only by the precursor of Liberty, the National Council for Civil Liberties, but also by the police service. It was believed that a prisoner on the run after such a killing would reason that if he was to hang, he would have no compunction in killing other people, including other police officers, to escape. I disagree with the point made by the noble Lord, Lord Paddick, that some prisoners do not know what the sentence is; you know what the sentence is if it is hanging. The whole-life term is the contemporary version of hanging. This clause is not only unnecessary but capable of risking lives. It is wrong.

I turn now to Clause 23 about police corruption. This legislation is not only loosely drawn but entirely unnecessary. I am sorry to hear that the Opposition will support it. I have led investigations that have led to the conviction of police officers for corruption. Police corruption is an evil; it is a permanent and corroding threat. However, neither I nor the CPS, in my experience, has ever had any difficulty in framing charges under what was then the Prevention of Corruption Act, which would now be the Bribery Act 2010, or the common-law offence of misconduct in public office. The difficulty was not the charge but finding the evidence in a crime where all the participants do not want to tell anyone about it.

That this is unnecessary legislation is shown in subsection (11), which the Minister mentioned, which states:

“Nothing in this section affects what constitutes the offence of misconduct in public office”.

Where is the evidence that existing legislation is inadequate?

When the Milly Dowler case broke in 2011, a leader in the Times—a News International newspaper—declared that what had been revealed was “police corruption on an industrial scale”. I do not think so. Since that time, the phone hacking investigation has led to the conviction of an editor, two subeditors and three journalists or specialist hackers on a News International newspaper, and 101 journalists, some very senior, have been arrested, as opposed to 26 police employees, all very junior. Twelve more trials beckon.

The oddity of the clause is: what if you substituted some other professions for this legislation about police officers? What if we put journalists or parliamentarians instead of police officers in the clause, or even NHS dentists, because they can be convicted of corruption? Would the House support that? The police are far from being without fault and police corruption is an evil thing, but this legislation has no rationale at all and has the feel of a populist reaction to the wrong target.

Lastly, I turn to a different matter. Is the Minister aware that there are roughly 200,000 children in the United Kingdom with one parent currently in prison? That is three times the number of looked-after children, who, in old money, are children in care. During their lifetime, boys who have had a parent imprisoned—I wonder whether the Minister knows this—are three times more likely to be convicted of a crime than their peer group, as well as having many more poor life outcomes. Are the Minister and the House aware that no state agency has a duty to inform those responsible for education or social work that a child’s parent has been imprisoned? There is therefore no reason for a head teacher or any other teacher to know that a child’s parent has been imprisoned and, because the other parent will probably be ashamed to explain it, that position will not change officially. However, the likelihood is that the child’s playmates will find out that the child’s father or mother is in prison, and the effect on that child and the bullying that will follow will be awful.

Is the Minister aware of the campaign entitled “Families Left Behind”, which is backed by Barnardo’s, the Prison Reform Trust and the NSPCC, among many others? The campaign is to introduce a statutory duty on courts to ask whether an individual facing a custodial sentence or being remanded in custody—after, I should emphasise, not before that decision is taken so as not to influence the decision—has a dependant, to ensure that the child’s welfare is considered by statutory agencies. Whether or not he is aware, I would ask for a conversation with the Minister about whether the Bill would be a suitable vehicle for such a statutory duty to be included in Committee. I do not believe that such a proposal has significant resource implications downstream—and downstream it may massively reduce reoffending. I hope he will agree.