Criminal Justice and Courts Bill

Debate between Andy Slaughter and Sadiq Khan

Monday 24th February 2014 Commons Chamber

[Mr Andy Slaughter (Hammersmith) (Lab)]

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

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

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

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

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

[Sadiq Khan]

They can’t both be right.

[Mr Slaughter]

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

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

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

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

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

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

It is unclear whether those left-wing campaigners include the Countryside Alliance, the Daily Mail, The Daily Telegraph, UKIP’s Stuart Wheeler and numerous Conservative councils, all of whom have initiated judicial reviews in recent times. However, the senior judiciary’s response to the Lord Chancellor’s consultation shot that particular fox when it stated that it had seen no

“evidence of inappropriate use of judicial review as a campaigning tool, and it is not the experience of the senior judiciary that this is a common problem.”

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

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

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

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

“get out of jail free card”,

and allow public bodies to

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

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

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

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

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

He has also said:

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

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

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

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

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

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

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