Criminal Justice and Courts Bill

Lord Herbert of South Downs Excerpts

Monday 24th February 2014 Commons Chamber

[Nick Herbert (Arundel and South Downs) (Con)]

Unlike the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), I welcome many of the sensible provisions in the Bill. These amendments to the operation of the law seem to me to make common sense.

I am not sure whether I understood the Opposition’s point about judicial review. If we accept that there has been a threefold increase in the number of applications for judicial review since 2000, are the Opposition making the case that there is nothing wrong with judicial review procedures or the way in which they are being used, or are they saying that there has been an increase in the number of poor-quality decisions by the Government and other public bodies? If the latter, the Opposition would be conceding that that happened largely on their watch. If we accept that there has been a very large rise, surely it makes sense to make a number of careful changes that will ensure that the system operates as intended, which is not to provide a vehicle for those who simply object to a decision and wish to test it in an alternative body—in this case, a court—but to ensure that decisions are made properly and subjected to the right and appropriate judicial scrutiny.

[Sadiq Khan]

I am surprised by the right hon. Gentleman’s comments, because he is usually thorough in his research. He should be aware that if we exclude immigration from judicial review, we will see that the situation has been static since the 1990s. A Bill passed 18 months ago by this Government moved immigration from judicial review to the tribunal system, so the problem they are seeking to address was dealt with nearly two years ago.

[Nick Herbert]

The right hon. Gentleman seems to be confirming that he does not believe that there is a problem, but that view is not shared on the Government Benches. In our view, the increase in the extent of judicial review does not just impose a cost—which is a serious matter in itself—but also means, dangerously, that decisions by the courts are increasingly substituting for decisions that should be made by Ministers, which was not the original purpose or intention of judicial review.

In his closing remarks, the right hon. Gentleman railed similarly against previous measures introduced by this Government to deal with legal aid and said there had been restrictions on access to justice. The Opposition’s problem is that they are very quick to criticise every proposal in the area of justice and criminal justice that is designed to ensure a sensible use of public funds and necessary savings. They are not able to explain how they would deal with the very real budgetary challenges that confront every Government Department, not least the Ministry of Justice, which has been required to make substantial savings. If, along the way, the Opposition oppose every measure and criticise sensible provisions such as that under discussion without saying how they would make the savings required, they simply have a credibility problem.

I welcome the Government’s proposals to deal with the problem of automatic early release and, in particular, the scale of the Justice Secretary’s ambition to go further in doing so. There is no doubt that automatic early release undermines public confidence in sentencing. When victims in particular, but also members of the public more widely, hear a sentence handed down in a court but later learn that offenders are, without question, automatically released much earlier—halfway, or earlier in the case of home detention curfew, which is described as early release—it undermines confidence in the system.

It would be much better to move to a system of honesty in sentencing, in which the sentence handed down bears a proper relation to the one actually served, whether that is a system of minimum and maximum sentences, as proposed by the Conservative party in its last manifesto, or sensible measures to curtail automatic early release of the kind that my right hon. Friend the Justice Secretary has just introduced for more serious offences. We should not accept the principle of automatic early release; it would be much better if release were earned and bore some relation to the prisoner’s conduct, progress in rehabilitation and suitability for release.

Even Members of the House of Commons find it difficult to understand or accept the early release of offenders. Many of us noted with surprise that when the courts handed down to a former Member a determinate sentence of eight months, we had no sooner said the words “Liberal Democrat” than that offender was released early, in that case to serve a period on home detention curfew and, subsequently, to enjoy a new career writing articles for The Guardian. All that undermines confidence in the criminal justice system.

[Guy Opperman (Hexham) (Con)]

My right hon. Friend is making a very good speech. To take him back to his more serious point, does he agree that linking the sentence and early release to passing drugs tests for a drug addict or to passing a literary examination or literacy tests is very much the way we should go?

[Nick Herbert]

My hon. Friend is right to bring me back to my serious point, and I wholly agree with him. That is exactly the way we should go, and that is what I meant by the concept of earned release.

[Bob Stewart (Beckenham) (Con)]

I thank my right hon. Friend for making a very good point. I have listened to him carefully. Is it not fairer that a person who has committed a crime should serve two years, say, but that if they do not satisfy proper criteria, the sentence would be three years? The public would then totally understand the sentence.

--- Later in debate ---

[Nick Herbert]

That is what I meant by the concept of having minimum and maximum sentences. There would still be a determinate sentence with a maximum term—it would not be an indeterminate sentence, which is reserved for much more serious crimes—but release after the minimum point would nevertheless depend on fulfilling certain conditions, including those referred to by my hon. Friend the Member for Hexham (Guy Opperman).

I particularly welcome the measures relating to the electronic monitoring of offenders and provisions for the greater use of tagging for the supervision of offenders released from custody. There is no doubt that the advance of technology and the use of satellite tracking mean that a huge and so far largely untapped potential exists to ensure greater confidence in the criminal justice system and enable the safe and secure monitoring of offenders. Whether that is for offenders who receive some kind of curfew as part of their sentence, or whether the purpose is to ensure their safe and effective supervision on release, much more could be done, and has already been done in other countries.

There are two particular lessons. The first is that we should question how quickly the criminal justice system can embrace new technology. The criminal justice system is very centralised, which does not always make it easy to have local innovation in its operation, whether in relation to how certain courts operate—I will come on to that—or to this use of technology. As the Secretary of State knows, some very impressive pilot schemes have been conducted by Hertfordshire police in relation to satellite tagging.

There is, however, a feeling that we have been slow, perhaps unnecessarily slow, to ensure that such technology is made available to other police forces or is used more widely. That is partly because of the understandable caution that results from a determination to ensure that technology is used properly and that public safety remains paramount, but it is also partly because of the centralised nature of the system and the bias against innovation.

If we want a greater use of such technology, we must move towards a system that is more distributed, and in which local criminal justice innovation is encouraged. Through a more decentralised system, we have such opportunities. For instance, police and crime commissioners, who are keen to take on such a role, could supervise its use to ensure that there was some kind of local democratic accountability.

[Guy Opperman]

I entirely endorse my right hon. Friend’s point that localisation is surely the key to driving up the performance of the system and to improving it. Does he agree that the Ministry of Justice—we all acknowledge that this monolithic beast is exceptionally hard to tame and alter—could follow examples in other places, such as Norway, where there are community prisons and a much more localised approach to criminal justice reform?

[Nick Herbert]

I strongly agree with my hon. Friend. Having been a Minister in both the Home Office and the Ministry of Justice, I recognise that Ministers face the challenge of having an imperative to ensure public safety, and an imperative to drive value for money and ensure that contracts are written in such a way as to provide best value for the taxpayer. Nevertheless, there is an opportunity to decentralise and to be more open about the potential use of technology to innovate in the justice system.

The second lesson about the use of electronic tagging in criminal justice and the provision very sensibly set out in the Bill is that technology is not necessarily our enemy or the enemy of justice. In debates in this place and outside, technological advance is too often seen as some kind of enemy of justice and of the public. In fact, the advent of technology has been responsible for incredibly important strides in the delivery of a justice system that works for the public.

The same debates apply to electronic monitoring as apply to the use of CCTV, the development of the DNA database or other things raising civil liberties questions that must be addressed. For instance, how far is it appropriate to go in restricting the civil liberties of those to whom such sentences are handed down, even though they are convicted criminals? We must remember that they have been convicted, and that the alternative is a custodial sentence or, if they are not to be released, a continuing term in custody. Far from posing any kind of threat to civil liberties, such technology presents a real opportunity to protect the public. We should sometimes accept that the use of technology in the criminal justice system can be the public’s friend and can help to ensure that the interests of justice are served.

[Keith Vaz]

I agree about the use of technology, but, as the saga of G4S and Serco has demonstrated, in handing over contracts to private sector companies, sometimes we trust them too much. Those companies were overbilling the Government. We have to monitor such contracts, ensure that there are benchmarks and be very careful when we hand over public money.

[Nick Herbert]

As ever, I do not disagree with the right hon. Gentleman. That is an issue of accountability. We must ensure that contracts are written properly. The behaviour of some companies has been appalling and they should be held to account. There were also problems with the earlier trials of satellite tracking technology and there have been problems with use of simpler electronic monitoring. However, the technology can be made to work effectively and those who deliver the contracts can be held properly to account.

The potential benefits to public safety and, as we have heard, to criminals, who may find that they are no longer constantly approached by the police as a suspect in other investigations because it can quickly be established that they were nowhere near the scene of the crime, are too great to dismiss. We have an opportunity to introduce curfewing and semi-custodial sentences into our criminal justice system in a way that was not possible before. We can make the effective supervision of offenders outside a custodial environment a reality and we should embrace that.

I welcome the changes that the Justice Secretary is proposing to out-of-court disposals in the Bill. Many Government Members and observers of the criminal justice system have long been concerned that the growth of out-of-court disposals has led to problems. Her Majesty’s inspectorate of constabulary produced an important report on this matter a number of years ago, in which it identified the repeated use of certain out-of-court disposals and their inappropriate use for serious offences as a cause for concern. I commend the Justice Secretary for acting on that and making sensible changes to simple cautions in the Bill to ensure that they are not used inappropriately. Again, we can debate the nature of the proposals, but the direction of travel is exactly right.

The growth of administrative justice—for that is what it is—has a place. The previous Government described it as a programme of summary justice, but it is a programme of administrative justice whereby, without recourse to any kind of court, disposals are handed out on the spot. Although it has a place, we must ensure that it does not get out of hand.

As my hon. Friend the Member for Dartford (Gareth Johnson) mentioned, the use of administrative disposals peaked in 2007, driven by the unwise target to bring offences to justice. There was a famous case close to my constituency in which a police officer found a corpse hanging from a tree. In the pocket of the corpse was a penknife. The police officer attempted to record the offence of possession of an offensive weapon. It was very unlikely that the corpse would have used the knife in a dangerous manner. That was due to the target culture that drove the growth of administrative disposals. That culture has fallen away, but the proportion of disposals that are out-of-court disposals is still twice as high as it was a decade ago. That is not necessarily a bad thing, but it is important that such disposals are used appropriately.

[David T. C. Davies (Monmouth) (Con)]

Does my right hon. Friend agree that this is a problem of unforeseen consequences? One reason such disposals are used widely by the police is that it is so difficult and time consuming to put together the MG forms to bring a case to court. The temptation is always to dispose of a case out of court if it is at all possible.

[Nick Herbert]

My hon. Friend speaks from his experience as a special constable. What he says is certainly the case. One of the dangers of using the growth in administrative justice as a solution was that the previous Government took their eye off the important task of dealing with the bureaucracy in the criminal justice system as a whole and making it more efficient, so that cases that had to be brought before the courts could be brought before them swiftly and effectively. I therefore welcome the proposals to deal with the problem of simple cautions being used wrongly.

The growth in administrative justice should give us pause to reflect on the proper role today of the important institution that is the lay magistracy. I was struck by the comments of my hon. Friend the Member for Huntingdon (Mr Djanogly), who, when he was courts Minister, had the difficult responsibility of closing a number of under-utilised magistrates courts. There is no doubt that magistrates have faced challenges owing to a reduction in business, which was caused originally by the growth in administrative disposals and has been partly caused by the reduction in the level of crime and by cases being taken by professional district judges, rather than by traditional magistrates courts. All those factors have led to the magistracy feeling undervalued.

Although I welcome the proposals in clause 24 for single justice procedures, which are entirely commonsensical in respect of high-volume, uncontroversial cases in which there are guilty pleas, I believe we should think further about the right role for the magistracy in the operation of the summary justice system. That will be particularly important if the budgetary position with which the Ministry of Justice is confronted means that there have to be continuing court rationalisations. The development of new justice hubs and centres is not necessarily a bad thing. They can be fit for purpose and very useful, but they also mean that magistrates sit further from the communities from which they are drawn.

[Guy Opperman]

I speak as someone who battled my hon. Friend the Member for Huntingdon (Mr Djanogly) over the closure of Hexham magistrates court, even though I understood why it was being done and the difficult circumstances that existed. Does my right hon. Friend agree that, as we get centralised hubs of magistracy, we must ensure that there is a resident rural magistrate who understands that matters 50 miles away from the city are often greatly different from crimes that take place in the city itself?

[Nick Herbert]

My hon. Friend, who represents a very rural constituency, makes an interesting point that leads on to the suggestion that I want to make. I wonder whether there is a role for the magistracy outside the formal setting of the courts in respect of less controversial offences, so that we can retain the presence of magistrates in communities. As we move towards the use of justice hubs and as traditional courts are closed, we should consider that.

A similar proposal was made last week in an interesting paper, “Future Courts”, by the Policy Exchange think-tank. The paper picked up on proposals that were made in a Government paper that was published in 2012, “Swift and Sure Justice”, for which I had responsibility. We were very drawn to the way in which the criminal justice system had operated rapidly to deal with the offences that were committed during the riots of the previous year, and we started to question whether a leaner and more efficient justice system could be developed. I urge the Government to consider the potential of involving magistrates in a programme of neighbourhood justice. That would ensure that they are retained in their local communities.

Neighbourhood justice panels are an interesting development in the area of restorative justice. Many Members from all parts of the House believe that they have great potential in dealing with low-level offending. Only last month, the Lord Chief Justice expressed the view that magistrates should play a formal role in neighbourhood justice panels and that they should not be a separate tier of justice.

The magistracy is an institution that has been with us for six and a half centuries, and as the late Lord Bingham said, it is a “democratic jewel beyond price”. If we are moving towards greater use of technology, the potential for justice to be delivered remotely, and individuals not having to be in a formal court setting, we have the opportunity to ensure that justice can be delivered locally, without having to be delivered administratively. We can still have confidence that somebody appointed from the community who exercises a judicial—not administrative—function, is dealing with offenders. That is a potential way to rebuild the magistracy and tackle the growth of administrative justice and the excessive use of out-of-court disposals, and a powerful way to rekindle the notion of neighbourhood justice. I hope that the Government, who welcomed the Policy Exchange report as an interesting contribution, will take that on board.

In conclusion, as with so many other areas of public policy, the urge to centralise and rationalise into ever bigger units is great when it comes to delivering greater value for money. We see that in policing with those who urge us to create regional police forces, in health care with those who urge us to create ever greater units with larger hospitals and so on, and we face such pressures across our public services. Such rationalisations need not be a bad thing if innovative ways are found to deliver services at local level, and technology is an enabler of that. What undermines confidence in the process, however, is when a salami-slicing approach results merely in services being centralised for cost reasons, without any rethinking or redesigning of how they can be delivered at local level. Let us enable that innovation, localise, have confidence in the new democratic institutions we have created at local level that can hold the criminal justice system to account, and—above all—let us value the lay magistracy as an institution that has served this country so well over a long time.