Criminal Justice and Courts Bill

Andy Slaughter Excerpts

Tuesday 17th June 2014 Commons Chamber

[Mr Andy Slaughter (Hammersmith) (Lab)]

I will address all the Government and Opposition new clauses and amendments, but I will spend more time on the provisions dealing with judicial review than the new clauses on planning, partly because the latter are relatively uncontroversial.

Yesterday, the Prime Minister held a party for the 799th birthday of Magna Carta. He said that it was the foundation of all “our laws and liberties”, and made us citizens not subjects, with “rights, protections and security”. He is right about that. Later this afternoon, we will debate new clauses on sentencing for a second offence of possessing a knife. The Deputy Prime Minister objects to that proposal, partly because it includes minimum sentencing, which carries

“a serious risk it could undermine the role of the judges”.

He is wrong about that in relation to the new clauses, and he and his party have supported minimum sentencing when it has suited them to do so. Right or wrong, however, one has to applaud the sentiment that the rule of law and the importance of a strong and independent judiciary are the most important protections against the arbitrary or incorrect use of Executive power, especially in a country with no written constitution.

Sadly, such sentiments and lip service are all we can expect from a coalition Government who, in no less a person than the Lord Chancellor and Secretary of State for Justice, have done more to undermine the rule of law and the operation of the legal system than any Government in modern times. They have presided over the dismantling of civil legal aid and now of criminal legal aid, the privatisation of the probation service, chaos in those courtrooms that are still open, an overcrowding crisis in our prisons, the expansion of secret courts, attacks on human rights, and restrictions on access to justice for victims and those of limited means. Yesterday, to mark Magna Carta day, protests took place outside courts across the country.

In part 4 of the Bill comes the coup de grace—a frontal assault on the key legal remedy of judicial review. Alongside new fees, cuts in legal aid and shorter time limits, the cumulative effect of the proposals in the Bill is to hobble the principal method by which the administrative court can prevent unlawful conduct by the state in the way in which it, in all its manifestations, makes decisions.

One of the 17 experts who gave evidence to the Public Bill Committee memorably described the Government’s proposals for judicial review as a “constitutional provocation”; 16 of the 17 opposed them outright. The seventeenth, the head of planning for Taylor Wimpey UK, did support them, but slightly undermined his case by confessing:

“I have only had sight of the Bill…and I am attending at late notice”.––[Official Report, Criminal Justice and Courts Public Bill Committee, 13 March 2014; c. 151, Q341.]

It is not surprising that the Secretary of State could find no one qualified to support his position, which, as usual, is based on his gut instinct that judicial review is used to defeat Government policy for political reasons and that, as he confided to the Daily Mail, it is

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

The truth is that it is inconvenient for the Government when, for example, the High Court and the Appeal Court rule that they acted unlawfully in trying to close Lewisham hospital A and E. No doubt some doughty left-wing campaigners supported that judicial review—not least my hon. Friends the Members for Lewisham East (Heidi Alexander) and for Lewisham West and Penge (Jim Dowd), and my right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock)—but they won because the Secretary of State for Health acted outside the law.

Clauses 55 to 60 will give protection to such unlawful acts in the future. That is why Labour wholly opposes the proposals for judicial review, and wishes judicial review to be preserved as an essential check on Executive power, as does every serious judicial and professional body that has spoken on the matter. Lord Dyson, the Master of the Rolls, has said that

“there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”.

The former Lord Chief Justice Lord Woolf has said:

“In our system, without its written constitution embedded in our law so it can’t be changed, judicial review is critical.”

He added that the Ministry of Justice is showing a

“remarkable lack of concern for the precision of the facts”.

Lord Pannick has said:

“It is ironic that judicial review now needs protection from a politician whose reforms would neuter its force by the use of political slogans that have no factual basis and are ignorant of legal and constitutional principle.”

Most recently, the Joint Committee on Human Rights—I am pleased that its Chair, my hon. Friend the Member for Aberavon (Dr Francis), is in the Chamber to take part in the debate—found no merit in any of the Government’s arguments. Its report stated:

“We…do not consider the Government to have demonstrated by clear evidence that…judicial review has ‘expanded massively’ in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate.”

The truth is that any problems in the administrative court that were caused by the growth in the number of judicial reviews in the area of immigration were resolved by transferring such cases to the immigration tribunal. The process of rationalising the tribunals system, which we started in government, is continuing with the setting up of the planning court.

The first group of new clauses and amendments complement that approach by bringing planning challenges in line with the processes for judicial review in respect of leave and time limits. First, certain decisions may be challenged only by a statutory review, but leave is not required to bring a challenge. The leave of the High Court will now be required in such cases. Secondly, challenges to costs awards will be dealt with as part of the statutory review of a decision. Thirdly, the six-week challenge period will be calculated from the day after the decision is taken. Those practices are more restrictive than the current ones, but we do not oppose them, on the basis that they are tidying proposals that are consistent with other processes that are in place.

I will move on to the amendments that appear in my name and that of my hon. Friend the Member for Barnsley Central (Dan Jarvis). We do not support any of the Government’s proposed restrictions in clauses 55 to 60, which we seek to leave out of the Bill. As there will not be time to vote on every amendment, however, we will seek to divide the House on removing the two most immediately damaging proposals. Amendment 23 would delete clause 55, which is known as the highly likely test, and amendment 35 would delete clause 58, which imposes costs on interveners. It seems to us that that is the clearest and most thorough way to improve the Bill, but, for completeness, we also support the other amendments in the group that have been tabled by the Chair of the Joint Committee on Human Rights and others to amend the existing clauses to similar effect.

Clause 55 requires that, where a respondent asks, the court should consider whether, had the relevant authority acted lawfully, it would be

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

Our belief, which is shared by the Joint Committee, is that that reveals a significant lack of understanding about the purpose of administrative law and the function of judicial review. It confuses unlawfulness with remedy and will encourage bad decision making by the Executive. We want the status quo to prevail. That is, the test should be whether the same outcome would be inevitable. Amendment 23 would leave out clause 55 entirely. The alternative amendments, amendments 24 to 32, would restore the status quo. All those amendments have the support of the Joint Committee in its report.

Amendments 33 and 34 would leave out clauses 56 and 57. Those clauses require the court to consider whether to make an order for costs against any organisation or individual beyond the applicant. Justice, the civil liberties group, gave troubling examples of how those proposals may have a chilling effect. If a charity obtains a donation for the purposes of pursuing litigation, will the court be capable of enforcing a costs order against the donor for any sum? What will happen if a solicitor or law centre acts pro bono when a claimant is unable to secure legal aid? Will family members who support litigation brought by a vulnerable or disabled relative who is seeking to challenge the withdrawal of services be affected? Those questions have not been satisfactorily answered and the changes that are proposed in clauses 56 and 57 should be better defined before Parliament approves them.

Clause 58 states that third parties such as non-governmental organisations, charities and human rights organisations—all those who regularly intervene in judicial reviews—will face orders for costs against them on an application by any party, except in exceptional circumstances. That the Government would target interveners in that way is both chilling and counter-productive. The role of interveners is most often to assist the court, and the most frequent interveners are organisations such as Liberty and Justice, whose expertise has proven invaluable in many cases. Often, in an adversarial system, it is only the intervener who identifies the core issue for the court to decide.

Opposition amendment 35 would leave out clause 58. Amendments 36 and 37 would have much the same effect by restoring judicial discretion as to costs. The hon. Member for Cambridge (Dr Huppert) and others have tabled amendments on this subject. I hope that they will see the force of the argument for voting out clause 58, which would have much the same effect as their amendments. I do not think that we need to split hairs over this matter.

Clauses 59 and 60 place the making of protective costs orders on a statutory footing. Opposition amendments 38 to 40 and 42 agree with the views of the JCHR, which concluded that restricting PCOs to cases where permission for judicial review had already been approved was

“too great a restriction and will undermine effective access to justice.”

It also rejected the

“need for the Lord Chancellor also to have the power to change the matters to which the court must have regard when deciding whether proceedings are public interest proceedings.”

Clause 61 purports to give protection in costs in environmental cases, as required by the Aarhus convention. Although we do not oppose that, we believe that the proposal is flawed because it is not comprehensive and because the precise effect of this important issue is left to the Secretary of State by way of regulations. Opposition new clause 53 would remedy those defects.

Taken as a whole, these changes are designed to hobble judicial review to such an extent that its true purpose—to hold the state to account—may be severely weakened, if not lost. That is an extraordinary position for a Lord Chancellor to take. We know that he is the first non-lawyer to hold the post of Lord Chancellor in more than 300 years, but he must brush up on his British constitutional history. Now that the Secretary of State for Education has stopped the circulation of the Prime Minister’s copies of Magna Carta to schools, there must be a lot of copies lying around in Downing street. The next time the Lord Chancellor is there—unless it is for the reshuffle—perhaps he should read a copy. He will find the memorable words:

“We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Upholding the rule of law and allowing the citizen to challenge the state and other powerful interests are at the heart of our constitution. Judicial review became, in the 20th century, an effective tool for effecting those rights. It is that which the Government now seek to fetter.

[Dr Julian Huppert (Cambridge) (LD)]

I will speak in particular about clause 58 on interveners, about which the hon. Member for Hammersmith (Mr Slaughter) has just spoken, and about amendment 51, which I tabled. I spoke about this issue in some detail in Committee and my view has not changed. In the interests of other Members, I will not go through every single argument that was made in Committee.

There is no doubt that interveners are a positive thing. We should welcome them in our legal system. Baroness Hale of the Supreme Court said:

“interventions are enormously helpful... They usually supply arguments and authorities, rather than factual information, which the parties may not have supplied.”

We should be grateful for that work and for the benefits that we receive.

The status quo does not allow just anybody to intervene. No organisation has a free right to intervene whenever it wants. It is up to a judge who intervenes. The judge can say, “Yes, I would like to hear from you. I don’t want to hear from you about this point. I would like to hear about that issue.” The judge has complete control. They can take lots of interventions or a small number. They can say how much information people are allowed to provide. The judge also has the right to invite somebody to intervene who has not even applied. A court can say, “We would very much like to hear from this person.” Judges therefore have huge discretion. Where there are abusive cases, judges already have the ability to say that they do not wish to hear from somebody.

We made some progress in Committee. We clarified that when a judge invites somebody to intervene, clause 58 will not apply to them. That is very important and it was not clear previously. It certainly was not clear to me and I do not think that it was clear to others. It would obviously be unreasonable to say, “The court has asked you to do something and now you must pay not only your costs, but everyone else’s costs for the privilege.”

I am yet to meet an organisation that intervenes that particularly wants its costs to be covered. That is not the way it usually works. Such organisations accept that they should pay their own costs. What they are concerned about—quite rightly—is the idea that they should have to pay the unenumerated costs of other people. They will have no idea at the beginning of a case how much those costs are likely to be. There could be a very high bill and that will have a chilling effect.

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[Robert Neill]

My right hon. Friend takes a particular interest in these matters, and we are ad idem—as lawyers would say—on the subject. I think we can achieve a significant saving in time. For example, it will no longer be necessary to bring parallel applications for judicial review and costs, and that will save time and costs, because it is clearly a disincentive to have to bring two separate sets of legal proceedings. Even if they are later consolidated for the purpose of the hearing, costs are involved.

My right hon. Friend makes the important point that there will be a saving in terms of costs to the litigants—the potential proponent of a scheme and those who might have cause to object—and a hidden opportunity-cost saving to the Courts and Tribunals Service. Even if the hearings are ultimately consolidated, there is an administrative burden on the courts in processing the parallel matters. Significant sums—reckoned to be in the millions of pounds—can be saved. That may not seem like a massive amount in the overall scheme of things, but it will be valuable.

I also hope that the proposals will help to change the culture. That is an important point that my right hon. Friend and I have talked about in the past. Litigants in planning matters will be encouraged to resolve matters at the earliest possible opportunity and bring forward cases that have been sensibly brought together.

The setting up of the planning court has been warmly welcomed by the profession, but it has one concern that my hon. Friend the Minister might take back to the Lord Chancellor—and, through him, to the Lord Chief Justice—about the supply of judicial material, if I may put it that way, for the courts. There are a limited number of experienced judges and deputy judges in planning work. Now that we have this new, improved and streamlined structure, it is important that we have sufficient judicial personnel to man the court to carry out the process adequately. It is a rarefied and specialist sphere, although I regret to say that it is not one that I practised at the Bar—probably to my disbenefit, and certainly to the disbenefit of my bank manager. The pupillage in criminal chambers came through before the pupillage in planning chambers that I had also applied for, so I ended up in the same boat as the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright)—as a criminal practitioner.

One further point on planning may be a deliberate or passing omission. I wish to check with the Minister whether he intends to look, in due course, at the time frame for proceedings under section 113 of the Planning and Compulsory Purchase Act 2004. It would seem logical to try to deal with those matters at the same time, and I hope that it will be possible. That does not appear in the new clause and schedule, which encompass most of the other matters, but perhaps it can be considered in the other place. It relates generally to development plan challenges, which we have not discussed, and I accept that it would raise broader issues, but it may be appropriate to return to the subject at a future point.

The unanimity across the House on planning matters may end when we come to the issue of judicial review. I am afraid that I cannot accept the overblown and overstated arguments made by the Opposition spokesman on that issue. Of course judicial review is important, but it is worth putting it into context. Before I unwisely took the criminal pupillage instead of the planning pupillage, I was a young law student at the London School of Economics in the days of the great John Griffith, who was professor of public law. Judicial review was a virtually unheard-of concept. Although the prerogative orders of mandamus and certiorari go back to the common law, judicial review was scarcely ever used.

It is interesting, and ironic given the stance taken by the Labour party, that the growth of judicial review in its modern form is sometimes dated to the judicial activism of the late Lord Denning at the tail end of the Wilson Government in the ’70s. It was a Labour Attorney-General, the late Sam Silkin, to whom Lord Denning addressed the famous words:

“Be you never so high, the law is above you.”

There were legitimate grounds for extending the jurisdiction. It is ironic, therefore, that the Labour party now seeks to pose itself as the proponent and supporter of unrestricted judicial review. That was certainly not the view of the Labour Government in the 1970s.

None the less, things have moved on. Judicial review is essentially an issue of proportion. I very much doubt that Lord Denning envisaged the concept of judicial review developing from the way he had in mind in that very famous case. There is a real concern—I have seen it as a lawyer, in my time as local government Minister and, before that, as a local councillor—that the growth of judicial review has become an inhibitor to good decision making, rather than, as suggested by the hon. Member for Hammersmith, being a tool to ensure good decision making. I suggest that the reverse has been the case. A number of examples of that can be given.

Let me start at the decision-making level within Government and local authorities. The growth of judicial review has encouraged a culture of risk-aversion in decision taking. All too often, good and honest civil servants and local government officers are restricted in taking what can sometimes be bold courses of action. Ministers can sometimes be counselled against taking bold and radical action because of the risk of judicial review. That harms the governmental process, rather than improving it.

[Mr Slaughter]

I am enjoying all the autobiographical stuff, but I would love to hear why the hon. Gentleman thinks that a remedy that promotes good decision making and careful consideration by civil servants is a bad thing. Should we be having civil servants taking risky and outlandish decisions because they know that they can no longer be challenged? That seems to be what the Bill proposes.

[Robert Neill]

I am sorry to say—perhaps not for the first time—gently, and with the affection of one legal professional to another, that the hon. Gentleman rather misses the point. We all want good decision making and nobody is saying that there is not a role for judicial review. When I listen to some of the rhetoric from the Labour Benches, I am tempted to think that my right hon. Friend the Lord Chancellor is proposing to abolish judicial review. No such thing is proposed and it is nonsense to say so. But there has been a significant degree of mission creep, to use a popular term, in judicial review. It is reasonable to say that that now needs to be rolled back. That is what the Bill seeks to do.

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[Mr Redwood]

I support the Government’s aim to tame, but not to undermine, judicial review. As I understand the Minister’s wish, it is that judicial review should remain as a necessary way of challenging bad decisions, but that there needs to be some control over the large number of inappropriate or frivolous applications that can now be made thanks to cost control and to the way our lobbying system seems to work.

I start from the proposition that the main way people should still get redress for bad government is through their Members of Parliament, as their representatives, and through this House of Commons putting pressure on Ministers; or through their elected local councillors doing the same thing to change or get redress for mistakes and errors by local councils. Resort to the courts is not open to many people; they have to be either very rich or very poor to gain access to the courts. It is difficult for people on modest means to do so. Largely, it is lobby groups and institutions that have the access that many of our individual constituents do not have, because of the fear of the costs of the legal process, and we need to bear that in mind.

I am quite happy with part 4, which is the subject of this group of amendments, because I think it seeks to make that balance. If anything, it is really quite cautious. The main thing it does, just to remind the House, is to say that, when considering whether to grant leave to make an application for judicial review, the High Court has to look into it. If it appears to be highly likely that the outcome for the applicant of that judicial review would not be substantially different if the conduct complained of had not occurred, it should not proceed. That is a very cautious amendment to our right of judicial review. It makes the common sense point that there are certain cases where even if the process or the way the decision was taken was not strictly correct, if none the less it had been done properly and the outcome would have been the same, there is no real point in proceeding with the judicial review. It is just a lot of cost for lawyers. Were the court to find eventually that the judicial review was correct, the decision would remain the same, so the litigant would not succeed.

[Mr Slaughter]

There are two major differences. First, bad decision making is bad decision making, whatever the outcome, and we would like to see better decision making. Secondly, this will invoke a trial process on the issue—not on the decision making, but on the issue—probably at the permission stage. It will front-load judicial review and change the whole nature of it. This is the most obnoxious clause of all. Far from being mild, it would be extremely radical in its effect.

[Mr Redwood]

I beg to disagree. I entirely understand what the Government are trying to do. They are trying to warn certain potential users of judicial review that it is a fatuous process if it turns out that the original decision was perfectly reasonable, although there may have been some difficulties with the process. If too many decisions are subject to too much court examination continuously, it is often possible for a clever and well-paid lawyer to find something slightly inappropriate or questionable in the way in which a council or Government Department made a decision, although the decision itself was correct. It might be better if the money were not spent, and if the courts’ time were not taken up with applications when the position cannot be improved for a litigant who remains in dispute with the council or the Government, and who will not secure a reversal of the original agreement.

The bulk of the work to which the new clauses and amendment relate lies in the intricate and sometimes opaque drafting of new schedule 3, with which we non-lawyers are perhaps struggling a little. It is a complex piece of work, because it amends various pieces of underlying legislation. I have one or two queries with which the Minister may be able to help me, knowing as he does that I approve of what he is trying to do, and am merely trying to clarify some of the ways in which it would operate. For instance, I do not quite understand the logic of paragraph 4(7) of new schedule 3, which provides for new subsection (6) of section 288 of the Town and Country Planning Act 1990 to state:

“The High Court may not suspend a tree preservation order under subsection (4C) or (5)(a).”

That is not entirely similar to some of the other proceedings.

I am also interested in the timings. The period during which due consideration must take place seems generally to be specified as six weeks, but I wonder what the overall period will be when the High Court finds that the judicial review process should proceed. In the case of planning issues in particular, delay can impose complexity, blight and difficulty in the area involved, and if the end result is that the development goes ahead anyway, it becomes a real issue. I am sure that questions of timing and delay lie behind some of the work that the Government have been doing.

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[Mr Slaughter]

There has been no growth in judicial review. If one exempts immigration cases, for the reasons given by my hon. Friend the Member for Bolton South East (Yasmin Qureshi), the number of judicial reviews against local authorities and others has remained stable for the last 10 years.

[James Morris]

Whatever the statistics, the essence of the point is that the threat of and culture created by judicial review has had a distinct impact. Before becoming a Member of Parliament, in my previous life as chief executive of Localis, the local government think-tank, I spoke to many local authority leaders and chief executives about the way the judicial review culture that now surrounds local authorities was impacting on their decision making. As my hon. Friend the Member for Bromley and Chislehurst pointed out, it has created to some degree a culture of risk-aversion in local authorities. A bureaucratic layer has been added to the taking of often very important decisions that have big impacts on local communities, resulting in long delays. One example is the politically controversial decisions taken on the potential closure of care homes in many different local authorities. The impact of the threat of judicial review is now being perceived as part of the decision-making process, and that has had a detrimental impact on the quality of some community services.

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[James Morris]

There is a balance to be struck, and direct accountability is an issue. We want a culture in which local authorities and Government can be held to account democratically. That is how decisions should be taken. We should not be developing and enhancing a culture—

[Mr Slaughter]

rose—

[James Morris]

I will not give way again. I am drawing my remarks to a conclusion.

We should not create an environment in which people have the expectation that going for a judicial review will somehow impact on a decision. I welcome the changes in the Bill. We need to improve the balance between judicial review and local democratic accountability to enable public bodies to make long-term decisions on behalf of communities and constituents.

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Amendment 23 would delete the clause and maintain the current position. Taken together, amendments 24 to 28, 31 and 32 would also maintain the current position by replacing the duty on the court with a power and by replacing the “highly likely” test with one of “inevitable”. I have already set out our basis for the clause, and I trust that I have assured hon. Members of the high threshold that the clause maintains. Replacing “may” with “must” would significantly weaken the utility of the clause for dealing with minor technicalities in a proportionate manner, and it would continue the recipe for judicial reviews brought on minor technicalities to hinder progress.

[Mr Slaughter]

I hope that the Minister will not read a prepared speech but address a subject that was raised in the debate, which the hon. Member for Halesowen and Rowley Regis (James Morris) rather gave away, namely that the clauses remove the existing balance in the system and weight it in favour of the stronger party. Rather than talking to the chief executive of the local authority, why does the Minister not talk to the care home resident, the small business that is being pulled down because of planning regulations or the homeless person who is not being taken in? Those are the people who are disadvantaged. They are not meritless cases, but people who do not have the necessary resources.

[Mr Vara]

I am addressing the issues concerned. I am sorry that the hon. Gentleman does not like them, but that does not mean that I will not address them. As for making proper speeches, given the personal attacks that he made when he spoke, perhaps he should have better regard for the etiquette of the House. I will not take any lectures from him.

Amendments 29 and 30 probe the scope of clause 55. In practice, the clause will bite on minor procedural defects, because more significant defects will not be highly unlikely to have made a difference to the outcome for the applicant. There is no accepted definition of “procedural defects”, and it would be virtually impossible to arrive at a definition that would stand the test of time because judicial review evolves with each new decision.

Clauses 56 to 61 will rebalance the financial aspects of judicial review. Those involved in bringing judicial reviews should not be able to hide behind a claimant of limited means or an off-the-shelf company to avoid appropriate liability at the taxpayer’s expense. I do not accept that clauses 56 and 57 will prevent meritorious judicial reviews from being brought. As now, non-party funders will be liable only where they also seek to drive or control the litigation in some way.

Clause 58 establishes two presumptions concerning persons who voluntarily intervene in a judicial review: first, that the court must order an intervener in judicial review proceedings to pay their own costs; and, secondly, that the court must order the intervener to pay the reasonable costs that their intervention has caused a party to incur. Where there are exceptional circumstances, the court need not make an order. Amendment 35 would remove the clause in its entirety, and amendments 36 and 37 would remove the second presumption. Amendment 51, which draws from the Supreme Court rules, would allow the court to award costs against an intervener only in exceptional circumstances.

The first presumption—that an intervener will pay their own costs—represents the current position. Interveners already almost invariably cover their own costs. On the second presumption—that an intervener will pay costs they cause a party to incur—it is right that all interventions should be carried out appropriately and reasonably. The Government share the view that interveners add value to proceedings, and clause 58 is not intended to prevent interventions. However, those who intervene should properly consider the cost implications of doing so.

I know that the clause has caused some disquiet and I agreed in Committee to consider further the second presumption, having listened carefully to the points made, particularly those by my hon. Friend the Member for Cambridge (Dr Huppert). I wish to record my gratitude to him for his assistance, and I believe his proposed amendment reflects, in part, what we want to achieve. Although we are not in a position to accept the amendments, we are looking seriously at how to ensure that interveners consider carefully the cost implications of intervening, without deterring those who intervene in appropriate cases and add value. I am happy to commit to continuing discussions to consider further whether the clause needs to be redrafted to target the specific behaviours that we want to address.

Clauses 59 to 61 establish a codified costs capping regime in judicial review proceedings, building on the regime that has been developed by the courts through case law. The usual costs position should be circumvented only in exceptional, meritorious cases involving serious issues of the highest public interest that otherwise would not be taken forward. We are concerned that costs capping orders can currently be made at any stage of a case. If an order is made at an early stage and a judge later decides that the case has no merit and does not grant permission for it to go any further, the claimant will be protected from having to pay the defendant’s costs of defending that unmeritorious claim.

A number of points have been raised by colleagues. I simply say that with judicial review, we are trying to ensure that meritorious claims go ahead. It is unmeritorious claims that we are trying to deal with, such as those where people hide behind a shelf company, or where people front an application for other individuals who are actually behind it and driving it. We want to maintain judicial reviews for meritorious cases, but we want to ensure that unmeritorious claims are dealt with appropriately. We also want to ensure proportionality by making those who wish to intervene take account of the costs, particularly when some of those costs are to be borne by others.

Question put and agreed to.

New clause 52 accordingly read a Second time, and added to the Bill.



New Clause 13

Periods of time for certain legal challenges

‘(1) In section 61N of the Town and Country Planning Act 1990 (legal challenges relating to neighbourhood development orders)—

(a) in subsections (1)(b) and (2)(b), after “beginning with” insert “the day after”;

(b) in subsection (3)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”.

(2) In section 106C of that Act (legal challenges relating to development consent obligations)—

(a) in subsection (1)(b)—

(i) for “during” substitute” “before the end of”;

(ii) after “beginning with” insert “the day after”;

(b) in subsection (1A), after “begins with” insert “the day after”;

(c) in subsections (2)(b) and (3)(b)—

(i) for “during” substitute” “before the end of”;

(ii) after “beginning with” insert “the day after”.

(3) In section 13 of the Planning Act 2008 (legal challenges relating to national policy statements), in subsections (1)(b), (2)(b), (3)(b), (4)(b), (5)(b) and (6)(b)—

(a) for “during” substitute “before the end of”;

(b) after “beginning with” insert “the day after”.

(4) In section 118 of that Act (legal challenges relating to applications for orders granting development consent)—

(a) in subsections (1)(b), (2)(b) and (3)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”;

(b) in subsections (4)(b), (5)(b) and (6)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “day”, wherever occurring, insert “after the day”;

(c) in subsection (7)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”.” —(Mr Vara.)

The provisions amended by the clause allow for legal challenges to certain planning-related decisions and other actions. They stipulate that a challenge may be made during a period of six weeks beginning with the day on which the decision or action challenged occurs. The amendments secure that the six-week period does not start to run until the following day

Brought up, read the First and Second time, and added to the Bill.

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[Jeremy Wright]

I am not sure that this is the appropriate time. There are some minor and technical flaws, but my hon. Friend the Member for Enfield North has made his case and the House will have to consider what he has said and decide what it wishes to do. Regardless of the fate of my hon. Friend’s new clauses, I hope that the Government’s new clauses, new schedule and amendments will find favour with the House.

[Mr Slaughter]

I will take a different approach from the Minister’s and address the majority of my remarks to new clauses 6 and 7; I shall discuss the Government’s clauses at the end of my speech. I welcome this debate and the chance to discuss a subject important to all hon. Members—perhaps particularly to those with constituencies in London, where almost half of knife-related offences take place. Knife crime is one of the most serious and intractable criminal justice issues, and one that often leaves irrevocable damage in its wake.

In my own borough of Hammersmith and Fulham, we have seen more than 800 knife crime incidents since 2010, with tragic consequences for the victims and their families. In London as a whole, that figure is closer to 40,000. In 2013-14, more than 50% of all murders in London were committed with a knife. Knife crime is not just an issue for London and other major cities: it is a national menace. Nearly a third of adult offenders currently receive an immediate custodial sentence. New clauses 6 and 7 would impose what has been referred to as a mandatory minimum custodial sentence on those convicted of a second knife possession offence. For those aged 18 and over, it would be six months; for those aged 16 to 18, it would be a four-month detention and training order.

Contrary to press reports, and statements made by the Deputy Prime Minister, the new clauses would permit judicial discretion, and that is key to our support. Subsection (2B) of new clause 6 states that

“the court must impose an appropriate custodial sentence…unless…there are particular circumstances”—

those are the words, rather than “exceptional circumstances”—

“which…relate to the offence or to the offender and…would make it unjust…in all the circumstances.”

It would also be a defence to the new offences if possession were with lawful authority or reasonable excuse. This measure should not be seen as a catch-all solution.

In light of the current overcrowding crisis in the prison system, The Guardian reported today that the Lord Chancellor will be unable to implement his legislation, if passed, for at least a year; his reverse King Midas touch extends, it seems, to all areas of the criminal justice system.

[Sir Bob Russell]

Is the hon. Gentleman saying that the policies of the last Government to deal with knife crime failed?

[Mr Slaughter]

That is a peculiar conclusion to reach from the comments I have just made. The hon. Gentleman will be pleased to hear that I am just coming to the previous legislation on knife crime. In the meantime—this point may be of interest to Liberal Democrats—I should say that the issue is not just about increasing sentencing powers. In the next year, for example, the Home Affairs Committee will have concluded its inquiry into gangs and youth crime, with a remit including the effectiveness of current law enforcement and legislation, including gang injunctions and knife and gun crime legislation.

There are many other ways in which young people in particular can be discouraged from carrying knives. Prevention is better than cure. Education, tackling gang culture and deterrence all have a part to play, but it is important that the message should go out from this House that carrying a knife without good reason is unacceptable.

[Sir Alan Beith]

Over my many years in the House, I have heard the expression “A message must go out from this House” so many times. If there is one group of the population that seems unable ever to hear these messages, it is those who commit crimes. Does the hon. Gentleman not recognise that many of those who do either foolish or evil things tend not to think that they will get caught and not to think that, if they are caught, they will get whatever sentence the House has decided on?

[Mr Slaughter]

The right hon. Gentleman has been here for a very long time and perhaps cynicism has entered his soul about the ability of the legislature to have any influence on the population at large. As a newer Member, I retain some hope that somebody out there might be listening to us at some point.

This is a serious debate, and I commend the hon. Member for Enfield North (Nick de Bois) on the measured way in which he moved the new clause. However, I regret that both sides of the coalition have used an issue of such seriousness for what I can only call a bit of crude political brand management. The new clauses prescribe mandatory sentencing only if a second offence is committed, if there is no lawful authority or reasonable excuse and if the court does not find particular circumstances of the offender or the offence that make that unjust.

We will not hear either the movers of the clauses or the Liberal Democrats highlighting any of those factors—the movers, because they want to show how tough the Tory party can be, and the Deputy Prime Minister, to buff his tarnished liberal credentials. The leaking of the original letter highlighting the coalition dispute over this incredibly sensitive issue was cynically timed just before the local elections—elections that nevertheless saw both parties significantly stumble. Where was this new, improved brave and defiant version of the Deputy Prime Minister when the Tories came to carve up the NHS, slash legal aid or treble tuition fees? He was in the Lobby with them, ensuring their policies went through. I am glad he is taking a keen interest in justice policy, but his timing is noted for what it clearly is—a cheap political stunt to throw a bone to his increasingly malnourished base.

The hon. Member for Enfield North has already alluded to this point, but I led for the Opposition in the very lengthy Committee stage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the last attempt to honour the Tory manifesto promise that

“anyone convicted of a knife crime can expect to face a prison sentence.”

A new offence was created in that Act, of threatening with an offensive weapon in public. It was a serious offence, triable either way with a maximum term of four years on conviction on indictment. It imposed mandatory minimum sentences, as in the clauses under discussion. What was the Liberal Democrats’ response? It is there in Hansard, in the words of the then Justice Minister—he was here until a few moments ago—the hon. Member for Reigate (Crispin Blunt). He was asked what the view of the coalition was, and he said:

“Of course, we enjoy the full support of our Liberal Democrat colleagues on this.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 13 October 2011; c. 808.]

The new clause, with exactly the same provisions in respect of mandatory minimum sentences with judicial discretion—I have set out other caveats—was agreed without a Division. I ask Liberal Democrat Members in their places today: “What has changed since?” We will support the new clauses in the knowledge that they are not enough in themselves to tackle the problem and that they are a proportionate, not a draconian, response.

I shall speak briefly to the other provisions. We have at least had some time to consider new clauses 6 and 7, but the rest of the new clauses and amendments in the group were tabled by the Government so late as to make our scrutiny farcical. The fact that the intention behind them is laudable does not mitigate the appalling management of business, and they hardly have the excuse of being overloaded with legislation. It remains important to ensure that legislation, however consensual, does the job it purports to do.

We support new clause 44, as well as amendments 45 and 46. It creates the offence of police corruption. Alone, that is not the answer. We have called for a bolder and more radical way of tackling police corruption so that the good work of the vast majority of officers is not blighted by the actions of a few.

We have already called for the abolition of the Independent Police Complaints Commission and for its replacement with a stronger and more robust police standards authority. Notwithstanding the Minister’s comments about special responsibilities and a higher standard of police officers, I observe that if the Government are introducing this new offence because they believe that the offence of misconduct in a public office is in some way obsolete or arcane, they might at some stage need to address the other public professions covered by the same provisions. As I say, we do not oppose the Government’s proposals here.

Similarly, we support the new clauses and amendments dealing with wilful neglect in care homes by care providers. As they relate to care homes, almost identical amendments to these were proposed by my hon. Friend the Member for Blaenau Gwent (Nick Smith) during the passage of the Care Bill. I am pleased to see in her place my hon. Friend the Member for Leicester West (Liz Kendall), who led the opposition to that Bill. She will no doubt confirm the similarity; we tabled amendments in Committee to make directors of care providers face jail if their management of services led to abuse or neglect. The Government voted that down on Report. I see no reason for that other than that they wanted to bring it up in their own time. There it is, however—better late than never. I often think that it is better for them to follow up and make their own way in the world.

I am afraid that a number of new clauses will not get proper scrutiny this afternoon if they do not cover the main issues for which most Members have attended the debate. It is to be hoped that the other place will give proper attention to the detail; a restricted debate on Report cannot do so here. The situation is to be regretted even more if we do not manage to reach the final group of amendments, which propose brand-new provisions that have never been scrutinised here. The Government should desist from this policy, which is simply disrespectful to this House and all its Members.

--- Later in debate ---

[Mr Burrowes]

It is clear that they are different offences, but my point is that the Deputy Prime Minister thinks that we should have nothing to do with a mandatory minimum sentence, as a matter of principle. I do not understand the difference between the examples given by the hon. Gentleman when it comes to the principle of mandatory sentencing. He said that people might carry knives for their own protection, but the issue is the same whether a person threatens someone else or whether that person is carrying a knife for the second time. In both cases, a mandatory sentence is applied. It would be necessary to go a considerable way to show exceptional circumstances to avoid a prison sentence.

[Mr Slaughter]

I am puzzling over this as well. The Deputy Prime Minister said this in his article in The Guardian, which is in front of me:

“While minimum sentencing might sound attractive in media headlines there is a serious risk it could undermine the role of the judges, who are best placed to decide on sentencing.”

I cannot see how that differentiates between different offences, but perhaps the hon. Gentleman can.

[Mr Burrowes]

The hon. Gentleman may have put his finger on it. Perhaps the issue is the media, and the difference between the headlines of 2011 and those of 2014. Perhaps a differentiation strategy is now more important than an anti-crime strategy. Perhaps a political party is now more concerned about their own interests than about the interests of victims and the public.

Others wish to speak, so I shall not continue for too long, but the fact is that this is not something that has been cooked up on the back of a media issue to make a point. It follows a long campaign, on which I have fought hard with my hon. Friend the Member for Enfield North for a number of years. Last year, Joshua Folkes was killed in an awful knife attack in Bowes road in my constituency. The circumstances are still not clear, despite a judicial determination. We do not know what happened, but we do know that knives were present, and that they caused a young person to die. That was unacceptable then, and we must be intolerant of such cases now.

Last year I asked the Prime Minister whether we could please be intolerant towards knife crime, and we have the answer to that today. Yes, we will be intolerant, following a long campaign that has been fought by many. The Mayor joined us in that campaign: in February he organised a meeting bringing together representatives of the Metropolitan police and others, and on 23 April he wrote to the Home Secretary calling for a measure such as this. We certainly have not come to this recently, therefore; we have been there for many years and, on behalf of the victims—the tragic cases of those, like Godwin, who have lost their lives—we must do more. We cannot rest when more people are losing their lives—being cut down in their prime—unnecessarily.

We must do it also because we, certainly on the Conservative Benches, want to stick to our promises. We made a manifesto commitment to ensure there is an expectation that people go to prison for carrying a knife, and we want to continue to honour that, which is what we are doing today. That is why I call on all Members of the House to support new clauses 6 and 7.

--- Later in debate ---

[Dr Huppert]

I will happily give way, but I should highlight the fact that Commissioner Hitchcock was talking about a first offence, and I accept—if this is the point the hon. Gentleman is about to make—that he did not comment on a second offence. I will still give way if the hon. Gentleman likes, but I suspect he was going to make the point I was about to make myself.

[Mr Slaughter]

rose—

[Dr Huppert]

I will happily give way to the hon. Gentleman. It is always a pleasure to hear him try to stand up for liberalism, given the legislation that he and his party supported.

[Mr Slaughter]

Whatever.

Yes, there is the question of the second offence, but more importantly, all the examples the Liberal Democrats give—be it the one the hon. Gentleman has just given, or the Deputy Prime Minister’s example of a vulnerable young girl hanging around with a gang—are exactly what judicial discretion, which remains in these clauses, is there to support: particular circumstances relating to the offender.

--- Later in debate ---

[Dr Huppert]

The hon. Gentleman normally listens carefully. What I said, very clearly, was that if anybody listened, that would be the effect. I am sceptical about how many people will listen to the message being sent out, but even if they do, the new clause would simply drive that strong and unintended consequence. I am sure that some people listen to the messages that come out of this place, and I am sure that some of them read the Hansard transcripts of our debates, but I am sure that not everybody does.

I believe that there is a risk of serious, unplanned harm resulting from this well-intentioned new clause. If it works in the way in which some hon. Members would like, by putting more people in jail, there will be another problem: there is not room in our prisons, which are already overcrowded. Perhaps I should not be surprised that the Labour party could yesterday complain about how full the prisons are and how awful it is that there is no space, but today try to fit more people into them. I am sure that there is a logic in there somewhere.

[Mr Slaughter]

Turning that around, the hon. Gentleman is part of a coalition that says that there is plenty of space in the prison system and more coming on stream. He might want to ask the Government he supports why they have closed 18 prisons.

[Dr Huppert]

We may be going down a sidetrack, but I am delighted that under this Government there are fewer women and children in prison than the previous Labour Government ever managed. I am satisfied with that achievement. However, I realise that the Labour party is still in a space of wanting to lock up as many people as possible to show how tough on crime it can be.

--- Later in debate ---

[Philip Davies]

I agree with my hon. Friend the Member for Enfield North (Nick de Bois) and commend him on his new clause, which I will be supporting enthusiastically.

I will concentrate my remarks on the three new clauses that I have tabled in this group, and I am grateful to my hon. Friend the Member for Bury North (Mr Nuttall) for adding his name to them. I was disappointed that the shadow Minister, who usually has plenty to say about lots of things, had nothing to say about any of my new clauses. The Labour party having nothing to say on the economy appears to have transferred to justice, as they have nothing to say on these matters either.

[Mr Slaughter]

rose—

[Philip Davies]

I will give way to the hon. Gentleman if he now has something to say.

[Mr Slaughter]

It was not that I forgot; it is simply that I did not think the new clauses were worth commenting on.

[Philip Davies]

I am grateful to the hon. Gentleman for that. We have commented on whether people take notice of what Members say, but when I come to discuss the three new clauses, I think he may regret that he thought they were not worthy of any debate. Lots of people up and down the country, such as victims’ groups and owners of commercial properties, will be very interested to know that.

[Mr Slaughter]

rose—

[Philip Davies]

It is no good the hon. Gentleman coming back; he does not care about any of these issues, and lots of people will be grateful to him for letting that cat out of the bag.

Before I come to the three new clauses, in fairness I should also refer to the Minister. On new clause 34 he trotted out the normal sort of Sir Humphrey guff about how it is an important area and we will keep it under review and all that kind of jazz, but I am not entirely sure—I shall have to look through the Sir Humphrey handbook later to find a translation. It may be that the Minister agrees with what I am saying but cannot be seen to be agreeing with that troublemaker Davies on the Back Benches, or perhaps he does not agree, but knows it is popular and does not want to be seen to disagree. Whichever way it is, we deserve a bit more clarity. He says that he will start to look at the issue: he is the Minister, for goodness’ sake. What has he been doing? He should be looking at these things. I know that he must spend a lot of time arranging for murderers and other dangerous criminals to walk out of our prisons, but in the time that he is not doing that perhaps he might want to look at some of the issues that I am talking about.

I am grateful for the support of my hon. Friend’s predecessor, my hon. Friend the Member for Reigate (Crispin Blunt), on these matters. If the current Minister wants to go even more left wing than his predecessor, we are in big trouble on this side of the House on criminal justice matters.

New clause 34, to which the Minister gave his Sir Humphrey blurb, is actually about squatting. This activity was criminalised in residential buildings in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—it was one of the rare triumphs of that Act—and my new clause would extend the criminalisation from residential buildings to non-residential buildings and land. I was delighted to support the criminalisation of squatting, but because it applies only to residential properties, the problem has simply moved on to commercial property, by which I mean any property that is non-residential, including pubs, shops, restaurants and even schools—although the shadow Minister thinks that that is not important.

The now established principle that it is a criminal act to break into someone’s property and take it over without permission should apply whatever the property. It should make no difference whether it is a flat or a community centre. No one should have the right to enter someone else’s property without permission and stay there until evicted. At the time of the criminalisation of squatting in residential property, my hon. Friend the Member for Reigate said:

“For too long squatters have had the justice system on the run and have caused homeowners untold misery in eviction, repair and clean-up costs. Not any more. Hard working homeowners need and deserve a justice system where their rights come first— this new offence will ensure the police and other agencies can take quick and decisive action to deal with the misery of squatting.”

I believe that should apply to everyone, not just home owners.

Squatters are using the fact that the law does not apply to commercial premises to take over pubs, for example. The door may have been slammed shut for squatters in residential properties, but it is wide open for non-residential premises and land. One example was the Duchy Arms in Kennington. Squatters realised that it had not been trading for a while and swooped in. They took over last summer and that small, friendly local pub was turned into the London Queer Social Centre overnight. It was overrun by those who cared nothing for what they damaged or how much upset and inconvenience they caused to others. They locked all the doors and put a sign on the front, delighting in the fact that the new law did not apply to them or the pub. It also said that if anyone entered the pub without their permission, they would be the ones guilty of a criminal offence. You really could not make it up. As they had not committed the offence of squatting in a residential building, they were not arrested by the police immediately and the pub was occupied for some time by people who had no regard for anyone or anything around them. When they were eventually evicted, the police had to go in and the premises were guarded for months by dogs to ensure there was no invasion by squatters. The clean-up costs for the owners will have been considerable and could have been avoided had the police been able to arrest the squatters on day one.

Another example that has come to my attention involves an office building owned by Kewal Investments Ltd. Having forced their way into the property, the squatters initially invited the director to agree to them staying there, saying that they would provide free security. The squatters were there from before Christmas until their eventual eviction, with bailiffs and police in attendance, months later. During their occupation, the squatters sought to try to gain entry to adjacent buildings owned by the same firm and the business had to spend money to protect its other properties as well as to seek an order of eviction through the courts.

When the business owners eventually gained entry, the property was in a state with waste everywhere. The squatters had used the back window as a rubbish chute and toilet, left graffiti all over the walls, put paint in a fire extinguisher and blocked the toilet. Those entering could barely get into the basement because of the smell. The director, who often used to give money to the homeless, has now been totally put off the idea. He feels let down by the system and has incurred substantial costs to gain access to his own building. On top of the considerable legal costs, he faces the cost and waste of time of simply restoring the building to its original state and ensuring that the squatters do not take it over again. I would have hoped that the Government—a party that should believe in people who own property—would want to do something about this instead of the Sir Humphrey words of the Minister. I suppose that that is better than the shadow Minister saying that he does not even care about the issue at all.