Criminal Justice and Courts Bill

Andy Slaughter Excerpts

Monday 1st December 2014 Commons Chamber

[Mr Andy Slaughter (Hammersmith) (Lab)]

I would love the Secretary of State for once to use an example or any example that does not involve Richard III. He knows very well that the intention of his approach on clause 67 is not to be transparent, but to discourage small litigants—individual groups wishing to take on a big corporation—who would fear that all their funds were at risk. The vast majority of such cases are of that kind. He wants to suppress viable litigation, rather than in any way to be transparent.

[Chris Grayling]

I am afraid that that is complete nonsense. The amendments that we are discussing do not involve any financial risk at all. They are simply about the court knowing who is backing the judicial review. They are purely for information. I do not believe that it is unreasonable for a court considering a judicial review to know who is backing it, and I am baffled as to why the Labour party opposes that.

We do not have much time for this debate, so I will focus my detailed remarks on clause 67, but I said that I would take another intervention.

--- Later in debate ---

[Chris Grayling]

As I just said, we have never taken away judicial discretion. We have left in place the clause on exceptional circumstances. Almost every week, this House passes measures that set tramlines for the courts to operate within. We set maximum sentences, but if the maximum sentence for a crime is five years, we do not say that judges should give a five-year sentence; we give them the flexibility to decide what is the right length of time below that.

We are taking a similar approach with these proposals. We are saying to judges, “Look, you’ve got some flexibility, but there are parameters that we need you to operate within.” To my mind, that brings common sense back to the system of judicial review and deals with the frustrations with a system that can be abused. It does not create a situation in which legitimate judicial reviews cannot be brought.

Surely my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) would admit that an organisation should not be able to bring a case to court free of financial risk because it is shadowing behind somebody who has no means and therefore cannot have costs awarded against them; that an organisation should not be able to set up a shell company to bring a judicial review without any information being available to the court about who is behind the shell company; and that an organisation should not be able to delay a difficult spending decision by arguing to a court that the whole process should start all over again because of a minor technicality. Those things happen on a regular basis and they must change.

These reforms are essential in restoring common sense to judicial review. I hope that the House will back the motions to disagree and the amendments in lieu.

[Mr Slaughter]

Although it is some two and a half years since I last spoke on a series of Lords defeats of Ministry of Justice legislation, I have an acute feeling of déjà vu. On 17 April 2012, this House considered the 11 defeats that their lordships had inflicted on the infamous Legal Aid, Sentencing and Punishment of Offenders Bill. Today, we examine the four considerable dents that have been put in the Criminal Justice and Courts Bill. The three that we are considering in this group of amendments substantially amend part 4 of the Bill, which seeks to hobble the administrative law remedy of judicial review.

LASPO is fresh in my mind today for two reasons. First, those 11 defeats were whittled down, in the course of ping-pong, to some important but narrow wins. Secondly, the Government have spent the past 30 months trying to squirm their way out of even those concessions. The MOJ is still deciding what to do about the High Court decision that its review of costs rules for mesothelioma cases was unlawful. Let us remember that it is trying to enforce, against the will of Parliament, the payment by sufferers of that terrible disease of up to 25% of their damages in legal fees. Further proceedings are pending on the evidential requirement for obtaining legal aid in domestic violence cases—another defeat for the Government.

Both Houses may wish to note how the Government have sought to dodge the undertakings that were given to two of the most vulnerable groups in society—terminally ill cancer sufferers and domestic violence victims—when they look at any purported concessions in the Bill. Of course, the fact that a Government who go back on their commitments to Parliament and let people down are held to account by the courts is at the root of this attack on judicial review. The Lord Chancellor has lost six judicial review actions in the past year and there are several strong cases in the pipeline. Might that have any bearing on his current attack on judicial review?

For once, notwithstanding the truncated nature of the debate, I feel that we have enough time to debate an issue that the Government find very uncomfortable. That is not because there is a lack of arguments to put against part 4, but because they have already been put many times and have not been rebutted. On Second Reading, in Committee, on Report and on Third Reading in both Houses, there have been long debates on the dangers and inequities of this attack on the rule of law and the rights of the citizen against the state.

An unprecedented alliance of charities, the legal professions, the judiciary and victims of Government injustice has come together to support the Lords amendments. On the “Today” programme this morning, the noble Lord Woolf, who was a sponsor of the Government’s defeats, said that the Bill undermined the independence of the judiciary and, thereby, the rule of law. All the arguments are on one side. Against the clear voice of the experts, which says that this attack on judicial review is a constitutional provocation, we have the childish statements from the Lord Chancellor, who says that judicial review is a left-wing conspiracy. He should tell that to those who are reliant on the independent living fund, the Gurkhas and the victims of care home abuse, or indeed the Countryside Alliance and Stop HS2, all of which are successful challengers of his Government’s arbitrary exercise of power.

The only thing going for the Government is the majority that they hold in this House. The real issue today is whether they can use it to batter the other place into submission. Sadly, there are too few supporters of individual freedom on the Tory Benches. Tory Members either support the big corporation over the little man or have swallowed the Lord Chancellor’s infantile line that judicial review is all about subversive left-wing groups stopping the wheels of commerce turning. We are left to hope—I find it difficult even to say this—that the Lib Dems will wake from their comfortable ministerial sleeps to remember the time when they claimed to be the party of civil liberties. To wait is to hope, but as only one Liberal Democrat MP has bothered to attend this important debate on civil liberties and the rights of the individual, I do not think that we can have much hope.

[Frank Dobson]

My hon. Friend mentioned Lord Woolf. Will he remind the House which judicial position was held by Lord Woolf? Would he, like me, be more likely to agree with Harry Woolf than with the right hon. Member for Epsom and Ewell (Chris Grayling)?

[Mr Slaughter]

We do indeed stand on the shoulders of giants in conducting this debate. The names that graced the amendments that were made in the House of Lords included not only the former Lord Chief Justice, but other esteemed lawyers such as Lord Pannick, the Labour spokesman Lord Beecham, Lord Carlile and many other senior jurists. Indeed, the President of the Supreme Court and the Master of the Rolls have also spoken out in clear and emphatic terms to say that the Government proposals are not just folly, but dangerous steps to take. I am amazed that any Lord Chancellor—even this one—would ignore those protestations.

It is not wrong to see this concerted attack on judicial review as of a piece with other reductions in access to justice that this Government have advanced, such as on legal aid, on no win, no fee, and on court and tribunal fees. However, judicial review seems to receive particular opprobrium from this Lord Chancellor. That is strange in many ways. Judicial review is already a remedy of last resort and already includes a permission stage. Its accessibility has been limited by the changes to the rules on legal aid for judicial review and the shortened time limits for applying. Indeed, Lord Justice Jackson, some of whose recommendations on costs and civil claims the Government have grabbed on to, advised that it was already very difficult for the ordinary citizen to apply for judicial review for want of funds and expert knowledge, and that we should look at broadening the basis for bringing a judicial review claim.

The attack on judicial review should be of concern to us all. It is a remedy that can protect the rights of very vulnerable individuals, such as young prisoners and dementia sufferers; that can save whole communities from wrongful decisions by the state, such as when the closure of Lewisham’s accident and emergency department was ruled unlawful; and that can establish the law on important points of policy, often with the help of expert bodies that intervene to assist the court on a point of general principle. It is, as Liberty says,

“a crucial tool which allows ordinary people to challenge decisions by the authorities—either because they’re unlawful, irrational, or made in the wrong way.”

I suspect that if their lordships had not been interrupted by other business, they would have continued to neuter the clauses that deal with judicial review. As it is, they stopped at just three defeats for the Government, each of which was important. We urge all Members of the House to vote against the motions to disagree in respect of each of the clauses at issue. For the avoidance of doubt, we will press to a vote, just as their Lordships did, the matters that relate to the “highly likely” test, financial information, and interveners.

[Chris Grayling]

Since the hon. Gentleman has indicated his intention to support all the Lords amendments, will he explain why he thinks it appropriate to allow organisations that back judicial reviews to remain anonymous?

[Mr Slaughter]

I will not speak for long because we have limited time, but I will come on to those matters in a few moments.

It is not only Labour peers who were rallied by Lord Beecham who share our view. Indeed, as he pointed out, the Lord Chancellor’s proposals have been roundly condemned by every independent and bipartisan body that considered them, including the Joint Committee on Human Rights and other Committees of both Houses. Furthermore, the former Conservative party chairman Lord Deben referred to the changes as “out of line” and “unacceptable”, and Baroness Williams called them an “act of absolute tragedy” that she was “very troubled” by. Lord Howe voted against the Government, as did many pillars of the legal establishment—so much for the Lord Chancellor’s left-wing plot.

Each amendment that the Government have resisted has a particular point to make. On the “highly likely” test, all their lordships are saying is that judicial discretion should be retained, and that the court may refuse judicial review if it concludes that it is “highly likely” that the outcome for the applicant would not have been substantially different had the conduct complained of not occurred. If we stick with the Government’s proposal and disagree with the amendment, public bodies will be allowed to escape responsibility for unlawful decisions. In the long run it would change the role of judges in judicial review cases as they would be invited to second-guess how decisions have been taken. The Government are confusing remedy with unlawfulness, and potentially creating far more problems at earlier stages of judicial review cases—and causing far more court time to be taken up—because the court will have to consider the implications of its decisions and not the process under review, as is the case at the moment.

On financial barriers, the evidence—I emphasise that word—of practitioners and those who have represented parties on all sides suggests that the chilling effect of the clauses will be felt first by people of limited means who look for support in their judicial reviews. That could be family members—for example in a care home case—or individuals in a community, perhaps on a planning case, but it could also be charities and other not-for profit organisations. Such organisations have said clearly that although they are currently prepared to support judicial review proceedings, if there is a risk that the court will look at the funders and potentially penalise them in costs, their trustees will not be prepared to continue doing that, whatever their support for the individual action. Each clause in part 4 purports to be a simple tinkering change and a way of dealing with things at the margin to ensure that unmeritorious cases do not come forward. However, evidence from the judiciary, practitioners, interveners and everyone who has participated in the process suggests that the clauses will have a chilling and discouraging effect. That is as true for provisions on financial barriers as for the “highly likely” test or interveners.

The issue of interveners has taken centre stage, and at an early point in proceedings the Government said that they would table amendments to deal with the concerns expressed. We had one of those little dances that takes place between the Liberal Democrats and the Government, when the Liberal Democrats say, “We’re not happy with this, can we have a concession?”, and grudgingly, at the last minute—last Friday in this case—we have a concession.

Let us consider the concession the Government are proposing. What they originally proposed, and what the House of Lords disagreed with, is the idea that only in exceptional circumstances and very rare cases would interveners be protected from paying costs. That does not mean their own costs, which interveners customarily pay, but those of all parties involved. That was clearly wrong, and the Government appear to accept that. As the deputy president of the Supreme Court said, interventions are of great assistance to the court and there can be merit in interventions. Therefore, amendments have been tabled. It is clear why Labour supports what the House of Lords said, and that the matter should be—as it is now—at the discretion of the court. The court has completely adequate powers, should it wish to exercise them, to punish or find against interveners on costs if it believes there is no merit in the intervention or if it believes—this is unlikely—that time has been wasted during proceedings. That matter is currently, and should properly remain, at the discretion of the judge.

Let us consider the amendments, because this is the most disingenuous part of the debate. We waited months—since June, I think—to see what concession the Liberal Democrats with all their bravery had wrung out of the Government. The opinion of everyone who has considered the amendments since they were published just before the weekend is that not only do they not address the issue, but they make the situation worse. The reason for that is simple. Previously, there could at least be exceptional circumstances. Now, a series of criteria must be met, otherwise a mandatory duty means that all costs associated with the intervention would be recoverable by all other parties, including losing parties. Therefore in certain ill-defined circumstances, the court would have no discretion to act to prevent an unjust outcome, despite interveners having been granted permission to intervene by the court, and encouraged to proceed. That will have a more damaging effect than the Government’s original proposal to create a presumption that costs would be payable except in exceptional circumstances. Only this Government could make the situation worse by making a concession.

In a way, the wording does not matter. The net result of those criteria is to set up retrospective tests that mean that the chilling effect will apply. Interveners are typically charities, not-for-profit organisations and others who may perhaps have funds to pay their own costs, but will not risk the definition of terms such as “in substance”, “taken as a whole”, “significant assistance”, or whether something is “necessary” for the court to consider whether someone has behaved unreasonably. A judicial review often develops from the permission stage through to a full hearing, and during that time it is perfectly possible that certain facts become more or less relevant. What impecunious charity will take those risks? This is another attempt to pull the wool over our eyes by setting up impossible hurdles and mandatory tests where matters should be left to the discretion of the judge.

[Chris Grayling]

The hon. Gentleman is missing the point. Why should those who row in to back a judicial review that they lose be automatically insulated from the costs of doing so? He knows that time after time the taxpayer picks up the bill. This measure is simply to ensure that those who row in behind a judicial review but do not make a valid contribution to the process cannot be immune from facing the costs if they lose.

[Madam Deputy Speaker (Dame Dawn Primarolo)]

Order. May I remind both Front-Bench speakers, one who has already spoken and the other who has been speaking for rather a long time, that the debate ends at 7 pm and other Back Benchers wish to participate? The Secretary of State has got his points on the record, and perhaps Mr Slaughter will conclude his remarks so that we can call the Back-Bench speakers.

[Mr Slaughter]

I give up with the Secretary of State. We are talking about interveners, who are there to assist the court and broaden the issue where it is helpful for matters of public policy. If he cannot see that after having discussed the Bill since February, I really do give up on him.

The Government proposals would prevent judicial review if they can persuade a court that it is highly likely that an unlawful act would have been lawful if done differently. That is a recipe for poor decision making. They will hobble the attempts of people to raise the considerable funds needed to bring a case and weaken their ability to have protection from the Government’s costs if they lose. Most bizarrely, they discourage the intervention of expert bodies, such as charities and civil society organisations, which often assist the court in making the right decision. Under pressure on this last point, or to give the usual fig leaf to the Liberal Democrats, a series of last-minute amendments have been tabled by the Lord Chancellor on interveners, but the opinion of experts who have looked at them is that, if anything, they make the Bill worse.

Labour MPs will therefore vote to uphold judicial review and the rights of the individual against the state. We will oppose the motion to disagree with each and every one of the Lords amendments in this group. We will vote against the Government’s amendments in lieu. We may, I hope, be joined by one or two libertarian Tories, although I am not holding my breath. It will be interesting to see how many Liberal Democrats, so keen to shout about their love of liberty before voting for legal aid cuts in secret courts, will join us in the Lobby.

[Mr Cox]

I regret the tone of the hon. Member for Hammersmith (Mr Slaughter), which fell beneath the standards the House is entitled to expect on so important a matter. The tone was cynical and frankly insulting to those of us on the Government Benches who have spent many years of our lives fighting for the rights of individuals in the courts.

I should, before I begin, draw the attention of the House to my entry in the Register of Members’ Financial Interests. I appear in courts, specifically in the administrative court, quite frequently. [Interruption.] I hear the hon. Gentleman, from a sedentary position, hurling yet another insult. I do not know what he was like in the legal profession, but if he won as few arguments by his gracelessness and charmlessness as he is winning this evening, no doubt he switched professions with very good reason indeed.

In substance, many of the points the hon. Gentleman makes—they are not, I think, his; he is merely puppeting and gibbeting the points made by his betters and those more equipped than he to make the criticisms—are, I have to say, correct in the substance of the matter. That is why I say to the Secretary of State that, although one cannot always choose one’s friends in this House on specific topics, I am extremely troubled by what he is introducing. I sympathise with and understand the frustration that, he feels with the industry, it may well seem to those in charge of the Executive, that judicial review has become. I understand that, but my concern is that the measures my right hon. Friend is introducing are not well targeted or adjusted to the mischief he is seeking to suppress.

One of the examples I give is the provision to introduce a likelihood test as to the outcome of any judicial review. The problem with this measure is that it does two things, unintended no doubt in their consequence by the Secretary of State. First, it will turn permission hearings, and substantive hearings if permission is granted, into an immensely detailed and cumbersome process of trawling through fact and evidence so as to equip the judge to take a decision on whether it was more likely than not that the decision would have been taken anyway, and in order to demonstrate that it would have been taken anyway if the flaw had been identified by the judge. The presupposition is that the judge has identified a technical flaw, as my right hon. Friend would call it, either in consultation, natural justice or perhaps even discrimination. The public authority will then seek to justify its position by saying, “Well, it would have made no difference and you, the judge, on all of the evidence, can take the view yourself that this would have made no difference.” That converts the judge into the decision maker.

--- Later in debate ---

I urge the House to support the Government in agreeing with the Lords amendments in this group.

[Mr Slaughter]

Even by the Government’s standards, making 140 amendments in the other place, ranging from new offences and procedures to a plethora of corrections to drafting and operational errors, is remarkable. In the end, most of the matters are uncontentious or the Government have had notice of our objections in terms, so I can be succinct. We do not intend to press any of the Lords amendments in this group to the vote.

However, some issues require considerably more explanation and reassurance, not least the new role of the recall adjudicator. We welcome the fact that Ministers have recognised the additional burdens placed on the Parole Board. Labour has made that point repeatedly during the Bill’s passage. The Government’s impact assessment accepts that the Bill will create at least 1,100 extra Parole Board hearings at a time when its work load is rising and its staff numbers are falling. Nearly one in five staff has been cut since the last election, many of whom were vital supports to the 232 Parole Board members, who are paid per hearing. The staff left in place have to clear a substantial backlog of outstanding cases, while recent Supreme Court judgments have also impacted on its case load. With that in mind, we do not oppose the Government’s efforts to redress the burdens on the Parole Board in principle, but we need assurances on several points.

Introducing the provisions in the other place, the Minister accepted that

“the Bill is silent on the precise workings of the recall adjudicator”,

and that there is

“a great deal of further work to be done on the detail.”—[Official Report, House of Lords, 10 November 2014; Vol. 757, c. 14-15.]

Yet Ministers seem determined to rush through the changes with many questions left unanswered.

The Bill currently does not make it clear who the recall adjudicator would be, what the nature and scope of their role would be limited to, how the appointment process would work, what the costs of the new system would be, or how adjudicators would co-operate with other criminal justice agencies to ensure a fair, robust and effective system of recall. It is not clear what experience, training or expertise would be required of recall adjudicators.

So far, the Government have gone only as far as saying that they intend the positions to be filled by people with “significant criminal justice experience”. The point is best summarised by their impact assessment:

“Recall adjudicators will need to be carefully selected and trained and provided with a clear process and guidance to mitigate the risk of their release decisions either being too risk averse, which would add to the pressure on prison places, or failing to take full account of relevant risk factors, which could lead to the release of prisoners who breach their licence conditions and/or re-offend. This would have adverse consequences on the system as well as incur reputational damage to the MOJ.”

Such “reputational damage” to the Ministry of Justice means a risk to the public that decisions are wrongly taken. Can the Minister give the House any further detail on that point? The Government confirmed in the other place that they had

“certainly not ruled out the possibility of using magistrates.”—[Official Report, House of Lords, 10 November 2014; Vol. 757, c. 15.]

That has raised particular concerns, because magistrates have varying levels of experience and, as adjudicators, would be dealing with prisoners on sentences over and above their usual sentencing powers.

Furthermore, there has been no formal process of consultation on the adjudicator proposals, despite the significant changes that they would mean to the scope and function of the Parole Board. The Government committed themselves in the other place to present further reports to Parliament before this policy is taken any further. Will the Minister confirm what these reports will contain, when he expects them to be laid before Parliament and whether any further consultation will be carried out in the meantime?

The Government have failed to carry out an equality impact assessment on the introduction of adjudicators. Will the Minister explain why? This is perhaps the most crucial point. Until we know what proportion of those who are subject to recall have protected characteristics—I include in that young people, elderly people, people with a physical disability, those who suffer from a mental illness and those with other protected characteristics—and until we know whether those who will undertake the job are qualified to deal with those characteristics, we will not know whether the new system is fit for purpose.

Ministers have cited the Supreme Court judgment in the case of Whiston to show that the creation of a recall adjudicator will not be incompatible with human rights obligations. However, Justice has suggested that

“the case does not provide a full proof justification for the new position, as compared with the independent and suitably qualified Parole Board.”

Can the Minister offer the House any specific assurances on that point?

Finally on this matter, what assurance can the Minister give that the new system will be as robust as the current process? Risk assessing whether prisoners can be released back into the community is a complex judgment and the Parole Board has more than 40 years’ experience in it. Reducing administrative burdens is all well and good, but the cost of it must not be to cut corners and jeopardise public safety.

I welcome the Lords amendments that clarify the sentencing for driving and knife offences, as well as the new offences of police corruption and ill treatment or wilful neglect by care providers. The last of those was recommended by the Francis report. Although the Opposition are disappointed that the Government are not implementing Robert Francis’s recommendations in full, we are pleased that they are implementing his recommendations in this instance.

Those changes highlight the fact that this is a rather different Bill from the one that was first presented to the House earlier this year. The Government’s initial impact assessment confirmed that the measures in the Bill would create nearly 1,000 additional prison places. Since then, the Government have added several new offences to the Bill, many of them tabled just days before a debate in Parliament, with no specific impact assessment, and rushed through with limited opportunity for proper scrutiny. That is not a proper way to legislate. At the same time, our prisons have lurched further into crisis, with overcrowding and violence spiralling. Now that the Bill is back in the Commons, will the Minister give us the updated number of prison places it will require and where they will be provided?

I congratulate my hon. Friend the Member for Rotherham (Sarah Champion) on her proposals that became Lords amendments 73 and 143, which tackle child exploitation. She has championed those changes since the Bill’s Committee stage in the Commons. It is a testimony to the campaign that she has run and to the parliamentary inquiry she led alongside Barnardo’s that the Government have accepted her amendments and included them in the Bill. I also welcome Lords amendments 70 and 71, which relate to the creation of a new offence to tackle the increasing problem of so-called revenge porn.

The Lords amendments that relate to personal injury and fundamental dishonesty are very flawed. They will require a court to dismiss in its entirety any personal injury claim when it is satisfied that the claimant has been fundamentally dishonest, unless it would cause substantial injustice to the claimant so to do. Last Wednesday, I spoke at the Association of Personal Injury Lawyers’ autumn conference, where I heard the concern that, once again, the Government are stacking the deck in favour of defendant insurers. On these proposals, APIL commented that

“there is no provision in this clause for the defence to be dismissed. The rule of law demands a level playing field”.

It stated that the clause

“tilts that playing field firmly in favour of defendants and their insurers who pay compensation to injured people.”

It might be more appropriate to have a criminal standard of proof when questions of fundamental dishonesty are at issue.

There are minor changes on the new sentencing scheme for serious offences and to allow the President of the Supreme Court to report to Parliament on matters that concern that Court and its jurisdictions—those, we approve. There is also a large number of technical amendments. As I said, those are uncontentious.

The Bill has been going through the two Houses for almost a year and there are some things that we welcome either for technical or policy reasons, but there are a number of issues, which we debated earlier this evening, on which we are fundamentally at odds with the Government, principally in relation to secure colleges and judicial review. Any impartial observer would say that whatever the merits or demerits of the Bill, the way it has been presented has been somewhat chaotic. It is not good practice to begin with a moderately sized Bill and have to pack it with additional amendments throughout Committee, Report and Third Reading in both Houses, and on that basis it is perhaps not surprising that the other place has found so much to criticise.