Criminal Justice and Courts Bill
Debate between Andy Slaughter and Julian Huppert(10 years, 5 months ago)
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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.
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.
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.
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.
Justice and Security Bill [Lords]
Debate between Andy Slaughter and Julian Huppert(11 years, 8 months ago)
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Dr Huppert
The hon. Gentleman has again made references to matters connected with the Liberal Democrats in regard to which he was factually wrong, but I do not have time to correct them all. However, may I take him up on his point about our being “in a position to do so”? Let us say that after the next election there were some Labour involvement in the resulting Government. Would he then commit himself to repealing part 2, or is he in favour of it when it comes down to it?
Mr Slaughter
I certainly would not commit myself to repealing part 2, because it includes the Norwich Pharmacal jurisdiction, which we support.
Finally, let me deal with the new heresies that have been slipped into the Bill during its passage in the House of Commons. I have time only to raise the issues rather than exploring them; further comment must be a matter for the other place.
The first of those issues, which was raised by us in Committee but not dealt with satisfactorily by the Minister, relates to clause 6(4)(a), which currently sets as a condition precedent to the court’s ordering a CMP that
“a party to the proceedings…would be required to disclose sensitive material in the course of proceedings to another person (whether or not another party to the proceedings)”.
We fear that the provision will be used in part to prevent the use of confidentiality rings, allowing the citizen's own lawyer to be excluded from receiving information. It was that eventuality that we sought to prevent through our amendment 28, which was not reached on Monday but which would have added the words
“and such disclosure would be damaging to the interests of national security”.
Our second significant concern relates to Government amendment 46, which was tabled only last week and was introduced to the Bill on Monday. There has been no opportunity to debate the amendment, which adds to clause 6(7) the phrase
“or on such material that the applicant would be required to disclose'”.
That appears to allow an application for a CMP to be made on the basis of irrelevant material which is not the sensitive material that the party applying—usually the Secretary of State—fears having to disclose. It may therefore allow the court to take into consideration material that is merely embarrassing or damaging to international relations. The Government have excluded such material from consideration in the CMP, but it seems it may now be adduced to trigger the process.
If we are right about that, there are other ramifications. The gisting requirements—which, as the special advocates have pointed out in their latest submission, are already very weak in the Bill—ask the court to consider, not to require, a gist, and thus allow a case to be decided entirely on the basis of evidence that one party has had no right to challenge. In addition, a gist need only be made of material that is disclosable. That presents the possibility of a CMP being granted on the basis of non-disclosable material, and the court not even being asked to consider whether it is necessary to gist that material to the open lawyer or client.
This is not so much a bad Bill as a Bill with a bad heart. We will not be voting against Third Reading, because there is much in part 1 that we support, but we believe that even at this stage the clauses on CMPs can be improved—indeed, must be improved. We look to the other place once again to provide the necessary heart massage. We hope that the Justice and Security Act will secure an effective way of trying difficult cases with serious national security implications without jeopardising hard-won and much-prized principles of fair and open justice. We have never excluded the CMP option, but we believe that it is such an affront to the basic, open and fair principles of English common law that it must be confined to the tiny minority of cases in which proper judicial discretion and other tried and tested methods have been exhausted.
Justice and Security Bill [Lords]
Debate between Andy Slaughter and Julian Huppert(11 years, 8 months ago)
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Dr Huppert
I thank the hon. Gentleman for constantly plugging my Twitter accounts, as he did earlier, and Liberal Democrat Voice, and I recommend that he looks at it more often. I know Jo Shaw very well and we speak quite regularly. I think she would share my position of trying to push the vote on amendment 1, rather than that of the hon. Gentleman, and I am sure that if one asked her she would say she does not agree with his position of being in favour of closed material proceedings in principle.
Mr Slaughter
I do not think that is for this debate, but good try. I should follow the example of my boss and try not to antagonise the hon. Gentleman if I want him to vote with the Opposition on this matter. That may be contrary to what he said last Thursday, but it is in line with his party’s policy, what he did in Committee, and what seems to be the current position in Liberal Democrat Voice. We have heard enough of that; let us consider the Joint Committee on Human Rights, which stated in a short but telling paragraph in its most recent report:
“We also reiterate the recommendation in our first Report that the Bill provide for annual renewal, in view of the significance of what is being provided for and its radical departure from fundamental common law traditions.”
I am not sure one needs to go much further than that, and that lies at the heart of new clause 4.
Anyone who has sat through this debate, or previous debates in the other place or Committee, cannot be under any illusion that this Bill is complex, controversial and important, above all, for the reasons given by the hon. Member for Chichester (Mr Tyrie): it attacks and deals with fundamental issues of fair and open justice. It is also, I am afraid to say, confused—perhaps deliberately so—and has had a very confused birth. The Minister said that, contrary to comparable legislation, this Bill has made slow, stately and clear progress, but I beg to differ.
I do not think that anyone would quarrel with my assertion that the Bill is complex. It is complex even for lawyers, 702 of whom wrote to the Daily Mail last week saying that they would not support this part of the Bill. Views have been expressed either way on it, and I respect the views of lawyers from the senior judiciary and the Supreme Court, as well as of human rights lawyers and special advocates. We are not short of legal opinion on this matter, and it is not of one mind. Overwhelmingly, however, it takes the view that this is territory into which we should proceed with great care and great caution.
I do not think that the Minister would deny that the legislation was controversial, either. He will find similar sentiments on it being expressed in normally Conservative-supporting newspapers such as The Mail on Sunday and normally Liberal Democrat-supporting newspapers such as The Guardian. Huge amounts of thoughtful concern are being expressed across the press about the provisions.
I have heard the Minister without Portfolio say many times that secret courts were undesirable and that we would not have them if we did not need them. Where we differ is on how we should use the provisions and how far they should go. Some say that they should not go any distance at all, while others say, as we do, that they should be as closely constrained as possible.
The Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) does not agree with my view that this is a confused measure. I am not going to repeat the vaudeville act that I so enjoyed doing in Committee, in which I pointed out the four different positions that the Liberal Democrats had held on the Bill, some of them simultaneously, or the four occasions on which the Minister without Portfolio had announced that he had seen the light and decided that he was previously wrong to be so terribly authoritarian and that he now had a package of measures that would ensure full judicial discretion and that CMPs were de facto, if not expressly in the Bill, to be used as a last resort. I think we have all seen through those posturings, which were adopted primarily for political purposes.
We have only to look through the list of amendments to the Bill and at what will be in the Bill after tonight—until such time, I hope, that some of it is removed again in the other place—to see that this is all hugely controversial. Yes, we have the six markers that were put down in the House of Lords, and I accept that two of those—the least far-reaching—have been accepted by the Government. The move from “must” to “may” opens the door to judicial discretion; there is agreement on that. There has been some peculiar dithering about equality of arms, which is a strange term to use in this context as it refers simply to the ability of both parties to apply to get into a CMP; it will have nothing to do with equality of arms once the CMP has been invoked. That proposal was put in, taken out and put in again by the Government. I am not making a point about that; it is in there now and the Government are supporting our amendments on that tonight, but—
Cycling
Debate between Andy Slaughter and Julian Huppert(12 years, 9 months ago)
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Dr Huppert
I thank the hon. Lady for making that point. I suspect that many Members wish to intervene, and I will give way as many times as I can as long as they are brief.
I met the Mayor’s director of the environment yesterday specifically to talk about the Bow roundabout. I notice that the London cycling campaign has some proposals on the matter as well. It is not in my constituency and I am not an expert on the details. There are clearly other such junctions where much more work needs to be done to make them safe.
Dr Huppert
I should like to move on from the Bow roundabout. Members will have the chance to speak later. I do not want to take up too much of anyone else’s time.
There is rightly intense media interest when cyclists are killed or seriously injured. Such stories are vital and often harrowing. The Times campaign is partly based on the awful injuries suffered by Mary Bowers, who is a journalist and a former student from my constituency. The stories highlight the need for improved safety. One of the problems is that Government policy has tended to be largely reactionary and that has put people off cycling, which is a real problem. The evidence is clear that the more people who cycle, the safer that it gets. There is a strong group effect in that regard.
One study showed that if the number of cyclists is doubled, the accident risk is reduced by more than a third. The Dutch have a lower accident rate because of, not in spite of, the number of cyclists. Anything that deters people from cycling is very damaging and risks increasing the dangers for all.
Dr Huppert
My hon. Friend is absolutely right. Rural towns and rural areas can also do things to promote cycling. The details will obviously be different, but the principle is the same. The benefits from having more cyclists on our roads are also the same, in that drivers and other road users will understand what is happening.
Dr Huppert
The hon. Gentleman is being very persistent, so I will give way.
Mr Slaughter
I am very grateful to the hon. Gentleman; he is being very generous. Does he agree that one easy and cheap way of improving cycling safety is to improve training? One of my constituents, Philippa Robb of londoncycletraining.co who is here today, says that two hours of training costs £70 and would absolutely transform cyclists’ safety on the road. We are not talking about millions of pounds of infrastructure investment. Of course we need other measures as well, but surely that is something that the Government can do. Companies, too, can get involved. They often sponsor the cycle-to-work scheme but not the training.
Dr Huppert
The hon. Gentleman is absolutely correct about training support, and I will talk later about that issue. I am very pleased that the Government have continued to fund Bikeability training for young people. It is very important to catch people at a young age.