Criminal Justice and Courts Bill

Guy Opperman Excerpts

Monday 24th February 2014 Commons Chamber

[Nick Herbert]

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

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

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

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

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

[Guy Opperman (Hexham) (Con)]

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

[Nick Herbert]

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

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[Nick Herbert]

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

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

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

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

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

[Guy Opperman]

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

[Nick Herbert]

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

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

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

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[Nick Herbert]

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

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

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

[Guy Opperman]

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

[Nick Herbert]

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

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

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

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

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

[Keith Vaz (Leicester East) (Lab)]

It is a great pleasure to follow the right hon. Member for Arundel and South Downs (Nick Herbert) who served as a distinguished Minister in the Home Office and the Ministry of Justice. It is still a puzzle to me why he is not in the Government, because I know they could use his considerable skills. He obviously enjoys being on the Back Benches more, even though we miss his appearances before the Home Affairs Committee.

I was fascinated by the exchange between the hon. Members for Hexham (Guy Opperman) and for Huntingdon (Mr Djanogly), but the House did not get to know what happened at the end of those discussions, and whether Hexham magistrates court is still open. Did the hon. Member for Hexham win his battle? He is my next-door neighbour in Norman Shaw North, and I need to know whether he wins such battles with the Government.

[Guy Opperman]

Despite 20 years of advocacy and despite what I felt was a very strong case, my youthful appearance in this House, and a vigorous campaign, the fact that the magistracy was not able to survive in the rural town of Hexham for the first time in 500 years was sadly a fact in the end. To be fair, the right hon. Gentleman will be pleased to know that the system is working relatively well with an urban core, but the Ministry of Justice—which is, of course, not at all a bureaucratic or difficult organisation to get control of—should be aware that although it is working, we do need a rural element in the magistracy going forward.

[Keith Vaz]

I thank the hon. Gentleman for that long explanation. I am surprised that he lost the battle, but I know he will continue with it.

When I was the sole Justice Minister in the Ministry of Justice—then the Lord Chancellor’s Department—I felt that the work load was quite high. We now have four Commons Ministers representing the Ministry of Justice, and of course it has taken on new responsibilities. I congratulate the Minister of State, Ministry of Justice, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) on his appointment. I think this is his first Second Reading debate; I do not know whether he will be winding up—

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[Keith Vaz]

The hon. Gentleman served on the Home Affairs Committee and therefore knows how the Home Office deals with such cases. If we were satisfied that decision making was robust and that entry clearance officers and those who reviewed their decisions always made the right decision, we would not need a right of appeal. As he knows, however, having sat through the Committee’s deliberations, 50% of appeals on immigration cases are won by the applicant. That does not mean that judges are cleverer than entry clearance officers, but it does mean that decisions have not been looked at carefully enough. If we take away that right of appeal, all people will have is the ability to challenge in the courts. Of course I do not believe it right for people to play the system and have multiple appeals, but if we take away the last vestige by which they can challenge decisions, we will leave them with absolutely no choice.

As I said, the previous Government suffered because they tried to stop citizens marrying foreign citizens in our courts. They were taken to court and judicially reviewed, and the court said, “You cannot do this”. Spouses had to go back and make applications, but the previous Government—as successive Governments have done—lost a number of such applications. I think we should look carefully at this issue. On its own it may not seem like a bad idea, but if we take away the right of appeal in immigration cases, as section 11 of the Immigration Bill does, that will create a number of problems. After all, 32% of deportation decisions and 49% of entry clearance applications were successfully appealed last year. We must look carefully at the issue.

[Guy Opperman]

I served on the Immigration Public Bill Committee and the overwhelming view was that, yes, the Home Office needs to get better—with respect, as the right hon. Gentleman will know, it is getting better at reviewing under the appellant procedures—but the fundamental point is that it cannot be right for there to be in excess of a dozen, and potentially up to 15 or 16, separate rights of appeal. The state, in the form of the Home Office and the Government, is right to review the number of times an appellant can go through the appellant process.

[Keith Vaz]

I have no objection to that. I agree with the hon. Member for Monmouth (David T. C. Davies) that we do not want multiple applications, but we should at least give people the chance of one application. It is not the case that they get legal aid right the way through. Many of my constituents come to me wanting to go to judicial review. I tell them that their best course of action is to leave the country and make an application from abroad. They will go through a better system and obtain a quicker result than they would by constantly staying here and going through the courts again and again.

[Guy Opperman]

With great respect, the implication of the last comment is that there is no right of appeal whatever in an immigration case. I am sure that that is not what the right hon. Gentleman meant to say.

[Keith Vaz]

The right of appeal will be taken away by clause 11 of the Immigration Bill. An application can, of course, be made in certain circumstances, but my understanding is that that Bill will reduce dramatically the occasions on which the Government can be judicially reviewed. We heard that from the Lord Chancellor earlier. He was quite delighted and thought it was a very good idea. I prefer that these decisions are taken by judges rather than by civil servants.

The hon. Gentleman has been a Parliamentary Private Secretary for the past four years, so of course he welcomes the improvements made by the Government. That period is too long and he too should be serving in the Government and I hope I have not damned his career by saying that. He has spent enough time dealing with civil servants. If he thought they were the most perfect creatures on this earth, we might as well hand over everything to them, let the officials decide and not give people the right to go to court. All I say is this: let us be cautious. The Government should look at this in the round and be sure that people have some avenues left to challenge decisions.

On new technology, I agree with the right hon. Member for Arundel and South Downs, the former Home Office Minister. When he was in the Home Office, he led the campaign for new technology. He is a Twitter person. On one occasion, he tweeted to ask me to go to the airport to meet him, as I had done with other members of the Select Committee—I agreed to do so, but he would not tell me his flight number—so I know that he likes new technology. The fact is that we need to be careful about allowing Ministers and officials to make decisions on new technology that they do not understand. He will remember the e-Borders project, which has so far cost the taxpayer £750 million. It was agreed without benchmarks and the litigation is still going on—it is still costing the taxpayer huge amounts of money. We should have new technology and we should pursue this programme, but we need to be very careful and very cautious not to hand everything over to those who come to us and say that they know everything. That is what happened under the previous Government in relation to G4S and Serco, and that has continued under this Government. As we now know, G4S overcharged the Government by £24.1 million. We will need a more extensive use of tagging, but if the tagging companies are not monitored, the contracts will not be properly dealt with and properly monitored. I hope that, in making better use of technology, we ensure that we have the accountability that the right hon. Gentleman and I have been talking about.

On the creation of a secure college, my worry is that we need to be very clear on what powers those who run the college will have. It sounds like a very good idea and we want to make sure that people spend more time in training. However, of the 16 deaths of children in custody since 2000, all occurred in youth offenders institutions and secure training centres. We need to learn the lessons of the deaths of those young people before we set up new institutions that are not capable of proper scrutiny. The Bill will allow a secure college custody officer to use reasonable force to ensure good order and discipline. It is important that we look at training and do not have any unfortunate incidents that result in the death or injury to young people in custody.

Drugs are a big problem, as we have discovered in Home Affairs Committee inquiries. Many young offenders acquire a drug habit when they are in institutions. I will give another plug to the book, which I have on my desk, by the hon. Member for Hexham. I am sure that all Ministers in the Ministry of Justice have read it. I am sure that the new Minister will have had in his briefing a copy of the book on rehabilitation written by the hon. Member for Hexham. If he has not read it, I will make sure that he gets a copy, because the hon. Gentleman is my next-door neighbour. There is very sensible stuff in the book, including the fact that people pick up the habit of taking drugs when they are in prison. That is why we believe there should be mandatory testing.

[Guy Opperman]

rose—

[Keith Vaz]

The hon. Gentleman is going to tell us which bookshops his book is available in.

[Guy Opperman]

The book, “Doing Time” is actually still available. Amazingly, there are a few copies left. I hasten to add, Madam Deputy Speaker, that all proceeds go to charity.

The serious point is this: the right hon. Gentleman, who served in the previous Government with the right hon. Member for Delyn (Mr Hanson), will recall that in 2008, when he was the police and justice Minister, he was asked a specific question. I cannot, off the top of my head, quote Hansard, but he indicated that evidence from the Home Office and the Ministry of Justice showed that 20% of all people who took drugs in prison acquired the habit for the first time in prison.

[Keith Vaz]

That is a stunning figure, one that has probably remained the same, or even increased, in the past few years. That is why we suggest there should be mandatory testing in prison and after people leave prison. The Under-Secretary of State for Justice, the hon. Member for Kenilworth and Southam (Jeremy Wright) does not like that idea. Whenever I raise it at Justice questions, he is never enthusiastic about it and thinks his system is better, but such testing would be a good thing.

I hope the new secure college will run sufficient courses. We will not write the curriculum right now, but let us ensure that as well as providing the basic education for young people that they so desperately need—another theme in the book by the hon. Member for Hexham—we teach them the dangers of drugs and try to get them off drugs.

I am a little concerned about the punitive elements in paragraph 2 of schedule 15, amending the Criminal Justice Act 2003. The figures show that 72% of male and 70% female sentenced prisoners suffer from two or more related mental health disorders. It may not be appropriate for them to be punished in a similar way to others. We must try to identify those who have a mental illness and end up in the criminal justice system and remain in it for years. In September, the Select Committee will undertake an inquiry into how the police deal—I say to the Chair of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), that we are not treading on his toes—with offenders with mental health disorders and see how that feeds into the rest of the criminal justice system. The figures are very worrying. We want to be tough and to punish people, but we need to remember that there are reasons why we perhaps should not send people to prison.

The Director of Public Prosecutions announced this morning that she would deploy six specialist lawyers abroad—in Dubai and in one or two other places—in an attempt to seize more assets from criminals linked to British cases. I welcome that announcement, because I think that we need to strengthen the way in which we investigate and then charge those who move their assets abroad. According to the National Audit Office, 80% of the £920 million owed by convicted millionaire criminals is yet to be repaid. My mathematics is not perfect, but I think that 80% of £920 million is nearly £850 million. Is that right, Madam Deputy Speaker? You seem to think that it is about right; you have probably been helping your son with his maths. Anyway, it is a huge amount of money.

We try to challenge the Mr Bigs, and the Mrs Bigs. They go through the criminal justice system, we fine them huge amounts of money, and then we find that about £150 million less than £1 billion has still not been collected. The Bill does not deal with that situation. I hope that, if it believes in joined-up government, the Ministry of Justice will look carefully at the DPP’s statement, and that amendments will be tabled in Committee to ensure that when judges fine billionaires and multi-millionaires, those people pay up. At present they simply go through the system, come out of prison and then disappear, and we suffer because our justice system has allowed them to get away with it.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I am very pleased to follow my fellow Select Committee Chairman, whose wise and thoughtful comments have, I think, raised the level of the debate to where the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) wanted it to be. I am not sure that the mental arithmetic of the right hon. Member for Leicester East (Keith Vaz) is quite up to scratch, but I am sure that he can improve on it with a little practice.

The Bill contains many provisions, covering matters ranging from misconduct by jurors to automatic release, and I have no intention of commenting on all of them. However, I will make one passing comment on the issue of trial “on the papers”, which strikes me as a perfectly sensible way of dealing with summary offences of a minor character involving guilty pleas when the defendant was not going to be present anyway. It is important for the public record to be clear and immediately accessible, and I hope that we can find a way of ensuring that that happens. There should be no secret justice; it should be readily apparent what sentences have been handed out by the courts, and to whom.

I want to concentrate on three issues. The first is the issue of the simple police caution, along with the wider issue of out-of-court disposals of which it is part. The Government’s consultation on out-of-court disposals ended in January, and I should be interested to know when they will respond to it. I think that the magistrates were right to be concerned about the dangers of inconsistency around the country, and about the fact that people did not really know what was happening. However, I also think that there is real value in police officers’ ability to exercise discretion in many circumstances, and that out-of-court disposals, as a broad group, open up numerous possibilities, including possibilities for simple restorative justice.

Restorative justice exists in many forms. Obviously it exists in post-sentence form, but there are simple kinds of restorative justice which I have experienced in my constituency. In the past, a police sergeant would say to an offender “The best thing that you can do is go to the person whose property you have damaged, give that person money to pay for the damage that you have caused, apologise, and ask whether there is any way in which you can help to make good what you have done.” Such measures are worth developing as part of neighbourhood justice.

I do not want the necessary codifying of the system of cautions to be seen as in any way discouraging the use of alternatives to traditional court procedures. As was suggested earlier, magistrates can be involved in the process. The Justice Committee visited Stockport recently, and observed that magistrates had been involved in a number of developments in the Greater Manchester probation area. When I asked why they were not hostile to those developments, the answer was that they had been involved from the start. I do not want us in any way to undermine the scope for out-of-traditional-court disposals in matters of this kind, because they may offer the best opportunity to enable young people, in particular, to move away from crime rather than becoming institutionalised into it.

The Union flag that flies outside my constituency office on the Queen’s birthday and other state occasions was once torn down by some people who then rather unwisely boasted about having done so, and were therefore quickly picked up by the police. The friendly sergeant instructed them to put together the money necessary to replace the flag and to write a letter of apology, which they all did. At least one of them was planning to go into the Army, and the sergeant pointed out that that person would not want to start off with a criminal record. It was a very sensible way of dealing with the matter.

The second issue that I want to raise is that of secure colleges. I do not think that there is any disagreement with the Government’s objective in that regard. A clear indicator of the likelihood of reoffending is a lack of basic education and skills. The evidence for that is overwhelming, and I think that the Government are right to focus attention—and, indeed, resources—on the provision of basic education for young people who have been caught up in the criminal justice system.

[Guy Opperman]

Will the right hon. Gentleman give way?

[Sir Alan Beith]

I will, although I want to raise a number of points that the hon. Gentleman may wish to follow.

[Guy Opperman]

May I compliment the right hon. Gentleman on what he has said so far? Does he agree that there is potential for secure colleges to be run not just by the state, but by individual institutions, churches or charities? Academies have transformed education, and there is surely no reason why academy-style secure colleges could not be established in the longer term.

[Sir Alan Beith]

That sounds like an attractive idea. However, there are some problems to which I do not yet see a solution, although I agree with my neighbour from Hexham that plenty of people in both the charity sector and the private sector have something to contribute to the process.

The first problem, which was identified by my Committee, is that the average length of custody is 79 days. That is not a period in which a programme of education can be developed, and greatly extending periods of custody is not part of the Government’s policy. Secondly, people going into custody do not do so neatly at the beginning of a term or an academic year; they go when the courts have sentenced them. It is difficult to provide a range of basic educational courses for people who go into custody for relatively short periods and at different times, and it involves paying a price. Some of those people will be much further away from their local communities than they would have been if they had been dealt with under the previous system, especially if the college has been created at the expense of, for example, secure children’s homes. I should be very concerned if those ceased to be available because a college was being opened in a much more distant place.

I think that the Government have quite a bit more thinking to do about how they can realise their very desirable objective of providing basic education by means of some kind of secure college framework. It would be wrong to assume that it is possible simply to set up a large institution in one part of the country, and that people who are in custody for relatively short periods in a constant turnover will fit neatly into a programme of education. The objective is right, but the means have yet to be fully explained.

The “reasonable force” argument was mentioned earlier. I had a word with the Minister about that. I think that there may be some confusion about it. It needs to be made clear that there will be no breach of article 3 of the European convention on human rights in secure colleges, and that reasonable force is used for the purpose for which it is provided—that is, for the safety of those in custody or of those around them, including those who are superintending the education for the purpose of which they have been placed in a secure college. There needs to be a safe environment.

By way of offering the Government a warning of the difficulties involved, I shall quote what the chief inspector of prisons, Nick Hardwick, said in his oral evidence to the Select Committee. He pointed out that the youth custody population is not what it was two or three years ago, for the obvious reason that it is much smaller. That means that we now have the more intractable and difficult cases in youth custody, to which we are trying to apply this new system. He said that

“the nature of the juvenile population you now have in custody is different from what it was a year or two ago. The Government need to take that into account…What you now have is a higher concentration of the most troubled, most at-risk and most risky young people, concentrated in a very small number of establishments…You have to make sure that your future accommodation arrangements can guarantee the safety”

of those young people. He went on:

“It is not simply about the number of teachers you have; it is about whether you have the staff to get young people safely from their unit to the classroom, without trouble occurring en route, and to make sure that the teaching environment is safe and secure.”

Those are big challenges for the programme that the Government have set out.

My third topic is judicial review. The Public Bill Committee will need to look closely at the proposed change in the threshold for exclusion of judicial review from it being “inevitable” to being “highly likely” that the successful challenge would not change the outcome. There could be a risk of the argument becoming about the substance of the case, rather than about process. Judicial review is supposed to be about process. It is not an appeal mechanism in which the decision is considered by an alternative decision maker; it is a review of the process that has been carried out. However, if an argument had to take place about just how likely it was that the success of the review would make no difference, that would involve going quite deeply into the substance of the matter. The wording of that proposal will therefore have to be looked at carefully.

More generally, judicial review is inconvenient for the Executive. It is a nuisance, and the initials “JR” strike fear into the hearts of Ministers and, even more, of the civil servants who are always reminding Ministers about judicial review. However, it is a discipline by which we ensure that proper process is followed. It would be unsatisfactory to strip away that discipline completely and to say, “It doesn’t matter if you get the process wrong, as long as you make sure it’s not likely to affect the outcome.” The wording of this proposal also needs to be looked at, as do some of the cost attribution issues that have been raised today.

There is a problem when judicial review is used to try to delay a case sufficiently for the window of opportunity for something to happen to be closed, but such cases are few and far between. If we leave aside immigration cases, the increased use of judicial review is nothing like as big a problem as it was thought to be. The increase was identified as being primarily a result of immigration cases. I hope that the Bill Committee will look carefully at the wording of those measures. We must recognise that we need to maintain the discipline and that, if the law requires us to go through certain processes, we must go through them. If we do not, we run the risk of bringing trouble into court. I am referring not only to the Government in this context; this applies also to a wide range of local authorities and major infrastructure industries.

It would be wrong for me to conclude without referring to a point that has been underlying much of the debate—namely, that these are aspects of the criminal justice system whose primary purposes will be addressed only if we achieve further long-term reform. I see that reform as involving primarily what my Committee has called justice reinvestment—that is, taking resources away from the damaged end of the system and putting them into the beginning, so that victims do not become victims in the first place because crimes do not happen. We must ensure that we direct the resources to the appropriate areas, just as the Government have sought to do in the transforming families programme, so that they prevent crimes from happening in the first place. We need to create a virtuous circle in which we do not need so many prison places because fewer crimes are happening. We had an opportunity to do that, and crime levels have been falling, but that opportunity has unfortunately been compromised by the difficult financial situation in which the Government have found themselves. That means that it has been much harder to prime the pump, or to put in extra resources.

That brings us right back to the ultimate purpose of justice reinvestment, which is to move resources. In order to do that properly, we need to address a matter that the hon. Member for Hexham (Guy Opperman) mentioned earlier—that is, something that the Select Committee calls local commissioning. In such a system, the decisions about the resources needed to deal with crime are made by all the agencies that have to handle crime at local level. Many of those decisions are now made locally, which is a good thing, but one crucial one is not: the decision on how much money is spent on prisons and where that money is put. That is still very much a national decision and it will remain so under the Government’s present policy.

I believe that we will achieve more in crime prevention when we have a rational allocation of resources at local level by all the organisations involved. They include the police, the courts, the magistracy and the judiciary, as well as the youth offending teams and all those in the voluntary sector who are becoming involved in these processes. Quite a lot of good practice has developed—in youth offending teams, for example—and the lessons from that need to be learned throughout the criminal justice system as a whole.