Criminal Justice and Courts Bill

Lord Beecham Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Beecham (Lab)]

My Lords, another parliamentary day, another Criminal Justice and Courts Bill. The House will be grateful to the Minister for his comprehensive guided tour of the Bill’s proposals but the reality is that we are presented once again with a veritable pot pourri of legislative proposals, the customary mix of the worthy and the welcome, the half-baked and the harmful. This time, some 16 measures were added to the mix two days before Report and Third Reading in the Commons, with little or no time for debate. Therefore, they arrive here today effectively sight unseen.

Today, a pot pourri merits this dictionary definition:

“A mix of dried petals and spices in a bowl designed to perfume a room”,

but the original French stands for a stew made from different kinds of meat—literally a rotten pot—and too much of this Bill fits the latter description.

There are certainly parts to welcome—for example, the provisions about police corruption, extreme pornography, malicious communications and care worker offences of ill treatment or wilful neglect. However, there are others, notably those dealing with secure colleges and judicial review, which demonstrate the propensity of this Government in general, and this Lord Chancellor in particular, to indulge in grandstanding on issues of crime and justice on the basis of the most tenuous evidence, and with a disturbing determination to curtail judicial discretion.

I will deal later with those matters but, at this stage, will cite two examples of the Government’s cavalier approach. The first is the headline-grabbing proposal, referred to by the Minister this afternoon, to increase the maximum sentence for causing death by dangerous driving while disqualified to 10 years’ imprisonment. It is a serious offence, but one of which only 13 defendants were convicted last year. The second is the claim that the number of cases of judicial review has soared from 4,500 a year to 12,400, which was repeated by the Minister in last Thursday’s Times, whereas almost the entire increase was due to asylum and immigration cases, which are now dealt with under the tribunal system, not by judicial review, thereby reducing the workload and, presumably, therefore, the cost, of the Administrative Court by nearly two-thirds.

A more insidious approach is the trend in criminal law of imposing mandatory sentences, and in judicial review of making it more difficult and potentially much more expensive to challenge the lawfulness of decision-making by the state or its agencies. On these matters, the Joint Committee on Human Rights has been forthright in its criticisms, but the Government, as ever, merely shrug them off.

Part 1 of the Bill, whose objectives of protecting the public we entirely endorse, contains provisions which exemplify the failings that I have mentioned. Thus, Clause 4 will require an under-resourced and overstretched Parole Board to be involved in determining whether prisoners serving extended sentences should be released, as automatic release rules are changed. What proposal do the Government have to provide the Parole Board with the additional resources that it needs to cope with its present workload, let alone that which would flow from the provisions of this Bill?

Clause 6 makes electronic tagging mandatory for offenders released on licence, under regulations to be prescribed by the Secretary of State, despite the lamentable experience of the current tagging system, which is used essentially to check whether curfew or exclusion requirements are complied with. What will be the benefits and the costs of this quantum leap in the application of tagging? Do the Government accept that the code of practice to govern the use of tagging will be subject to parliamentary approval? Will a draft be available for the Committee stage of this Bill, or at least on Report? Clause 7 imposes extra work on the Parole Board in respect of prisoners recalled from release, when what is surely needed is effective supervision of such prisoners. Clause 8 gives the Secretary of State the power to change the test for release after recall by regulation, when this should surely be done by primary legislation.

Part 2 of the Bill deals with young offenders. I will come later to the question of secure colleges, but I welcome Clause 32, which requires the presence of an appropriate adult when a youth caution or youth conditional caution is given to someone under the age of 17. I join the Magistrates’ Association, however, in requesting guidance on the definition of an appropriate adult. Part 3 will allow minor offences to be dealt with it on the papers by a single magistrate—in effect, in chambers—where a defendant has not requested a hearing. My noble friend Lord Ponsonby will speak to this issue, but having only last Friday met magistrates of the Northumbria Bench, I incline to the view of those who say the defendant should have to agree to such a course, where appropriate, after proper advice. After all, not everybody who receives a court communication will be able to understand it. I am also sympathetic to those who say two magistrates should sit on such cases, although perhaps there should be an experiment to see whether there is a satisfactory outcome with a single magistrate. In any event, disposal should be in public, not necessarily in the traditional court room, so that justice can be seen and reported to be done.

A more troubling proposition is contained in Clause 42 in relation to criminal court charges—to which the Minister referred—under which offenders should be made to pay towards the cost of running the courts. This clause is a classic example of the Government’s casual approach to legislation. The requirement is mandatory, when it should, if imposed at all, be discretionary and decided by the judges. There is no impact assessment, either on the offender or the cost of enforcing the system. It ignores the risk that people may plead guilty, at least to the less serious charges, on financial grounds; and ignores both the reality of life for offenders and the system’s present inability to deal with unpaid fines and confiscation orders.

The Prison Reform Trust points out that offenders are twice as likely to have employment problems as the average, four times as likely to have housing problems, 13 times as likely to be homeless, and three and a half times as likely to be in debt. Meanwhile Justice points out that Her Majesty’s Courts and Tribunals Service is owed £2 billion— including £1.3 billion in unenforced confiscation orders—and in 2010 the debt for criminal penalties was £608 million, two-thirds of which had been outstanding for more than 12 months. One might have thought that the Government would give priority to collecting these debts, rather than creating this new provision.

Finally in Part 3, I mention the belated inclusion in Clause 45, no doubt once again at the behest of the Conservative Party’s friends and supporters in the insurance industry, of yet another mandatory requirement, namely that if the court in a civil case is satisfied on the balance of probabilities that a claimant has been “fundamentally dishonest”—whatever that means—in relation to his claim, it must dismiss the claim unless this would cause substantial injustice. Again, this is presumably a moveable feast. Of course, a court can already penalise a claimant in costs if it is satisfied that a claim has been exaggerated but, more to the point, this is an entirely one-sided sanction. A defendant behaving in similar fashion would suffer no penalty, even though such conduct in a personal injury claim could itself add to the claimant’s suffering.

I now turn to the two most controversial elements of the Bill: secure colleges and judicial review. In relation to the former, the Government’s transforming rehabilitation programme appears to have failed. The Secretary of State has reoffended. There is an uncanny similarity between what happened over the probation service in the Offender Rehabilitation Act and this proposal. Once again, the Government are pressing ahead with their policy in advance of parliamentary approval, although at least it has not been left to Members of this House—as it was last year with probation—to ensure that the matter is debated. Yet the Government are appointing a contractor, before the Bill is enacted, to build a 330-place college. Admittedly, it will not be built before the Bill is enacted but, even so, one might have thought that this was somewhat premature. The important point, however, is that such a college would account for as many as a quarter of young offenders in detention. The objective of providing education is of course welcome, but it is self-evident that many youngsters would be a long way from home, and there are serious questions about the desirability of housing girls alongside boys and the youngest offenders alongside those in their later teenage years, as the Joint Committee on Human Rights has pointed out. There is also the question of cost. The Prison Reform Trust legitimately asks where the £85-million cost is coming from.

More important is the apparent determination of the Government to rely once again on some private sector provider to run the establishment and, significantly, to confer on it and its employees the right to use force to maintain good order and discipline,

“if authorised … by college rules”,

as set out in Schedule 6. Who will make these rules? Will they be subject to parliamentary approval, and if so by which method? Why have the Government rejected the advice of the Joint Committee on Human Rights that the use of force on children and young people for the purpose of good order and discipline is incompatible with Articles 3 and 8 of the European Convention on Human Rights? Why will they not adopt the committee’s obviously correct formulation that secure college rules should,

“only authorise the use of reasonable force on children as a last resort; only for the purposes of preventing harm to the child or others, and that only the minimum force necessary should be used”?

We have heard too many disturbing accounts of excessive force being used by private contractors on inmates of Yarl’s Wood and on deportees to countenance the possibility of similar actions in secure colleges. This policy—the objects of which we of course agree with—needs rethinking The Government should pilot a much smaller scheme with a narrower age range, close to where the children come from. It is difficult to avoid the suspicion that, as with the larger adult prisons the Government are bent on building, they are more concerned with reducing per capita costs than providing the necessary services at an appropriate and local level. Wholesaling and warehousing large numbers of damaged and vulnerable youngsters is not the way forward.

Finally, and perhaps most disturbingly, we come to Part 4 and the Government’s latest efforts to undermine judicial review. The Government are very deliberately making it much more difficult to challenge the lawfulness of decision-making, at least for those with limited financial resources. I have already disposed of the bogus claim that the current case load is excessive. Let me now deal with the barriers that are being deliberately being put in place to obstruct access to justice in this area, so vital to our democracy and system of government. Let us not forget the fences already in place in the form of restrictions to legal aid and on the payment of fees for preparatory work, which so often leads to matters being satisfactorily resolved without proceeding to trial. Once again substituting their judgment for that of the judiciary, the Government, in Clause 64, impose a mandatory requirement to refuse relief at the permission stage,

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

How can the court do that without a full consideration of the case? In that event, where is the saving? How, given that legal aid is not available for that stage, can a claimant make his case? Moreover, if procedural or legal errors are made, there must be some mechanism by which those failures can be challenged, even if the ultimate outcome is the same. That is what the rule of law requires.

Clauses 65 and 66, to which the Minister referred, deal with the finances and membership of applicants and organisations and require the court to take that information into account when determining costs—another mandatory imposition, clearly designed to discourage organisations and supporters, including, as Liberty points out, charities, solicitors acting pro bono or even family members, from supporting a claim where no legal aid is available. That principle is extended by Clause 67 to interveners: those who, after applying for the leave of the court to intervene to take part in the case—a necessary step—can then be required to pay not only their own costs but any costs incurred by other parties as a result. Only exceptional circumstances, typically not defined, but originally to be defined by secondary legislation, would avoid this. However, the court already has discretion in these matters. Why include this provision at all, except as a deterrent? We are talking, essentially, about public interest intervention, not individuals pursuing their own interests. In the Bill as it stands, there is a clear threat to organisations such as Liberty, Justice and the Howard League, which have played such an important part in defending the rule of law. I very much welcome the promise the Minister has made today. I hope there will be a judicious review of an injudicious proposal and that we will have an opportunity to see the results of that in Committee.

The Secretary of State has claimed that pressure groups use individuals as “human shields” to challenge the Government—a claim rejected by the Joint Committee on Human Rights and the Public Bill Committee. Moreover, as Liberty points out, the court has discretion as to whether to allow an intervention. We look forward to hearing the outcome of the Minister’s latest deliberations.

Two further matters that relate to costs are contained in Clauses 68 and 69. Cost-capping orders for claimants are welcome, but crucially can be made only on application after the permission stage. Much work will have been done up to that point and there will be no protection from liability for costs for an applicant if unsuccessful. That is no great problem for a developer seeking judicial review against a local authority, but it is quite otherwise for an applicant of modest means or a charity. The provision that secondary legislation may specify the ingredients of a public interest claim is absolutely unacceptable, especially as the Government are likely to be the defendant in many judicial review cases. Clause 69 once again imposes a mandatory duty to limit the costs that can be recovered by an applicant with a controlled costs order, thereby creating reciprocal costs protection to the defendant entirely irrespective of means. Equally, that is an entirely unreasonable fettering of the existing judicial discretion.

As I have said before, despite the assurances of the Minister, judicial review, like legal aid, is being deliberately dismantled. Characteristically, the Minister has given a lucid exposition of a deeply flawed Bill. The Opposition will work with others across the House to improve it where we can and oppose those provisions that we cannot. There are thoughtful Members on the government Benches who must share some of the misgivings that will be voiced around the House today. I hope we can work together in the interests of justice to improve this legislation.

--- Later in debate ---

[Lord Hunt of Wirral (Con)]

My Lords, first I declare my interests as set out in the register, in particular as a practising solicitor and partner for the last 46 years in an international commercial law firm, DAC Beachcroft. I am also very proud to be vice-chairman of Justice. I am relieved and pleased to see in her place the chair, the noble Baroness, Lady Kennedy of The Shaws. I know that she will deal with some of the points, in particular those just raised by the noble Baroness, Lady Campbell of Surbiton, because Justice is concerned that the Bill raises significant issues in its proposals for the change to criminal and civil law regarding access to justice. I think we all want time to reflect on what the noble Baroness said about Clauses 64, 65 and 66, and we look forward to hearing the Minister’s reply.

I wish to concentrate on two areas, referred to by the noble Lord, Lord Beecham, from the opposition Benches. I would first like ask him why he looked at me so critically when he said “cavalier”. I am not quite sure why he did this. I could respond by saying that it takes a Roundhead to spot a Cavalier, but I would not dream of doing so.

[Lord Beecham]

The noble Lord makes precisely the remark I was about to make. I was not conscious of looking at the noble Lord. A cat, of course, may look at a king. I hope I may look at the noble Lord occasionally.

[Lord Hunt of Wirral]

I am relieved, mainly because I always pride myself on being a master of the single entendre, so I am happy I did not go down that route.

I formally welcome the Bill as an opportunity continually to revise the law. In many respects this House points out, as the noble and learned Lord, Lord Lloyd of Berwick, did once again, that we must be very careful about passing new laws and new provisions, but we must always reflect on how we can improve the existing law while always avoiding the law of unintended consequences. I suppose I could slightly misquote Socrates by saying that good people do not need laws; bad people will always find a way around them. Therefore, we must proceed with caution, particularly when we create new offences.

If I could I will also add my own experience of speaking from the opposition Bench on the Compensation Act 2006, when the regulation of claims management was first brought in. Kevin Rousell has done a magnificent job with limited resources in running that unit. It was always agreed from this Bench by the then Minister, the noble Baroness, Lady Ashton, that the claims management unit within the Ministry of Justice would act as a sort of temporary regulator and eventually the Legal Services Board would take on the responsibility for proper regulation. I know that some of my noble friends have elsewhere urged that it should be the FCA that takes on responsibility, but I think we have to deal with proper and effective regulation of claims management companies.

The claims farmers allege that I have a vendetta against them—and I plead guilty, because I think that some of them are responsible for the most outrageous practices. The noble Lord, Lord Marks, referred to the element of fundamental dishonesty, to which I shall return in a moment. When we get these phone calls and text messages when we have not had an accident, let alone a whiplash injury, urging us to bring a claim and being assured that we can get money and that it will not cost us a penny, I really think that we have to take further measures to regulate the sector.

The Bill is significant and far-reaching, and I want to concentrate first on Clauses 17 and 18. Once again we had a gap in the law. As one of my colleagues pointed out, in effect this is legislation to fill an odd gap, whereby a carer could wilfully neglect or ill treat an incapable patient and be criminally prosecuted for it but commit the same act in relation to a capable patient and have no obvious route to criminal sanction. That was the gap. We are now moving in another direction, where we must be careful about the law of unintended consequences. This new offence—in particular, the addition of a provider level, which is in effect a corporate offence—is a significant addition, augmenting the Care Quality Commission’s regulatory breach channels of sanction and duplicating the Health and Safety Executive’s regulatory sanctions against corporate bodies and directors. So we have to think through how we make sure that we avoid doing exactly the opposite of what is intended.

I urge on my noble friend the Minister the need for clear advice to the sector and the police. In particular, how is it decided that the differences between these three offences, or perhaps even four offences in some cases, should be clearly laid down? How is it to be decided which cases go into which investigative process? A provider could face three or four investigative threats arising from a single event. How well formed is that necessary clarity? I agree with my noble friend that we have to do something; we cannot allow the situation to develop whereby people who are guilty of very serious acts are able to escape unpunished. Equally, we must heed those in the professional organisations who point out that there has to be a need for the Crown Prosecution Service to develop clear guidelines as to the circumstances in which prosecution will follow, to quote the BMA,

“to provide care workers with the assurances they need to encourage incident reporting”.

It is an area on which I hope we will focus when we go into Committee.

I move on to the other part of the Bill that appeared for the first time at the last moment in the other place. Clause 45 is called, “Personal injury claims: cases of fundamental dishonesty”. It is very difficult to disagree that when someone has been fundamentally dishonest they should not be punished in some way. As with claims farmers, we have seen far too much of this dishonesty, so to stop someone who has a valid claim from exaggerating any part of it, which is the deterrent effect of what is proposed, is an admirable intention. But what does it mean to be fundamentally dishonest? What is the difference between dishonesty and fundamental dishonesty? Is it a civil standard of proof? To impose a criminal standard of proof would make it extremely difficult to bring any defence on this basis.

We also have the situation, which I have known in my career as a practising solicitor, where quite often an overzealous claimant lawyer will include all sorts of areas of claim for which the claimant probably never had it in mind to sue and perhaps will link subsequent injuries to the original accident, when they were clearly due to something that happened afterwards and independently. How are we going to deal with a genuine injury that has nothing at all to do with the incident that has given rise to the claim?

I do not say for a moment that we are opening up Pandora’s box, because I strongly support the view that we have to eradicate dishonesty from civil claims. However, we have to proceed carefully and with caution, and there may be a need for clarification and further amendment.

I say this as someone who practises in this area: we do often see genuine claims. However, as many noble Lords pointed out in previous debates, we are seeing far too many exaggerated claims and claims that have no real fundamental basis for litigation. Therefore I particularly want for all those concerned in this area a clear message that dishonesty is not to be tolerated. If that message can be strong enough, we will have achieved something.

Finally, as far as the National Health Service is concerned, we are seeing very substantial claims for future care, some of which dwarf the rest of the claim and which are far bigger and more extensive than I ever experienced when dealing with matters like this, where I often found that the person who was injured was far better off in a hospital that dealt with similar cases—whether it was a broken neck from jumping into a swimming pool or something of that nature—and being alongside people with a similar injury, rather than being allowed to develop a whole hospital around their home.

We have to be mindful of the Chief Medical Officer’s report, Making Amends. It was a long time ago, but at the time we all welcomed it when he said that it was necessary to review again Section 2 of the Law Reform (Personal Injuries) Act 1948. I think that time is now upon us. I also urge my noble friend the Minister to consider, as he looks at personal injury claims of this nature generally, introducing some form of capping, so that much needed money, particularly in the National Health Service, is not diverted into dealing with very substantial claims for future care but is far better directed to the necessary rehabilitation that so many of us have supported for so long.