Criminal Justice and Courts Bill

Lord Beecham Excerpts

Wednesday 21st January 2015 Lords Chamber

[Lord Beecham (Lab)]

My Lords, as we have already heard this afternoon, widespread concern over the proposal to include under-15s—I think the Minister inadvertently referred to under-14s in his opening—and girls in secure colleges has been voiced repeatedly in debates in this House during the Bill’s troubled passage through the legislative process. I will not rehearse the arguments again, save in one important respect. The numbers involved are small, which, as indicated by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howarth, implies that of necessity the group will contain members coming from even greater distances than the majority of young people who will be housed at Glen Parva—which, it will be recalled, will contain about one-third of the national number of children in detention and will already therefore, on present plans, cover a large geographical area. Thus girls and under-15s—the most vulnerable groups—will be even further from the homes and communities to which they will return.

As we have heard, the Government have at last conceded—no doubt thanks to the eloquent advocacy of the Minister, who does listen carefully to debates in your Lordships’ House—that a final decision will be taken on the basis of the affirmative resolution procedure. So far as it goes, that is of course welcome, although we have to recognise that it does not go very far, since such resolutions cannot be amended. Will the Minister at least accept that there should be separate resolutions for each of the two categories—girls in general and those under the age of 15? That would possibly allow separate decisions to be made in the light of evidence at that time, if it was thought to be necessary, rather than treating both in exactly the same way.

The parliamentary procedure that has now been laid down, after the concession for which we are grateful, will follow consultations. I asked a number of questions about the nature of the intended consultations in the debate of 9 December, to which the Minister in his reply—in fairness, he was replying to many things—made no reference. Therefore, I am constrained to repeat some of those questions.

--- Later in debate ---

[Lord Woolf]

I also share the hope expressed by the noble Lord, Lord Horam, that what has been achieved will be worth while. However, I am bound to say that my view originally was that these proposals to restrict the court’s powers in relation to judicial review were unnecessary and misplaced. On the points made by the noble Lord, Lord Horam, I should point out that these amendments would not have assisted in any way whatever. What has assisted is the fact that the courts, aware that there are problems in some areas of judicial review, and of their own motion, put in place a specialist way of dealing with the questions of development to which the noble Lord referred. That is quite independent of these amendments. None the less, the changes that have been achieved to the original proposals enable me, like the noble Lord, Lord Pannick, to accept that this can be accepted, although with reluctance.

[Lord Beecham]

My Lords, it is a pleasure to follow the noble Lord, Lord Pannick, in his customary forensic and formidable critique of the decisions made, and the manner in which they are made, by the Lord Chancellor. As we have heard, the House has secured an amendment to the “highly likely” test. The courts will be able to allow a case to be brought or to grant relief where they deem there is an exceptional public interest, notwithstanding that it would be highly likely that the defect in procedure would not have affected the outcome.

It is, however, somewhat unclear what is meant by “exceptional public interest”. The Richard III case attracted more public interest than any judicial review case that I can recall, and certainly more interest from the Lord Chancellor, who constantly relies on that one case to justify his assault on judicial review. Would such exceptional interest have allowed the court to deal with that case if it had been demonstrated that it would have failed the “highly likely” test? If not, will the Minister give us some examples, given that the courts are now directed that they must strike down a claim unless such exceptional public interest exists? Further, if judicial discretion remains, it would surely have been better not to substitute “must” for “may” in the injunction to apply the test contained in the amendment.

The final government amendment deals with financial information to be supplied by those contributing to the funding of judicial review applications; and again under pressure from this House, and again, no doubt, with the advice of the Minister, the Government have moved, in this case to promising a consultation on the limits beyond which disclosure would be required. That is, of course, welcome, although it is not clear whether Parliament will have an opportunity to debate the outcome of such a consultation before the rule committee makes its decisions. Perhaps the Minister will give me an indication about that.

I have always acknowledged the need to get behind the facade which can be erected via a shell company or other device, such as was used in the Richard III case, partisan supporter of that much maligned monarch though I am, but it is a pity that the Government have not sought to consult on how to do that, rather than come forward with what originally certainly looked like a device which could have a chilling effect on genuine supporters of a claim for review. Nevertheless the change embodied in the amendment, as far as it goes, is welcome.

It has been striking, as this Bill has gone through both Houses, how little support it has attracted from government Back-Benchers in either Chamber, with the notable exception of the noble Lord, Lord Horam. In the last round of ping-pong in the Commons three Conservative lawyers—Geoffrey Cox QC; the former and widely lamented Attorney-General, Dominic Grieve, and the former Solicitor-General, Sir Edward Garnier—all voiced stringent criticisms. We are, however, where we are, and thanks to deliberations in this House, and, I suspect, to the wise counsels of the Minister, it is a better place than we might have been. I only hope that after the general election we will have, whoever forms the next Government, a Lord Chancellor and Secretary of State for Justice who, if not judicial, will at least be judicious.

[Lord Faulks]

My Lords, I am grateful to all noble Lords for their contributions to this debate. I am grateful to the noble Lord, Lord Pannick, for his observations about the rule of law and its importance. I find no difficulty in agreeing with his critique of the rule of law, its role and its importance, and judicial review as a part of that.

There is perhaps one area where I would not wholly agree with him, and that is in his submission in relation to “exceptional”. I say submission because, as he will appreciate, those looking for clarification on what “exceptional public interest” may mean, pursuant to the rule in Pepper v Hart, might be interested in what was said in debates. They might have their attention drawn by the noble Lord, Lord Pannick, or indeed by some other counsel, to what he himself said in the course of the debate. I do not think that that is quite within Pepper v Hart. He referred, for example, to what the noble and learned Lord, Lord Woolf, said in one particular case. I think that different judges have used the word exceptional to mean different things in different contexts. I see the noble and learned Lord nodding. I simply say that “exceptional public interest” will depend on its context, and we are content to leave it to the judges to decide what it means. The noble Lord, Lord Beecham, did his best to tempt me into giving examples—even trailing the Richard III case, which he said was a classic case in which the public were interested. The public can be exceptionally interested in something without it being a matter of exceptional public interest. I trust that judges will be able to make that distinction.

As for the rule committee, it is, as noble Lords will know, separate from the Lord Chancellor, who has been much maligned in the course of this debate. It will decide what is appropriate on the basis, I hope, of a wide consultation on the issues. No doubt it will bear in mind, among other things, observations that have been made during the course of this debate. I am grateful for all the contributions to the many debates that we have had.

[Lord Beecham]

Will the Minister indicate whether there will be an opportunity for this House, and indeed the other place, to debate the outcome of the consultation before the rule committee makes its mind up?

[Lord Faulks]

No, I will not give that undertaking. The rule committee will have the basis for consultation and the basis of the debate and it will be subject to the usual parliamentary procedure, meaning that each House will have the option to vote against—so to that extent. That is perhaps an answer.

The debate has been of a very high quality. Indeed, I pay tribute, as other noble Lords have, to the scrutiny that the Bill generally—not just the matters that we are dealing with today—has received from every quarter of the House. There have been different fields of expertise brought to good effect in the course of the consideration of the Bill by your Lordships’ House. There have been a considerable number of amendments to the Bill in many different areas. Today, and in the course of the most recent debates, we have focused on the modification of the reforms of judicial review and in relation to parliamentary oversight of under-15s and girls in secure colleges—and, indeed, on the secure college rules, which will now be subject to an affirmative resolution. However, there have been other important amendments, such as the new offence of revenge pornography; the custody arrangement for 17 year-olds; various provisions to clamp down on dishonest personal injury claims; and extending reporting restrictions to young people, to name but a few.