Criminal Justice and Courts Bill

Lord Faulks Excerpts

Wednesday 21st January 2015 Lords Chamber

Moved by

[Lord Faulks]

That this House do not insist on its Amendment 74 and do agree with the Commons in their Amendment 74C.

74C: Clause 29, page 72, line 18, at end insert—
“(6) Subsection (7) applies to an order under this section the effect of which is to bring into force the Secretary of State’s power to provide secure colleges for the detention of any or all of the following—
(a) persons who are male and aged under 15;(b) persons who are female. (7) A statutory instrument containing the order may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(8) The reference in subsection (6) to the Secretary of State’s power to provide secure colleges is to the power under section 43(1)(c) of the Prison Act 1952 (as inserted by section 29 of this Act).”

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, in speaking to this Motion, for the benefit of the House I should say that, with the agreement of Her Majesty’s Opposition, it is proposed that Motions B and C be put together and be debated together.

As to Motion A, we have spent a considerable amount of time debating the Government’s plans for secure colleges and our ambition to improve the education and reoffending outcomes of young people in custody. I am pleased that, since the last time we met to debate these provisions, which deal with who should be accommodated in secure colleges, the House of Commons has accepted a government amendment to the Bill to give Parliament a vote on the matter. I therefore beg to move that this House does not insist on its Amendment 74 and agrees with the Commons in its Amendment 74C, and I hope that noble Lords will welcome the Government’s response.

Before I go into the detail of the amendment, I take this opportunity to thank noble Lords for the quality of their scrutiny during the passage of the Bill. There have been many hours of informed and passionate debate on the important and sensitive issue of how young offenders are detained and the support that they receive to become rehabilitated. As well as those who featured prominently in our debates, there were other noble Lords who brought their expertise to bear on the issues, whether in meetings, of which there were a number, or in correspondence, and I acknowledge their contributions also. The co-operation that we have encountered has led us to find a compromise, which I am hopeful and even—dare I say?—confident will satisfy noble Lords.

As the Secretary of State and my other ministerial colleagues have made clear throughout the passage of the Bill, we do not want to prevent girls and under-15s in future being able to benefit from the pioneering approach and enhanced provision that secure colleges will offer. We recognise that these groups are more vulnerable and require tailored support, but as noble Lords will know, girls and younger boys are already safely accommodated together on the same site as older boys in both secure training centres and secure children’s homes, demonstrating that such an approach can work well. Our plans for the pathfinder secure college to open in 2017 have been carefully developed, in consultation with a number of noble Lords, to provide separate and tailored facilities for younger and more vulnerable children, should they be placed there. Of course, their placement will always be as a result of the intervention of the Youth Justice Board.

We recognise, however, that there remains concern about the accommodation of girls and under-14s in secure colleges. While I am confident that secure colleges will be able to meet the needs of these vulnerable groups and achieve improved outcomes for them, I appreciate that noble Lords are, and were, seeking further safeguards and a clearer role for Parliament. When this House last considered amendments made to the Bill in the other place, I made a commitment that, before girls or under-15s were introduced to the first secure college, the Government would lay a report before Parliament setting out the arrangements for accommodating, safeguarding and rehabilitating these groups. Today, I am able to go further and am seeking to amend the Bill to make the commencement of the power to provide secure colleges for the detention of girls and under-15s subject to a resolution of both Houses of Parliament. This will give Parliament a clear role in approving the use of secure colleges to detain these groups and will enable that decision to be informed by learning on how secure colleges are operating. The Government will, of course, fulfil the earlier commitment that I made to produce a report, and this will be laid before Parliament ahead of the debates on the commencement of the power in order to provide further detail on the plans and to inform the debate in both Houses.

I hope noble Lords will feel that their concerns have been recognised by the Government and that our response goes some way towards allaying those concerns. I believe that the amendment before the House represents a practical and common-sense solution that provides Parliament with the safeguards it is seeking, while ensuring that the opportunity remains for girls and under-15s to benefit in future from the enhanced provision that secure colleges will deliver. I therefore ask the House to accept this amendment in lieu of its previous amendment.

[Lord Ramsbotham (CB)]

My Lords, I am content to agree with Commons Amendment 74C and am most grateful to the Minister not only for the way in which he has presented the Government’s change of heart but for his courtesy in giving me and a number of other noble Lords advance warning, by letter and also in discussion, of what it would contain. I say again how much I, and I am sure many other noble Lords, have appreciated the courtesy and admired the skilled advocacy that he has deployed throughout the passage of this Bill. I do not include the Minister in any criticisms that I make of the secure college proposal, on which he and I may not agree, but which I will continue to oppose as strongly as I am able for as long as it takes. As I have said before, I regard the very idea of building the biggest children’s prison in the western world as a stain on our treasured national reputation for fairness, decency and humanity under the rule of law.

I appreciate that the Minister is under the strict riding instructions from a Lord Chancellor whose jurisprudential credibility has been forensically unpicked by my noble friend Lord Pannick and a Secretary of State for Justice who has wreaked havoc on the ability of the prison and probation services to protect the public. With that track record, noble Lords will appreciate why I pray that that same person never gets his way with his pet plan for the detention of vulnerable and damaged children.

At each stage of the Bill, I have drawn attention to some new development or piece of evidence that adds to the strength of the case against the secure college proposal, and today is no exception. First, last week came the welcome announcement that, thanks mainly to the determined efforts of the Youth Justice Board, there are now fewer than 1,000 children in detention. Does it really make sense to hold one-third of them in one place and plan a repeat with yet more?

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Having said that, I repeat that the Minister deserves the thanks of the House and, more importantly, of those who are engaged in looking after young people, for the concession that has been made, and I hope that, in operation, it will allow due consideration of any difficulties that may be perceived by those with whom consultations will take place before any statutory instrument is laid.

[Lord Faulks]

My Lords, I am grateful to all noble Lords for their contribution to this short debate, echoing to a considerable degree the concerns that were reflected in previous debates. I do not seek to diminish their value, but I hope that I will be forgiven for not replying in full detail to all the points made, for example, by the noble Lord, Lord Ramsbotham. His concern and opposition to the Bill has been thoroughly exposed and well articulated. He knows that the Government do not accept his criticisms but of course respect his expertise in this matter.

I am grateful for the acknowledgment that the Government have listened to the concerns expressed both in and outside the House. Although it has not been made explicit today, in previous debates there has been an acknowledgment that the Government’s proposed reforms, however much some noble Lords think that they are misconceived, stem at least in part—we would say centrally—from our aspirations for educating and rehabilitating young people in custody. With 68% of young people who leave custody going on to reoffend within one year, doing nothing is simply not an option. The secure colleges reflect the Government’s vision for transforming youth custody.

Concerns have been expressed today, as in previous debates, about the geographical issue: effectively, that young people may find themselves a long way from home, which may be contrary to their interests. Noble Lords will aware that the YJB operates an assisted visits scheme in the existing youth custody estate which contributes towards travel and subsistence costs for families and carers visiting a young person in custody. The scheme also covers childcare and modest accommodation costs where required. The noble Baroness, Lady Howarth, conceded that not all families want to remain in very close contact with the young people, but, where they do, this has enabled and should continue to enable there to be contact.

We also anticipate that the operators of secure colleges will utilise a range of technological solutions that will allow young people to contact their families more easily. These will be supplementary to, not in place of, the proposed entitlement of one visit per week. We expect providers to forward innovative solutions that address the individual needs of young people in secure colleges, including a visits scheme that enables young people to remain in close contact with their families or carers. In designing the secure college pathfinder, we have considered how we could facilitate visits for young people, and the site has numerous flexible areas where the operator could choose to accommodate visits. Details of the visits scheme, including a booking system and any incentives, will be developed with the secure college operator in due course.

The noble Lord, Lord Beecham, repeated questions that he had asked previously about who would be consulted. The position is that I am not from the Dispatch Box going to commit a future Secretary of State to consult any specific body, but the noble Lord has given the House and any future Secretary of State a useful list of those who might be consulted. I can see that any Government coming before the House seeking approval, through affirmative resolution, would be well advised to consult widely and to provide evidence of that consultation to Parliament.

Apart from the report which I have undertaken on behalf of the Government to provide to Parliament, there will be a report from Ofsted and the Inspectorate of Prisons. However, I bear in mind the advice that the noble Lord has effectively given to any Secretary of State that a number of people could usefully contribute to the consultation—and, no doubt, those who have different views from a putative Government will seek consultation and advice from those bodies and bring before the House their views.

The Government are not guilty of unseemly haste. They have been enthusiastic about continuing to press forward with secure colleges and intend to begin the process of building before the general election. The question that I think lay underneath the questions asked by the noble Lord, Lord Beecham, was whether this was a sensible way to proceed given that a Government not of the current complexion might conceivably not proceed to build secure colleges—indeed, it was said in the House of Commons that the Labour Party, if it was in power, would not do so. The question is what would happen.

Ministry of Justice officials are committed to providing value for money for the taxpayer, which includes ensuring appropriate termination rights in contracts, and the costs attached to terminating a contract, should that happen, would vary depending on when the contract was signed and how far the construction had progressed. The standard termination provision for these types of industry-standard contracts will be included within the commencement agreement. These provisions will represent a reasonable and balanced position for the Ministry of Justice in relation to such contracts and will meet the standards set out in Managing Public Money. The Treasury is considering the pathfinders business case, and this is very much in line with the Government’s process and project timelines. A decision will be made shortly.

The noble Lord, Lord Beecham, also asked whether the Government would bring forward separate statutory instruments in relation to under-15s—not under-14s; I am sorry that I inadvertently referred to under-14s—or to girls. I anticipated that there might be some questions in that regard. The position is that it is probably unlikely that any Government would decide to bring forward such a proposal at the same time—in which case, there would be two separate statutory instruments. However, if it is was prudent and wise to consider whether there was a proper case for addressing under-15s and girls at the same time, on that assumption I do not think that we would bring in separate statutory instruments because it would be perfectly open for Parliament to view them as a whole. That said, I will bear in mind what the noble Lord said and, while not giving any commitment to that effect, I can see that there could conceivably be different arguments that pertain to those different groups. So I respond in that way—I hope positively, but not giving any commitment on behalf of the Government.

I hope that that is a sufficient response to the debate, and that the noble Lord, Lord Ramsbotham, will forgive me if I do not go into the merits of the scheme as a whole, having regard to the responses I have given to various debates in the House and the various meetings that we had with him and other concerned Peers. In those circumstances, I ask noble Lords to join me in accepting the government amendment in lieu of their previous Amendment 74.

Motion agreed.

Moved by

[Lord Faulks]

That this House do not insist on its Amendment 102B and do agree with the Commons in their Amendments 102C to 102M.

102C: Clause 64, page 65, line 3, at end insert—
“(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.””

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102M: Clause 64, page 65, line 46, at end insert—
“(6B) If the tribunal makes an award in reliance on section 31(2B) of the Senior Courts Act 1981 as applied by subsection (6A), the tribunal must certify that the condition in section 31(2B) as so applied is satisfied.””

[Lord Faulks]

My Lords, as I indicated, Motion B and Motion C will be debated together for the convenience of the House.

These clauses have been the centre of much highly intelligent debate in this House. I am grateful for the scrutiny and valuable insight that noble Lords have given to the Bill, though I firmly hope that today will mark the end of that process for this particular Bill. Our amendments draw on those debates and the many other discussions that have taken place in less formal settings. The general arguments around these clauses are well rehearsed, and I do not intend to detain your Lordships unnecessarily by going over old ground. Instead, I will focus on the Government’s specific amendments, turning first to Clause 64.

Our ambition for this clause is relatively modest: it is simply to limit the time and resources spent on judicial reviews brought on grounds highly unlikely to make a substantial difference to the outcome for the applicant. However, we accept that there have been and are concerns that, exceptionally, even these types of case could engage crucial issues which should be heard by the courts. That is why we have tabled an amendment that permits the court to grant permission or a remedy where it considers that reasons of exceptional public interest mean that that is appropriate.

I accept that “exceptional public interest” is an unusual formulation, and I will limit myself to two observations on this that, I trust, will give noble Lords the comfort they might require as to how it will operate. First, a high degree of public interest specific to the case is required for the exception to be met. We think that that is a fair compromise in the light of my second observation: we have purposely not defined the term “exceptional public interest”, meaning that the judiciary will apply the term in practice to the facts at hand. For fear of appearing to seek to fetter that discretion, I will forbear from setting out further detail on how the Government would wish to see the term applied in future.

I simply add this: in one regard it could be said that it is always in the public interest for a government body, local authority or anybody amenable to judicial review to follow to the letter the law. One can see the force of that argument.

However, that, in a sense, is what public law is all about. It could also be said that simply saying that something is in the public interest is almost tautologous, when we are dealing with a public law remedy. Hence the requirement that there must be “exceptional public interest”—although, as I have said, we think that is a matter for the judges to decide. It will also be for the judges to decide first whether, on the facts of the case, the “highly likely” threshold has been met, and secondly, in appropriate cases, whether there are reasons of “exceptional public interest” which none the less make it appropriate to grant permission or a remedy.

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[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.