Criminal Justice and Courts Bill

Lord Kennedy of Southwark Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, on looking at the Bill for the first time, I think that many Members of your Lordships’ House will have been struck by the wide variety of issues it seeks to cover, not all of which seem to hang together very well. As my noble friend Lord Bach said, it is a bit of a Christmas tree Bill, on which many baubles have been hung, all of different shapes and sizes—and more and more keep getting hung on it. Generally, the Bill appears to the Opposition to be a rushed piece of legislation, and rushed legislation usually means bad legislation. It will require considerable improvement in your Lordships’ House.

I am in complete agreement with the contributions made by a number of noble Lords in today’s debate, including particularly those of my noble friends Lord Beecham, Lady Thornton and Lord Ponsonby and others. There are elements of the Bill we support, parts of it we think need improvement and parts of it we oppose. We support attempts properly to punish offenders. We also support keeping the public safe from the most serious and violent offenders and the provision of open and transparent justice. However, we do not support the watering down of the important constitutional tool of judicial review or the Government’s plans for a secure college.

The first part of the Bill concerning criminal justice matters has provisions we are content to support to keep the public safe. The scheme for extended determinate sentences for additional terrorist offences is such a provision. However, we have concerns about these additions and the changes to the release arrangements for people convicted of serious sexual and violent offences that are highlighted in the Government’s own impact assessment, which states that the sentencing changes will require 1,050 additional prison places, and will increase the workload of the Parole Board with an additional 1,100 hearings per year. Our worry is that the Government are not putting the measures in place to deliver the changes they want to see. These matters will require debate and probing during the Committee stage of the Bill to satisfy your Lordships’ House that the Government have their sums and thinking right.

The Joint Committee on Human Rights made some key observations when looking at the provisions regarding the release and recall of prisoners in Clauses 6 to 13. The committee was right to be unconvinced that the introduction of powers by the negative resolution procedure to enable offenders to be electronically tracked was adequate, and to recommend that the Bill should be amended to make the code subject to some form of parliamentary procedure to ensure that Parliament has the opportunity to scrutinise the adequacy of the relevant safeguards.

Clause 14 regarding the mandatory drug testing of prisoners and the creation of a power for the Secretary of State to specify in secondary legislation drugs that are not controlled under the Misuse of Drugs Act 1971, for which prisoners can be tested, is a sensible move and should help to deal with drug misuse in prisons.

Clauses 15 and 16 make changes in respect of the use of cautions and stop their use for all indictable-only offences and certain specified either-way offences. Will the noble Lord, Lord Faulks, tell the House in his response why the Government think that the negative resolution procedure is acceptable in respect of the specification of the either-way offences, as I am more of the view that this should be done by the affirmative resolution procedure to give Parliament the opportunity to scrutinise further what is being proposed?

I think that we have all been horrified at reports of the ill treatment, abuse and wilful neglect of vulnerable people who have been entrusted to the care of others. With the provisions listed in Clauses 17 to 22, the Government seek to close the loophole that Professor Don Berwick identified in his review of the events that took place at the Mid Staffordshire NHS Foundation Trust, but they were added late during the passage of the Bill through the Commons and will require considerable probing and testing. I find it odd that these proposals do not extend to volunteers. This, I believe, is a serious omission. You have only to look at the activities and offences committed by Jimmy Savile, while he was acting as a volunteer at a number of NHS and other establishments, to be concerned that these proposals are in themselves inadequate and do not go far enough. I hope that your Lordships will amend the Bill accordingly so that what is agreed will give the maximum protection to vulnerable people in the care of others, be they employees or volunteers.

The murder of a police or prison officer is one of the gravest offences that can be committed and the whole-life tariff in Clause 24 sends a powerful message of how much we value these public servants and place the highest value on their safety. The noble Lord, Lord Blair, made a powerful point when he talked about the role of the courts in handing down sentences for the murder of police or prison officers, and said that Harry Roberts is serving the 48th year of his prison term for murdering police officers.

I am sure that we will return to the issue of possessing a bladed weapon in public or on school premises. We supported the amendment in the Commons, with Back-Bench Conservative MPs, and we will support it in this House as well. It sends out a strong signal that carrying a bladed weapon is serious and has serious consequences if you are caught for a second offence. The noble Lord, Lord Marks of Henley-on-Thames, was right when he expressed concern about the reduction of judicial discretion, but I would point out that the proposals we supported for possessing bladed weapons in public places or school premises do have judicial discretion—unlike the proposals that the Liberal Democrats supported in the LASPO Act for the carrying of a knife, which are mandatory.

The proposals for dealing with offences committed by disqualified drivers are well intentioned, but their adoption, as they stand, would be quite confusing. The law at present is inadequate and needs improving. Perhaps the noble Lord, Lord Faulks, can explain how these proposals will fit in with a review of the road traffic sentencing framework that the Government are committed to carrying out in the next few months, because if there is a review, there could possibly be changes. Will those changes require primary or secondary legislation?

The clause in the Bill concerning malicious communications has the support of the Opposition. As technology becomes ever more sophisticated and can be used to threaten people with offensive and distressing material, we agree that the courts should have tough powers at their disposal to deal with offenders. My noble friend Lady Thornton made a powerful argument about what needs to happen in the case of extreme pornography and the proposals from the Government need amendment and revision. I hope that the meeting between my noble friend and the Minister will go some way in that respect.

My noble friends Lord Beecham and Lord Ponsonby, and the noble Lord, Lord Ramsbotham, highlighted our concerns about the proposals on secure colleges. These proposals in particular need proper pre-legislative scrutiny. The Minister is right to say that we need to be better at rehabilitating young people, but I am not convinced by what I have heard from him so far today. We on these Benches are not convinced that housing 300 children together on one site—potentially miles away from their family, making visiting difficult and expensive—is a good way to provide a proper education and reduce their propensity to reoffend.

We share the concerns expressed by a number of organisations, including the Howard League for Penal Reform and others. The Government will have to provide much more information and set out their proposals more clearly. Issues such as the use of restraint, concerns about the effects on younger children and the problems that girls will confront in this establishment in particular will need thorough examination. I agreed with all the comments of the noble Baroness, Lady Linklater of Butterstone, about secure colleges, and those of the noble Lord, Lord Carlile.

Moving on, while the section of the Bill on courts and tribunals can be seen as administrative and time-saving measures, we on these Benches have some concerns about the single-magistrate hearings and weakening the principle of justice being seen to be done, and how the system will operate. I look forward to discussing in Committee these further proposals and the ideas from the Magistrates Association that my noble friend Lord Ponsonby referred to. No matter how well intentioned, we have to ensure that we get these right. I am also worried about the proposal for trying to get money out of penniless defendants. As my noble friend Lord Ponsonby said, I have sat as a magistrate for many years. I used to sit on the Coventry Bench when I lived in the city and I can tell your Lordships that imposing fines and court costs that individuals have no hope of ever paying off is a complete waste of time and could actually be damaging.

I am fully in support of people convicted of offences having to pay compensation to victims, fines and court costs, but it must be left to the discretion of the courts to decide what is reasonable and what is not. We have no objection in principle to leapfrog appeals, though it does always follow that every issue of national importance will go straight to the Supreme Court and it may be that in some cases, that will not be the best thing to do. I always thought that the case brought by Lewisham Council and others—and I declare that I am a member of Lewisham Council—about the decision of the NHS to close the A&E at Lewisham Hospital, would end up in the Supreme Court. In the end, having lost in the High Court and the Court of Appeal, the Government decided to draw a line there and instead changed the law to stop other organisations doing what Lewisham Council did.

We generally welcome the proposals to update the jury room process. However, we want to press the Government on what support they intend to give juries, so they can clearly understand their role and what they can and cannot do. Social media have a vast penetration and that will only increase. People can be active on a number of platforms numerous times a day. They may have no idea that they are doing something wrong and that could be a very serious offence.

I have been on a jury only once, and that was about 30 years ago. I do not recall being told very much at all, but there were no mobile phones, e-mail or internet. The noble Lord, Lord Faulks, and many other noble Lords will be much more aware than I am of what is said to juries today. I would hope at a minimum that they can be given clear “dos and don’ts” in writing and a proper briefing from a court official before they enter the courtroom—followed up, if necessary, by the judge at the start of the trial telling them what is and what is not appropriate. We have no objection to raising the age for jury service to 75, and in fact this could be a very positive move. The only thing that I would say is that some account may need to be taken of health issues.

The section that deals with judicial review contains some of the most controversial parts of the Bill and we have serious concerns about these proposals. My noble friend Lord Beecham, the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Woolf, all skilfully highlighted the concerns of many noble Lords in this House. For the Justice Secretary to describe judicial review as a promotional tool for countless left-wing campaigns is a disgrace. The noble Lord, Lord Pannick, repeated the full quote. I accept fully that for the Government, local authorities or other public bodies it can be irritating to have their decisions challenged—but without such provisions, bad decisions can go unchallenged, and that is bad for all of us, for democracy and for civil society.

The noble Baroness, Lady Campbell of Surbiton, made key points when she talked about the use of judicial review, as did my noble friend Lord Bach. It is about holding people to account, and without a written constitution, judicial review is the one important tool for holding the Executive to account. Over the past four years, we have seen cuts to legal aid, limitations on no-win no-fee cases, and threats to the Human Rights Act and the European convention. The proposals here are another attack on the rights of the citizen.

The noble Lords, Lord Faulks and Lord Hunt of Wirral, both referred to the activities of some claims management companies. I have spoken many times in this House about the industry and the problems it can sometimes cause. I am happy to pay tribute also to Kevin Rousell and his claims management team, which does a fantastic job. I should be delighted to put my name to some more amendments that can give him and his team even more power to deal with the problems of this industry.

As I said at the outset, this is a rushed and bad Bill, and we on these Benches will seek to work with others across the House to try to persuade and, if necessary, defeat the Government in the Division Lobbies if they will not listen to reasonable argument. I will draw my remarks to a close and I am sure that we will return to these matters in Committee.