Criminal Justice and Courts Bill

Lord Lester of Herne Hill Excerpts

Tuesday 9th December 2014 Lords Chamber

[Baroness Farrington of Ribbleton (Lab)]

My Lords, I do not understand to which procedure the noble Lord referred. I can see no example of the negative or the affirmative procedure. In any case, in your Lordships’ House we either accept everything or vote it down completely; that is not amendable.

I approach this as a parent and a grandparent and as somebody who has been on a police authority, a social services committee and an education committee. I have visited secure establishments. Let me reassure noble Lords who believe that those of us who are expressing concern are not concerned about reoffending. I am concerned about reoffending for the sake of other young people as well of as the young people themselves. I am deeply committed to extending anything that will help young people not reoffend. However, I ask noble Lords to imagine that they are members of a local authority considering this proposal. Placed on you by law would be a duty of care to the young people concerned. Negligence could well end up with proceedings being taken against you.

We owe it to those young people to ask about this. I accept that the argument about secure colleges is lost, except for these two groups. I remain deeply uneasy. I cannot possibly do anything other than accept the noble Lord’s Motion and sleep easy believing that we have fulfilled our duty of care.

I again ask the Minister, for whom I have respect: why on earth will we not be allowed to debate and offer detailed observations before any decision is taken? That is a simple proposition. If the Government are proved right, your Lordships’ House will listen and be fair, but we are not being offered that. I ask every noble Lord to say to the Government: at least convince me before you ask me to reject the Motion of the noble Lord, Lord Ramsbotham.

[Lord Lester of Herne Hill (LD)]

My Lords, I wonder whether my noble friend the Minister could add two further questions to the three asked by my noble friend Lord Carlile, which will help me in deciding exactly what to do. First, will he confirm to the House that neither the affirmative procedure nor the negative procedure is to be applied before the scheme is brought in? As it stands, the scheme can be brought in by the Minister without either. If that is right, will he then explain why the Government decided in the other place that they would ensure that the affirmative procedure would be used to the extent that the Government wanted to authorise the use of force, but not otherwise? Why is the affirmative procedure being used in that case but not in this?

My other question is this. I have looked in vain at the debate in the other place to see whether they had the opportunity to consider the extremely powerful points made by the noble Lord, Lord Ramsbotham, with an answer by the Minister. I cannot find anywhere in Mr Andrew Selous’s speeches on 1 December even the beginning of a reply to the noble Lord’s points. I ask that question because, before taking the solemn step of sending the matter back to the other place, it is important to know what happened. If I had seen a rebuttal of the points of the noble Lord, Lord Ramsbotham, that would affect the way in which I will behave, but I ask my noble friend the Minister whether I am right in saying that the noble Lord’s points simply went unanswered.

[Baroness Benjamin (LD)]

My Lords, I would briefly like to speak on Motion A1, which would ensure that girls and younger children are kept out of secure colleges as we know them. We know them to be tough, intimidating and challenging places. The children’s charity, the NSPCC, believes it would be unsafe, inappropriate and potentially damaging to hold girls and under-15s in such institutions, especially as they would be with many older boys. The main reason for this is that many of the girls in custody are highly likely to have experienced sexual abuse. Placing them in custodial institutions may be traumatising and damaging to their rehabilitation. Placing girls and young children in secure colleges will cause serious and unprecedented safeguarding risks that should be considered.

Every child deserves to have the best education on offer, to help them prepare for the future and to help them cope with life. But to reach their full potential, children need to feel safe and not intimidated or bullied. We know that these environments will be made up of the most troubled children in the country. There is a need to give these vulnerable children the confidence to reach their potential, to help them engage with their education and to give them stability and consistency. The evaluation report by Ofsted does nothing to address these serious safeguarding concerns. I ask my noble friend the Minister: how will these concerns be addressed? What type of facilities will be put in place to give children and young people the stability, safeguards and requirements that are needed to deal with their mental and physical health and well-being? I look forward with great anticipation to my noble friend’s response, and hope he gives full consideration to our concerns today. I will accept nothing less than a compromise.

--- Later in debate ---

[Lord Lester of Herne Hill]

Mr Geoffrey Cox, a Conservative Member of Parliament, asked the Secretary of State for Justice what he meant by “a minor technicality”, and he replied by giving examples of a failure of proper consultation. In my experience, a failure of proper consultation can be a very serious matter. I want to give just two examples of cases that I was involved in—one I won and the other I lost. One was about closing Barts Hospital. A judicial review challenge was brought on the basis that the Minister had not properly consulted before deciding to close the hospital. The judge exercised discretion in any event, and we lost. However, it was a very important exercise because it involved the court in calling to account what the Minister had done to see whether it was an abuse of power; it was not.

In the other case, involving a Labour Government, the consultation was about the Export Credit Guarantee Corporation and whether the new rules on anti-corruption had been properly consulted on. It turned out that the only people who had been consulted were large corporations. A small NGO, the Corner House, brought a challenge based on the fact that it was not a proper consultation, and it succeeded. As a result, the Minister had to do a further, proper consultation and to beef up the anti-corruption rules. I give those two examples to show that the Secretary of State for Justice simply does not appreciate how important a breach of procedural good government can be in a particular public interest case.

I want to say two other things. One is that the Joint Committee on Human Rights, on which I serve, has repeatedly pointed out that the Government have produced no evidence, as distinct from ideology, to justify the changes that are being contemplated and are now the subject of ping-pong, and they still have produced no evidence. The Constitution Committee, on which I also have the privilege of serving—not a left-wing, radical, subversive organisation—led by its chair, the noble Lord, Lord Lang, on 4 July asked the House to reflect on the wisdom of the Government pressing ahead with the reform to judicial process despite the warnings of the judiciary. In spite of the Constitution Committee ringing the alarm bell and repeating the warnings—I will not bore the House with the details—the Government went ahead. As far as I can see, neither of these reports was even referred to by Mr Grayling in the debates in the other place.

It is very important, if we have expert committees that are advising both Houses, that at the very least Ministers do them the courtesy of replying to them in the debate, and they have not done so. I cannot match the eloquence of the noble Lord, Lord Deben, or the eloquence and wisdom of my noble kinsman, the noble and learned Lord, Lord Woolf, in what they have said, but I very much hope that we will rise above party politics this evening.

[Baroness Lister of Burtersett (Lab)]

My Lords, like the noble Lord, Lord Deben, and the noble Baroness, Lady Campbell of Surbiton, I speak as a member of what was last week dubbed the sisterhood and brotherhood of non-lawyers. It is very important that non-lawyers speak in support of lawyers on these issues because, as the noble Baroness, Lady Hamwee, said at Second Reading of the Bill, “These are citizens’ issues”. We are talking about the most marginalised, powerless and voiceless citizens whose concerns are at stake.

I speak also as a member of the Joint Committee on Human Rights. We opposed the original clause on grounds of both principle and practice, including the argument put so powerfully by the noble Lord, Lord Deben, that we should not condone unlawful decision-making. This is of particular importance to the enforcement of the public sector equality duty, a point which has been made to us by the Equality and Human Rights Commission. I declare an interest as the honorary president and a former employee of the Child Poverty Action Group, which, as Sir Stephen Sedley has pointed out, was a pioneer in the use of judicial review to further the interests of children in poverty and their parents and played an important role in elucidating the law on social security to the benefit of everyone involved.

I will recount briefly a recent case that is relevant also to Motion D, in which the CPAG acted as an intervener. It was a judicial review against a decision to cut the funding for local welfare assistance schemes—which replaced the discretionary social fund—which we know, from a growing body of evidence, is causing real hardship. The decision has taken place without consultation and without first carrying out the review that had been promised to Parliament during the passage of the Welfare Reform Act 2012. As it happened, the Government settled the case—they clearly did not think that they would win it—and have now consulted. The CPAG’s solicitor said to me that if the Government’s version of the Bill becomes law, this intervention probably would not have been possible,

“because of the uncertainty around whether our charity would end up liable to pay costs. As a result, the Courts would have been ignorant of the broader issues at stake”.

Indeed, the case may not even have got permission because the Government might have argued that, even if they had consulted, their decision would have been highly likely to be the same. I hope that that does not prove to be the case. We do not yet know what the decision will be. However, in answer to a Written Question just the other day, I was told that they have had over 5,000 responses to that consultation. That is not a mere technicality; that is about listening to what local authorities and other citizens of this country think about this issue.

To echo the very powerful speech of the noble Lord, Lord Deben, at issue here are the accountability of the Government, the rule of law and access to justice—the very kind of principles that your Lordships’ House has traditionally upheld. I hope very much that your Lordships will uphold them again today.