Criminal Justice and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Tuesday 9th December 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I am a patron of a secure unit in Exeter, the Atkinson unit, which at the moment has troubled children coming under Section 25 of the Children Act, but it used to have children from the Youth Justice Board. It is a very small unit, taking 10 to 12 children. From my frequent visits there I have had the opportunity to see how this very small unit works extremely well with young children—those under 15. I am very unhappy about the Government’s proposals that children as young as under 15 should go into a large group of children, many of whom will be over 15, from whom they can learn all too much. I therefore also support the noble Lord’s amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the arguments on this issue have already been well developed today by other noble Lords who have spoken, as well as at earlier stages of the Bill. I do not propose to develop the position that I have taken earlier in the Bill’s passage.

We all know that the reason for this House’s amendment was that the virtually unanimous professional evidence is to the effect that it would be unsatisfactory to place a small number of girls and younger boys in a secure college with a very large number of older boys. The pathfinder college at Glen Parva in Leicestershire is proposed to hold about 320 young people. There are currently only about 45 girls and 40 offenders under 15 in custody throughout the secure estate. Even adopting for Glen Parva a very wide catchment policy—which would itself be undesirable because of the distances these children would be from their homes, although I accept that that is not always a negative—it is highly unlikely that more than about 15 girls and 15 boys under 15 could be placed in Glen Parva. In my view, that is entirely unacceptable. It would be intimidating and unsafe for either group to be in this tiny minority in this very large secure college.

The Government say that they will not put boys under 15 or girls into Glen Parva at its opening. In a sense that concedes the case. They nevertheless say that they wish to be free to put boys under 15 and/or girls in Glen Parva or other secure colleges in the future. They propose to go ahead with the building of the two houses for these groups at Glen Parva. The design for Glen Parva has those two houses for girls and younger boys cut off from the main site, but the children held in them would share the main health and education block and access to the main site with a very large number of older boys.

My noble friend says that the Government will not use secure colleges in this way until they lay a report before Parliament. However, originally they did not say who would write that report. It now appears from what my noble friend said that it is the Secretary of State who will do the consulting and therefore, presumably, the Secretary of State who will prepare and approve the report. However, it is the Secretary of State’s own plan to use Glen Parva. The Minister does not say whether it will be incumbent upon this or any future Government to follow the recommendations in a report, nor has he offered any effective form of parliamentary scrutiny. An offer of a chance for Parliament to debate the report, with no right to stop a proposal proceeding, is no safeguard.

I have made it clear to my noble friend that I would want to agree a compromise on this issue if it were possible to do so. In particular, I accept that there is no definition in the Bill of what is meant by “secure colleges” or what size they should be. They could be smaller colleges than Glen Parva and more specialist, so that an educational environment that was mixed in gender and age might not be so inappropriate. However, that is not what is proposed at the moment. If the Government were to offer not to put under-15 year-olds or girls into secure colleges without parliamentary approval, that would offer Parliament a chance to consider and vote on any new circumstances that might be said to justify the detention of these groups in secure colleges. However, when my noble friend Lord Willis asked the Government for such an assurance, he was categorically refused it. The noble Lord, Lord Beecham, says that he was naive to ask for it. I do not believe that it is a naive request; it is a justified and justifiable one, and the Government’s position can be sustained only if they accede to it.

To date, no opportunity for parliamentary scrutiny has been offered. In these circumstances, while I have listened very carefully to what the Minister has to say, I find it impossible to support the Government’s position.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I support the noble Lord, Lord Ramsbotham, largely because since this House last discussed secure training colleges, two secure training centres have been given notice of closure by the Youth Justice Board. One of those, Hassockfield, was in my constituency. What lessons have the Government learnt from the introduction of secure training centres? My recollection is that I opposed them when we were in opposition when the legislation went through in, I think, 1996. My Government said that they had to carry that through because the contracts had been signed. When Hassockfield opened, I was contacted virtually daily by the police who said, “The children in here are too young. They do not understand what it means to be in a secure establishment. We are being called every day and they’re ending up in police cells”. Indeed, they wrecked the place. So the initial contract, which was given to an American company, then went to Serco. Someone from the Youth Justice Board had to be in there full-time to sort out the regime, and since then Hassockfield and, I understand, the other secure training centres have not taken many children under 15 because the regime in a secure centre, even with what Ofsted says is now very good education, is not suitable for young children.

The other issue is about being near home. There was a tragedy at Hassockfield. I discussed it at great length with a whole range of people, and one of the reasons for that young boy taking his life, although by no means the only one, was his distance from home and his contact with home and his own community.

The Government are taking enormous risks with the safety—and the ability to change and handle their lives—of children in incredibly complex difficulties. In relation both to having one centre in the middle, to which children have to travel a long way, and to the issues of the age group and including girls, the Government need to learn the lessons of their own history in setting up secure training colleges. They should think about this again and look at the language used when the colleges were introduced. It was very similar to the language that Ministers used in this House today and in the Commons last week. If they do so they will recognise that they are making a mistake and that they really do need to rethink this policy.

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[Lord Faulks]

My Lords, this has been a lengthy debate in which we have had some important contributions from a number of noble Lords, some of whom have been with us for the whole journey of scrutiny and some of whom have made their first appearance today. I am sorry that more noble Lords were not able to participate in the very considerable number of meetings in which the Government explained what they were doing. We answered many of the questions which have been raised by a number of noble Lords for the first time today. We answered them in correspondence. We also had a number of meetings in which we went through the plans. While I do not wish any disrespect to those noble Lords who have asked a number of questions to which I have already given the answer in various contexts, I hope they will forgive me if I refer significantly to the debates that have already taken place at Second Reading, in Committee and on Report, and to various letters to all Peers. I will try to keep my remarks as short as is consistent with answering the general burden of the debate.

I was disappointed that my noble friend Lord Marks said that there had been no opportunity for parliamentary scrutiny. I accept that the scrutiny may not have satisfied him or other noble Lords that the plans are appropriate, but scrutiny there has been.

[Lord Marks of Henley-on-Thames]

I am sorry to interrupt my noble friend but he has plainly misunderstood what I was saying. I am not complaining about the scrutiny of this Bill. I am complaining about the lack of a parliamentary approval proposal from the Government before girls and under-15s can be placed in secure colleges.

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[Lord Glenarthur]

My Lords, before my noble friend sits down, perhaps he would reconsider the issue of whether it is more appropriate to go to the affirmative resolution rather than the negative. I have sat on the Front Bench for many years with many of my colleagues here and have been through the same debate, but often it is wiser and more sensible to try to pursue something that allows Parliament to have that debate rather than simply to brush it aside. I understand the negative procedure only too well, and I hope that on this point my noble friend will reconsider.

[Lord Marks of Henley-on-Thames]

My Lords, before my noble friend answers that question, will he confirm to my noble friend Lord Glenarthur and the whole House that the present proposal is that there would be no parliamentary procedure at all apart from the laying of a report for consideration—no vote, no regulations and no SI is proposed?

[Lord Faulks]

I thought that I had made it reasonably clear that there will be the laying of the report. That is the limit to which I committed and I commit to it now. It is beyond what we committed before. It may not be enough for some noble Lords but none the less the report, informed as I have said that it will be, will enable Parliament to consider whether it is appropriate.

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[Lord Horam]

I totally agree. I said on a later clause. Here, we are dealing with a situation where the actual result would be highly unlikely to make any difference. The noble Lord’s point would not occur because obviously they would hope to win their case. Here we are dealing with cases where it would be highly unlikely to make any difference at all and therefore the point made by the noble and learned Lord, Lord Woolf, does not arise.

There is abuse which I think is doing the rule of law and judicial review damage. That is a real problem. How does this Bill affect that? There is a suite of measures here to deal with the treatment of interveners, financial transparency and lowering the bar slightly in meritless cases where it would make no difference to the eventual result. That is a complex series of measures and we do not really know—I do not suppose the Government know entirely—what effect they will have but clearly it is an attempt to remedy abuse. Remedying abuse in this case would serve the purpose of government. It would certainly help judicial review because it would diminish the impression that people have, rightly or wrongly, that it can be used and abused in the way I have described and is happening up and down the country. You could argue that it would not really detract from judicial review but in many ways would improve its performance. I say to my two Conservative colleagues that one aspect of being a Conservative is that very often you want to improve things for the sake of keeping them as they are. It is a classic Conservative position. I would not regard it in any way un-Conservative to be asking to improve these matters rather than defending the status quo, warts and all.

I think there is a serious problem here. The Government are addressing it. Noble Lords may disagree with the way they are addressing it. I think that the Government need some understanding of where they are coming from. In response to the views in the other place, they have listened and changed their position; not here, I agree, but in later amendments. I wholly agree that the discussion in the other place was truncated and in many respects very unsatisfactory, as has been pointed out. None the less, between the two Houses, we are beginning to get to a more rational and sensible position that acknowledges that there are problems and tries its best to find a way through without damaging judicial review.

[Lord Marks of Henley-on-Thames]

The Government have repeatedly characterised this clause as being concerned with cases involving procedural irregularities only. Indeed, the Minister used the term “technicalities” as a diminutive, which is inappropriate. Such terms are inaccurate in relation to this clause. At very best, they are inadequate. These are public law cases concerned with unlawful conduct of the Executive where an organ of government has ignored the law in taking or carrying out decisions.

With the greatest respect to my noble friend Lord Horam, I must say that his assertion that the system of JR is rife with widespread abuse is unsupported by the evidence. Nor does he take into account the fact that judicial review is, at its heart, about decision-making in accordance with law. Nor does he take into account the fact that, certainly over recent years, judges have made it very difficult indeed, in the exercise of their discretion, for unmeritorious cases to get permission to proceed.

I do not regard this clause as merely protecting government from the effects of minor procedural errors that have made no difference to decision-making. I regard it, as do other noble Lords who have spoken, as an attack on the rule of law and an attack on parliamentary democracy. To take the example given by my noble friend Lord Lester, where a statute is passed by Parliament, often after discussions such as the ones that we have had on this Bill, which requires that the Government consult before making a decision, it should not be open to government to flout that requirement imposed by Parliament and then claim an immunity from judicial review on the basis that a lawful consultation would have made no difference to the outcome of the decision-making so that permission and relief should be withheld. That is the heart of the point made by the noble Lord, Lord Deben.

The public interest amendment of the noble Lord, Lord Pannick, reflects an amendment that I moved in Committee. If carried, and if this House insists on it, a court will not be compelled to say, where a government department has acted unlawfully, that the decision would have been the same anyway and therefore permission to apply for judicial review must be refused and relief must be withheld. The court will instead be able to say that the decision was illegal and, before it can be properly made, the Government must follow the law—quite simply because that is what the law requires. That is the rule of law. That respects the will of Parliament. That gives effect to be principle of government accountability. This House has a constitutional duty to be very careful indeed when what is happening here happens—when the Executive seeks parliamentary sanction for breaking the law, as this clause does. I shall support the amendment of the noble Lord, Lord Pannick.

[Lord Mackay of Clashfern (Con)]

My Lords, the question in this particular amendment is a simple one. The courts have developed law in relation to situations in which the outcome would not be any different if the conduct complained of had not occurred. My understanding of the decision in that area is that the court may decide, if it concludes that the result would inevitably be the same, that the relief is to be refused.

The government Motion that is the subject of this substantial debate simply raises the question of whether that would be inevitable or “highly likely”. In the civil law, of which judicial review is part, the ordinary rule is that the balance of probabilities determines the fact. That is the question that was raised here and there is quite a lot to be said for that point of view. But the situation tonight is affected by the way the debate was conducted in the other place. It is not for us—it is certainly not for me and not for any of your Lordships—to criticise what happened in the other place. On the other hand, the Lord Chancellor has apologised to a Member of the other place for the mistake that he made, which is fairly fundamental to the consideration of this amendment. Therefore, for my part, I would like to see this amendment going back to the House of Commons, not necessarily to change the result—that is a matter for the Commons—but so that the debate should proceed on a basis that is 110% correct.

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[Lord Marks of Henley-on-Thames]

My Lords, throughout the passage of the Bill, my concern with these clauses has been that they would require any individual who was minded to support a judicial review application financially to disclose to the court his or her resources. That requirement is coupled with a requirement for the court, when considering questions of costs, to consider making a costs order against a supporter of an unsuccessful application, making use of the information disclosed.

With the greatest of respect to his argument, the Minister understated the effect of Clause 66. He said that the court would have to consider the information; what he did not take into account was that the court would be enjoined to consider making a costs order against the supporter. The inevitable effect of that would be to deter people from supporting judicial review applications financially. Group applications—for example, by groups of villagers or school parents—would then become very difficult indeed to fund.

This House’s amendments gave the court a discretion relating to financial information and costs orders. The Commons rejected our amendments and, in response to the concerns raised, my noble friend Lord Faulks and the Government have nevertheless introduced an amendment to provide that rules of court would exempt some supporters of judicial review applications from the financial disclosure requirement, provided their support did not exceed a level to be,

“set out in the rules”.

The difficulty, as the noble Lord, Lord Pannick, pointed out, is that the Government and my noble friend have given no indication of the level of support intended to be covered by their amendment. My noble friend and his officials—I am grateful to him and them for this—have met me and, I understand, others to discuss this amendment. I quite understand their position, enunciated by the Minister, which is that further work would need to be done to set an appropriate level. However, the Government are able to say nothing as to the level intended, except that it is likely to be a “few hundred pounds at most”. That is not satisfactory.

A very limited exemption for small-scale supporters would not significantly reduce the chilling effect of a disclosure requirement. It will not be anything like enough to enable groups to raise meaningful funds to support JR applications. I remind the House that most solicitors now charge about £250 or more per hour, even outside London. For the exemption to be meaningful, a supporter would have to be permitted to contribute several thousand pounds before financial disclosure was required. I accept the formulation put forward by the noble Lord, Lord Pannick, but that could be assessed when formulating the regulations on a percentage basis. I had in mind a figure of 20% as the starting point. I had in mind a figure of somewhere between £10,000 and £15,000 as a likely level below which disclosure would not be required. However, from the Government we have heard nothing, except that it would be figure of a few hundred pounds at most. That is not a significant concession.

What is necessary is that individual supporters providing small or medium sums, who are doing so genuinely to support the application—not as the real principals and not to try to control the litigation—should not be deterred from so doing by the costs threat involved in this clause. We need that as a statement of principle, but it needs to be a statement that shows that the principle has changed to meet the objective that I have just set out.

The Government’s stated aim in these clauses, restated by my noble friend, has been limited to ensuring that wealthy people do not use impecunious applicants to pursue litigation as fronts, with no risk in costs to themselves. He rightly used the argument of shell companies as supporting an argument that their promoters should not get protection. That is an understandable aim, properly expressed by my noble friend, which no one could sensibly criticise. However, I remind your Lordships that the court already has the power to require information and make costs orders against non-parties in such circumstances. However, if the Government wish to legislate to implement their stated aim, it would be entirely reasonable to expect them to limit the legislation to what is required to achieve that aim. That would mean a firm commitment to this House that the level set out in the rules would be such as to exempt from financial disclosure small and mid-range supporters of judicial review applications who were not seeking to control the litigation.

I have made it clear to the Government that I would be prepared to support the amendment in lieu if there were a clear statement that genuine supporters in this category who provided significant funds but did not wish to control the litigation would be protected. In the absence of such a statement, I feel obliged to support the Motion of the noble Lord, Lord Pannick, to insist on the Lords amendments. The Commons will then have to consider whether it is prepared to incorporate the sort of principle that I have enunciated to protect the financing of group litigation and incorporate it into an amendment in lieu when it is sent back to this House.

[Lord Mackay of Clashfern]

My Lords, I had understood the Government’s proposed amendment as conferring power on the rule committee to determine what the rules should be. There is, of course, an ultimate power but I would expect the rules to be fixed by the rule committee, after appropriate consultation and with a fair amount of knowledge of how the whole system works. This kind of amendment would deal with the sort of problem that the noble Lord, Lord Adonis, and I referred to in Committee. The Government’s amendment would be a sensible one to make and the Minister has explained the principle under which it would work. I am perfectly happy to leave that to the rule committee to determine, in the light of its great experience and knowledge of the situation.

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[Lord Faulks]

That is entirely correct. The discretion would exist on whether to award costs. This is the discretion which is fettered, I entirely accept, to the extent that the Government think it is appropriate for it to be fettered because they consider that, because of what results from bringing a judicial review in terms of cost consequences, it is perfectly reasonable to provide within the realms of privacy the basis on which you are funding. That excludes those small contributors whom I have characterised, and whom I accept would be covered by the rules. Beyond that, however, we consider it to be an appropriate obligation. It is there to prevent what has been a potential evil. I will not go over the Richard III case again; the noble Lord, Lord Beecham, is relieved. Undoubtedly there have been cases where shell companies have been used; the case is lost; there is nobody for anybody to recover costs from and again the taxpayer loses. This can happen. This is not a draconian matter: we have made a concession which, I suggest, is a reasonable one. The rule committee can be trusted to come up, with its experience in the matter, with an appropriate compromise reflecting the principles that I have endeavoured to outline on the Floor of the House.

[Lord Marks of Henley-on-Thames]

I have two questions for the Minister. First, will he clarify that the figures for claimants’ costs—and it is, of course, the claimants’ costs that are important when considering financial information—are those related only to straightforward cases? Secondly, will he confirm that I am right in saying that the level that the Government intend as a matter of principle should be reflected in the rules is a level of only a few hundred pounds—in other words, very small contributions rather than significant contributions from larger contributors?

[Lord Faulks]

In answer to my noble friend’s first question, I did use the word “straightforward” and that is entirely correct; I adhere to that. On the second question, I am reluctant to give figures because, for the reasons I have given and in terms of what we are talking about, it relates to a small contribution to a fighting fund. That would not be £10,000 to £15,000. I do not think it is appropriate to go beyond that. That is a matter that I will leave to the rule committee: it will arrive at an appropriate figure in the light of its experience.