Human Rights Act

Debate between Robert Neill and Sadiq Khan

Tuesday 30th June 2015 Westminster Hall

[Robert Neill]

I am grateful to my hon. Friend for that promotion, which is unexpected and undeserved on both counts. I always look forward to the future with optimism as far as those two matters are concerned. Extraterritoriality is an important issue. It has exercised those involved in a number of recent Court judgments, and it is precisely the sort of area where we might find a proportionate and sensible way forward.

I hope we will engage with the profession on these issues, because there is a great deal of knowledge and understanding about this issue. We tend to regard what happens in the Strasbourg Court as a bit of a sideshow, and that would be a mistake, whatever side of the argument we are on.

[Sadiq Khan]

I congratulate the hon. Gentleman on his election as Chair of the Select Committee, and I wish him well. He talked about potential reform of the Human Rights Act. Does he envisage, and is he optimistic about, there being additional rights, or does he think the Government intend to take away rights that are in the Act?

[Robert Neill]

That is the question the Government need to answer. The phrase “based on the convention” is important. I do not say that every bit of the convention’s wording is absolutely perfect in modern terms, but I think most of us would say that we want the principles that underpin the convention to be incorporated in any proposals. For what it is worth, my early urging to the Government is that the closer they stick to the convention’s wording in anything incorporated into British law, the better, because that would give us great clarity and security. Then we must look at the point raised by my right hon. and learned Friend the Member for Beaconsfield and my hon. Friend the Member for Banbury (Victoria Prentis) about the unintended consequences that were not always seen through in the Act, to do with extraterritoriality and related matters. I hope we will get assurances from the Minister on that point.

Criminal Justice and Courts Bill

Debate between Robert Neill and Sadiq Khan

Monday 24th February 2014 Commons Chamber

[Sadiq Khan]

I do not subscribe to the view that citizens have a role to play only once every five years. They have a role to play in an active democracy between elections as well. That is the difference between the hon. Gentleman’s majoritarian view and mine. The irony is that the Foreign Secretary gets it. If the hon. Gentleman had listened to the Foreign Secretary in the statement on Ukraine and Syria, he would have heard what he had to say. It is a shame that the Justice Secretary and the hon. Gentleman did not listen to what the Foreign Secretary said about the importance of the rule of law.

[Robert Neill]

rose—

[Sadiq Khan]

I shall make some progress, but I shall come back to the hon. Gentleman.

I hold up my hands up as a former Minister and admit that for someone who is part of the Executive the threat of being judicially reviewed can sometimes feel like a nuisance. Judicial review can be a pain for decision makers, but that is the point. It is about making sure that decisions are taken properly, follow due process and are within the laws of the land. If we expect our citizens to abide by the rule of law, the Government should be no different, which means acting lawfully, not scaring off opponents before the game has begun, or imposing huge consequences on the team that loses. To stretch the sporting analogy further, under their proposals, the Government would be playing down a steep slope for the full 90 minutes, defending a much smaller goal than the one into which they would be trying to score. Their opponents would be running uphill for the whole game, and have a much smaller set of goalposts to aim at. That is not fair, and it is not justice.

It is worth noting what is not in the Bill. Despite all the Government’s recent talk about victims, there is nothing about a victims law—what a missed opportunity—which will disappoint not just victims and potential victims but no doubt the hon. Member for Witham (Priti Patel), who has been vocal in her support for the victims law proposed by Labour. Instead, victims and witnesses will have to wait for a Labour Government to serve that law to stop them being ignored and trampled by the justice system. There is also little in the Bill to address the specific problems faced by women, those with mental health problems and ethnic minority communities in our justice system.

I have to congratulate the Lord Chancellor. He has achieved something in his short time in the job that few of his predecessors could ever have dreamed of: he has managed to alienate every part of the justice system. Prison staff are more under pressure and threatened in their day-to-day work environment than ever. Probation staff feel betrayed. They have done all that has been asked of them, then been sold off to the likes of those serial under-performers, G4S, Serco and A4E. Legal professionals are horrified at the erosion of access to justice and the insulation of the powerful from challenge that has happened under the Lord Chancellor’s watch. Charities and community groups are demoralised at the ignorance shown towards the European convention on human rights and the Human Rights Act. Things are so bad that there is even the threat that the legal profession might boycott the Justice Secretary’s planned celebrations for the 800th birthday of Magna Carta next year. What is more, he has managed to deliver the first ever industrial action by barristers.

The Bill is all about trying to create some work for rebellious, bored and troublesome Back Benchers, some of whom we will hear from later. The Bill may well succeed in doing that, but the idea that it will do anything substantive to reduce crime, help victims to be at the centre of the justice system, improve our courts system or keep our communities significantly safer is a joke, a bit like the office of Lord Chancellor has become with this incumbent.

--- Later in debate ---

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow my hon. Friend the Member for Ealing Central and Acton (Angie Bray), an old colleague on the London Assembly where we attempted, among other things, to scrutinise the Metropolitan Police Authority in its early days. I strongly agree with the sentiments she expressed.

I am delighted to see the shadow Secretary of State, the right hon. Member for Tooting (Sadiq Khan), back in his place. With respect, his was very much a speech of two parts. When I listened to the first part, I thought, “Well, he clearly wants to stand for Mayor of London because he is doing a south London knockabout comic turn.” I was glad that he turned serious in the second part, although I do not agree with all of his analysis. I gently say this to him: keep the day job going because potential Mayors of London are now expected to be various turns, comic or otherwise, from north of the river rather than south. Leaving aside our political disagreement, I say with respect that the one thing that did trouble me—I hope it was perhaps a slip of the tongue—was his saying, as it certainly appeared to a number of Government Members, that judicial review should be capable of challenging primary legislation. I cannot believe that is what he meant to convey.

[Sadiq Khan]

indicated dissent.

[Robert Neill]

Given how the right hon. Gentleman shakes his head, I will take his word on that. I think we all accept that judicial review was not and never should be intended to challenge the will of Parliament. It does, though, have a legitimate role in relation to secondary legislation and the Executive, and I will return to that later. I am grateful that he has clarified his view on that point, which troubled me because it was surprising, if I may put it that way.

I warmly welcome the thrust of the Bill and congratulate my right hon. Friend the Secretary of State on introducing it. I will not touch on all parts of the Bill, but I want to discuss some areas that remind me of my past life—although that may be a dangerous thing to talk about at too much length in this House—and professional experience, namely the 25 years or more that I spent at the criminal Bar. I am delighted with some of the changes to make sentencing more realistic. I do not take the view that sentencing must always be draconian and that all those convicted in the courts are beyond a degree of redemption. That is clearly not the case. It is important, however, that sentencing has the confidence of the public, the victims and the majority law-abiding community. It is also worth remembering that sometimes the families of offenders are themselves victims to a degree. It is very important to have confidence in sentencing, so the greater transparency proposed by the Bill with regard to the amount of time served and the consequences of bad behaviour is a valuable step forward.

The same applies to the use of cautions. I have sympathy with the point made by my hon. Friend the Member for Shipley (Philip Davies) and the hon. Member for Kingston upon Hull East (Karl Turner), who is another former practising barrister and to whom I apologise because I was not present to hear his speech. It degrades the value of cautions to use them for serious offences for which any ordinary, right-thinking member of the public—in other words, to use the famous lawyer’s test, any man or woman on the Clapham omnibus—will conclude that they were never intended to be used. Cautions were intended to be used for trivial matters, so using them for more serious offences degrades their value in those areas where they have a legitimate role. I hope there will be no suggestion that there has been any pressure in terms of targets or resources. The Government have taken a step in the right direction.

A logical step on from that is recognising the importance of making best use, at all levels, of the available judicial resources. Just as it is important to use such resources to prosecute really serious crimes before the court, rather than use cautions, it is entirely sensible for the Bill to free up resources to deal with what are not regulatory, but essentially non-contentious—in so far as anything can be in the criminal justice system—matters. Many of us with experience of the criminal Bar will have been instructed as young, junior advocates on behalf of the prosecution—no doubt happily for us and our fortunately moderate bank balances—to read through and prove a whole list of traffic offences, even in instances of non-appearance. The empty courtroom could have been used for other cases, but time and again we would read out section 9 statements and produce various certificates of conviction that the traffic lights were working properly and heaven knows what, just to prove a case that nobody was arguing about. Removing that anomaly is an important, valuable and major step forward. I will not repeat the point that there are sensible safeguards built into the system for those who want to argue their case.

By way of digression, once upon a time there was—I think there still is—an offence of failing to provide a statutory statement of ownership. In those days, my earnings at the Bar were greatly boosted by being standing counsel to Croydon council and invariably turning up to prosecute such matters without anyone turning up to contest them. That is an extreme example, because sometimes cases got appealed and nobody turned up at the Crown court to prosecute the appeal either. Removing that sort of nonsense from the system has to be in everybody’s interest.

Ensuring that there is an open and publicly accessible record of the system is sensible, because it means that we need not clog up a fully equipped courtroom with witness facilities and other valuable resources that could be used for a contested hearing. It could be done in an anteroom and the press could be provided with access to the results. That is an entirely sensible and proportionate response, for which the Government are to be commended.

A number of the other changes are very useful and sensible. I will not go into the details, but I welcome the changes in relation to rape. Pornographic depiction of rape does seem an obvious matter to deal with—Rape Crisis South London in my constituency has done a lot of work on it—and I am glad that that has been recognised. I think that my hon. Friend the Member for Ealing Central and Acton would agree with me that there may still be gaps in the adequacy of sentencing for other sexual offences, particularly in relation to videos and DVDs of various kinds—we might be able to look at that in due course—but the change is a valuable step forward that we should all welcome.

I am pleased about the arrangements for costs. I was very often instructed to apply for costs against a convicted defendant. That was fine as far as it went—effectively, only the prosecution costs could be awarded, and whatever legal aid contribution was made—but it is legitimate to go further. After all, we are talking about only those who have been convicted. It is currently regarded as a legitimate and proper means of sentencing to give a discount for a guilty plea to reflect, first, remorse; secondly, the potential avoidance of trauma for witnesses; and thirdly, the saving to court time. Those are all legitimate factors, and if we regard the saving of court time as a legitimate factor in the equation for a penalty in the broadest sense, it is not unreasonable to calculate costs more realistically in terms of the totality of court time, rather than just of prosecution costs or an amount towards legal aid. The very sensible change will add to the transparency of the arrangements being put in place.

The change in relation to jurors is valuable. I am particularly pleased about that because my constituent Mr Graham Pound from Bromley specifically raised that matter with me. I received a very sympathetic response from the Lord Chancellor and Secretary of State for Justice, who was of course not able to indicate exactly what he had in mind, but I know that Mr Pound is delighted with the outcome, which reflects reality. Although I accept that there are differences, I have a measure of sympathy with the suggestion that we might go further. My only query with the point made by my hon. Friend the Member for Shipley is that there is a difference between the burden of jury service that we expect someone to undertake, which is generally for a comparatively limited period, and the burden of being a busy member of the bench in a busy magistrates court or of sitting full time as a circuit judge.

In relation to the judiciary—I suspect that such matters could be dealt with by regulation—there might be an advantage in bringing back some recently retired senior circuit judges to sit in the Court of Appeal, as they perhaps did before they retired, while sparing them the burden of presiding over their home courts as resident judges. That might be a very modest first step in maintaining a degree of judicial independence, particularly in the criminal system, because by no means all High Court judges will have the degree of experience of criminal cases at first instance and of regularly sentencing heavy crime that those recently retired circuit judges have. I commend that thought to the Minister as a means of building on the welcome proposals about juries.

I also welcome the changes on the whole question of judicial review. A different part of my experience kicks in on that—as a local councillor and a Minister. I accept the proposition made by the shadow Secretary of State and other Opposition Members that there is a role for judicial review, which can have the salutary effect of concentrating the mind of decision makers and those who advise them. After all, it is not proposed to abolish judicial review, but, equally, it must be approached with a degree of proportion. One difficulty has been a lack of balance and proportion in its use. That is a shame, because there is a risk that a valuable tool, which can be a safeguard for individuals, may become discredited by overuse and exploitation by individuals or groups for what are often seen as partisan, if not party political, means or entirely self-serving ones. The Bill rightly seeks to rectify that.

I am perhaps even older than my hon. Friend the Member for Huntingdon (Mr Djanogly), who talked about being a young Bar student in the ’80s and learning about administrative law. When I did my law exams in the 1970s, judicial review was a very recent concept. It was coming back into existence, thanks largely to Lord Denning. Nowadays, we do not consider him to have been a judge with the most liberal of sentiments, but he was seen as rather radical in those days.

Until the late ’60s and early ’70s, there was virtually no administrative law in this country. It is therefore slightly over-egging the case for judicial review to say, as even some distinguished judges do, that it has been an inherent part of our system since Magna Carta. That is not correct. It has grown up from a root that was in the common law. Through the various prerogative orders, such as mandamus and certiorari, it was constructed by judges into a judicial tool as society and government action became more complex in the ’50s and ’60s. It is a fairly recent feature of our system and it fulfils a valuable role.

Judicial review came into existence because the system needed to be flexible. Perhaps Members will remember Lord Denning telling a former Labour Attorney-General,

“Be you never so high, the law is above you.”

That was in reference to a Labour Government behaving in a peremptory fashion. If the system needed to be flexible at that time, it is equally reasonable to say now, when the industry that has grown up around judicial review has become so oppressive that it has overbalanced the system, that we should pull it back into proportion. That puts what the Secretary of State is seeking to do into its proper context.

Some of the proposals are sensible and straightforward. I do not think that anyone disputes that it is sensible to have the same time limit for a judicial review as for a statutory challenge under the Town and Country Planning Act 1990. Nobody has argued with the reduction in the time limit, because anybody who has dealt with planning matters knows that, particularly now that there has to be so much pre-application disclosure and there can be written representations from objectors and so on, the issues are very well crystallised in people’s minds. I suspect that that is not the most contentious issue.

There are issues with clause 50, although I do not share the criticism of it. I approach it from a slightly different angle. It seems to me that it is not unreasonable to move from the current inevitability test to a test of whether the outcome is likely to have been affected. Ironically, the current inevitability test seems to import something rather like the criminal burden of proof of reasonable doubt—or perhaps an even greater burden of proof—into what is essentially a civil procedure. It is not unreasonable to move to something that is closer to the normal test in civil proceedings of the balance of probabilities.

It is argued that we must act almost punitively to be a constraint on bad decision makers. However, I would have thought that clause 50 contained enough flexibility to provide a more balanced approach, to prevent judicial review from falling into disrepute when somebody wins on a purely technical error by a decision maker that was under no circumstances taken in malice or made negligently, and that would under no circumstances make any difference to the outcome. It is not unreasonable to say that the costs of a judicial review should not be fully provided in those circumstances.

We generally expect much more transparency in decision making in this country. In relation to clause 51, I think that that ought to apply, to a degree, to judicial decision making and to the judicial process generally. Because more and more judicial reviews are, in reality, supported and funded by groups—sometimes lobby groups, sometimes commercial groups that may have an interest—it is legitimate for the taxpayer and law-abiding citizens to have an idea about the source of that funding and, to some degree, the real motive behind the judicial review. Clause 51 is a proportionate means for dealing with that. Similarly, interveners must be aware that a considerably greater cost will occur through a legitimate intervention, especially when—as we have all seen in some cases—the intervener may become the principal driver of the judicial review, and do much more to extend the length of the hearing than the initial parties. Under those circumstances, it is not unreasonable that they should bear the bulk of the risk, since they have driven the bulk of court time as a consequence of the way they pursued their intervention. I would argue that the Bill contains a balanced package on judicial review that should commend itself to the House.

I will not dwell on what might have been in the Bill as I think what it contains is good and valuable. I am, however, a little tempted by the comments of my hon. Friend the Member for Shipley on the accountability of judges. I do not think the Bill is necessarily the right vehicle for that, but we are talking generally about improving the accountability of decision making, and about accountability and transparency within the system. Given that judicial decisions—in judicial review or otherwise —sometimes affect not only large bodies or the state but can affect individuals, there is perhaps an argument to be had about whether our current arrangements to ensure consistency of professionalism in the judiciary are adequate.

There is a strong case for saying that Parliament must be wary of trespassing on the independence of the judiciary. However, I had in my casework a constituent who was seriously aggrieved in the national press because of an inaccurate judgment. In the obiter dicta of the case, the judge quoted wrongly from the papers before him, but released the judgment to the press, with considerable adverse publicity for the person concerned. There is, therefore, an argument for saying that when the Office for Judicial Complaints says, “Unfortunately that is not within our powers because he turned up and he wasn’t drunk and he wasn’t abusive in these terms. There is nothing we can do about this”, we might think that is not really fair. Would we not expect a professional judge to get the facts right and to have read the papers properly? That is an interesting area to consider.

That brings me to my final point, which is that, ultimately, the court system is about transparency and balance. Sometimes balance shifts one way or another, and it is the job of this House, and Parliament as a legislature, to decide on the appropriate balance in the circumstances in which we find it. I agree with the Secretary of State that the balance has moved too far one way, and the Bill seeks to redress that. I therefore commend it to the House.