Criminal Justice and Courts Bill

Sadiq Khan Excerpts

Monday 24th February 2014 Commons Chamber

[Sadiq Khan (Tooting) (Lab)]

Let us be frank: this Bill has come from nowhere. If the Government really wanted a new justice Bill, the obvious place to trail it would be in the imminent Queen’s Speech, not today with a Second Reading towards the dreg ends of this parliamentary Session. So what is going on? With 15 months to go until the general election, experienced heads around Parliament say that it has never been so quiet.

We know the old saying that the devil makes work for idle hands. Recent weeks have certainly shown that to be the case, with the Government suffering a number of troubling episodes with their own Back Benchers, perhaps in no small part because the thin legislative programme leaves their own sides twiddling their thumbs. Nature abhors a vacuum; so too does Parliament. Disquiet, plotting and rebellions tie the Government in knots, leading to the absurd situation in which the Opposition had to step in and vote down a Tory Back-Bench amendment on the Government’s own Immigration Bill—an amendment that broke the rule of law—while the Conservative majority in the coalition sat on their hands. Has anyone heard of anything so pathetic? We have a governing party that could not even vote in favour of its own Bill, and a Lord Chancellor who swears an oath to uphold the law but who could not even bring himself to vote for that rule of law.

We can guess what happened. The Prime Minister had probably sent out a desperate memo, pleading with Cabinet colleagues to bring forward legislation—any legislation—to fill the pitiful gap in parliamentary schedules and to keep Tory Back Benchers happy and busy. Who was the only willing and eager star pupil to respond? Who was as keen as mustard to be top of the class? Yes, it was the Justice Secretary. I can see his response to the Prime Minister. It would start, “Dear Dave”. I appreciate that that is not parliamentary etiquette, but he is known as the “Call me Dave” Prime Minister.

The letter would go on, “I read your memo, begging for legislation to make it look like this Government are doing something, and also to keep those pesky, ungrateful Back Benchers happy. I know they hold you responsible for not winning the last general election. I am only too willing, Dave, to rush forward some legislation. It is a bit of a Christmas tree Bill, but it does mean that we can shove on as many baubles as we want. After all, the more tabloid friendly stuff might keep UKIP off our backs, along with those ungrateful Back Benchers of yours. Yours sincerely, Chris.”

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

rose—

[Sadiq Khan]

I give way to the Chair of the Justice Committee.

[Sir Alan Beith]

Does the right hon. Gentleman see real benefit in returning to the days of a Labour Government when there was a criminal justice Bill every year—sometimes there were two—that often repealed a previous Bill and was often not brought into force?

[Sadiq Khan]

I am really pleased that the right hon. Gentleman asked that question. This is the third justice Bill of this Session. Two of the Bills have not yet received Royal Assent, and the Government are having a third bite of the cherry. Furthermore, the Justice Secretary tried to rewrite history. During our 13 years in government, crime did not go down by 5%, 10% or even by 20%; it went down by 43%, and that was according to independent statistics and not to dodgy figures that the Justice Secretary likes to rely on.

This latest criminal justice Bill is having its Second Reading before either of the other criminal justice Bills —the Anti-social Behaviour, Crime and Policing Bill and the Offender Rehabilitation Bill—that the Chair of the Select Committee was so keen to support have even received Royal Assent. Talk about desperation! The Select Committee Chairman should listen. We know the Government are in a mess when they bring in new laws to amend laws that they passed only a year ago, as some parts of this Bill seek to do. That is the mess this Government are in, and that is the shambolic way they are running our justice system.

I will not go through every one of the Bill’s 63 clauses, but I want to make myself clear. There are some elements of this Bill we support, some need further work and there are some we downright oppose. In part 1 of the Bill, the Government attempt to make up for the error they made when they abolished indeterminate sentences for public protection. I know that the hon. Member for Shipley (Philip Davies) feels strongly about that. They cannot admit they got it wrong and do a 180° U-turn, so they are doing a partial U-turn by bringing in a raft of new sentence proposals

Of course we support keeping the public safe from the most serious and violent criminals. That is why we opposed the right hon. and learned Member for Rushcliffe (Mr Clarke), the previous Justice Secretary, when he removed from judges the power to make IPPs to protect the public. To be fair to the current Justice Secretary, he would never have countenanced abolishing that power, but he cannot admit that because he voted for its abolition. We therefore have clause 3 and schedule 15 eligibility for life sentences and extended determinant sentences to try to address the mistakes of the Legal Aid, Sentences and Punishment of Offenders Act 2012.

Giving the Parole Board a say in whether some of the most serious criminals should be released at half time or when they reach two thirds of their sentence is no substitute for judges having the power when sentencing to impose an indeterminate sentence to protect the public. That will give the Parole Board an extra work load, yet I bet that the Justice Secretary cannot tell the House what extra resources he will give it to do its job properly. Silence. The Ministry of Justice’s impact assessment estimates that there will be at least an extra 1,100 parole hearings owing to the Bill. If all the supplementary work involved is added, there will be a huge addition to the Parole Board’s work load. How will that be resourced? Silence.

Surely even this Justice Secretary understands that a poorly resourced Parole Board making the wrong decisions about whether to release someone is as bad as automatic release. Wrong decisions made by the Parole Board because of an overburdened and stretched staff help no one; nor do delays in getting a hearing because of a backlog. There are problems and delays in prisoners getting the courses and treatments that they need as part of their sentencing plans and delays in getting a parole hearing, but let us imagine what the future holds.

Increasing the maximum for a handful of offences still leaves many offences uncovered that would have previously allowed a judge to give a more appropriate sentence to protect the public. By the way, although we do not oppose them, let us be clear that the provisions to increase the maximum life sentences for certain terrorism-related offences look tough, but the Ministry of Justice impact assessment confirms that this is a classic con trick. Do hon. Members know how many offenders were convicted in 2013 for the offences of either weapons training for terrorist purposes or training for terrorism? None. What about 2012? None. This new toughness will affect no one. None of those offences is being brought before the courts, so there is no one to punish and no one to deter. I wonder how the Justice Secretary intends to measure the impact of the change. He does not know. This is all about appearing to look tough.

[Chris Grayling]

If the right hon. Gentleman looks back, he will see that in the latter part of the past decade in the wake of the London bombings, our security services did a fine job of intercepting a number of terror plots. In that time, a number of people received 10-year jail sentences, which is the maximum available to the courts. On at least one occasion, the judge bemoaned his inability to provide a longer jail sentence because of the risk he believed the individual posed to the public. Happily, there are not large numbers of such cases. I think we would all agree that we do not want to see more of them. I hope that the provision will not be used very often, but it needs to be there in case it is necessary.

[Sadiq Khan]

The right hon. Gentleman confirms that he made a huge error in abolishing the indeterminate sentence to protect the public. He is trying to give the impression of being tough and providing the facilities that our security services need, but in fact the evidence suggests that there have been zero prosecutions for such offences.

Labour has led calls for something to be done about the inappropriate use of cautions for serious and violent offences, such as rape, and to stop those who repeatedly receive cautions. Those are not my words but something that the Library paper that accompanies the Bill says. The shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), has raised this, as indeed have I, at Justice questions. It has taken the Government some time even to admit that there is a problem with the growth of inappropriately used cautions for serious and violent offences.

I can remember the Justice Secretary getting into a tangle at Justice questions when trying to explain cautions for rape and saying that victims are to blame and that cautions are given because victims withdraw their statements. We must study in detail the proposals to see whether they will indeed address the public’s growing concern that the overuse of cautions is another example of this Government’s doing justice on the cheap.

[Gareth Johnson (Dartford) (Con)]

The right hon. Gentleman mentioned the Library briefing paper. He will have noticed that the highest number of both cautions and fixed penalty notices were issued in 2007, under the last Government. They are down by 45% today, which shows the contrast between the last Government and this Government.

[Sadiq Khan]

If the hon. Gentleman had done some more research and read the Bill as well, he would have seen not only that the number of cautions had started going down considerably but that this Bill does nothing to address the increased use of fixed penalty notices, penalty notices, warnings and conditional cautions. I expect that he will support our amendments in Committee when we try to improve this hopeless Bill.

Taken as a whole, the changes in part 1 of the Bill will see more people in our prisons. Indeed, the Government’s own impact assessment estimates that an additional 1,050 prison places will be needed. However, as of last Friday there were just 510 places left in the whole prison system, with the secure estate operating at in excess of 99% capacity, which usually sees Operation Safeguard kicking in. The Justice Secretary needs to be straight about where he plans to keep these additional prisoners: with his flagship Titan prison not due on stream until 2017, the public have a right to know that.

[Chris Grayling]

If the right hon. Gentleman looks at the numbers, he will see that we are planning in the next 15 months to open up around 2,000 new adult male prison places.

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[Sadiq Khan]

The problem is that the Justice Secretary is closing down prisons and does not explain where the money for these additional prison places will come from. His own impact assessment is silent on that.

[Chris Grayling]

There is a simple answer—those figures are in the budget.

[Sadiq Khan]

They are not in the budget, because the average cost of a prisoner is £42,000 a year. If we multiply that figure by the increased number of prisoners that the Justice Secretary’s impact assessment says there will be—1,050—it comes to a total of £44 million a year. That is not in the budget.

[Chris Grayling]

The right hon. Gentleman needs to spend a bit of time doing maths. I simply point, for example, to the new house block that will open at Parc prison in south Wales in the next few months, where the average cost per prison place is about £15,000.

[Sadiq Khan]

I am happy to have a ding-dong with the Justice Secretary. That figure applies in prisons such as Oakwood, which are failing—new purpose-built prisons. In a prison such as the one I visited last week in Winchester the average cost is £42,000; in a prison such as Wandsworth, it is £44,000; in Brixton, £46,000; and in Pentonville, £48,000. He is just plucking figures out of thin air and assuming that all 87,000 prisoners have the same £15,000-a-year cost. That is not the case and he has to be honest enough to recognise that there are far too many expensive prison places because of the legacy of his cancelling the new prisons and closing down too many over the last four years.

The concern is that the Justice Secretary talks a good talk, especially when briefing the right-wing media, but he simply does not care about or pay attention to detail, as he is working on the basis that he will be long gone before any of his mess needs to be cleared up. After all, he left a huge mess in the Department for Work and Pensions with his Work programme. He is assuming that somebody else will be left to pick up the pieces of privatising probation, of legal aid and of this prison population crisis.

[Dr Huppert]

While the right hon. Gentleman is in the mood to do mathematics, will he advise us of the extra cost to the public purse of the extra 30,000 people in prison between the beginning of the last Labour Government and the end of the last Labour Government? Will he give us an estimate of how much that cost?

[Sadiq Khan]

If we did a cost-benefit analysis of the number of people who were saved the misery of being the victims of crime as crime went down by 43%, and of the additional cost of having extra police officers, which led to a record decrease in crime, I am sure that the hon. Gentleman would accept that there was value for money.

[Keith Vaz]

As my right hon. Friend knows, there is a large number of foreign national prisoners in the prison estate, costing the taxpayer, as he says, an enormous amount of money. What we need is not legislation but a focus on trying to get them removed to their country of origin. Making sure that that is done would be a better use of the Government’s time than building more prisons.

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[Sadiq Khan]

My right hon. Friend will know that the number of foreign prisoners in our prisons is just a bit above 10,000. That has been the figure for the past four years, and the Government have done nothing to get it down. They would do better to pay attention to getting it down, rather than to getting headlines in the Daily Mail or The Daily Telegraph. That would free up places and lead to a huge improvement.

We broadly welcome the direction of travel on electronic monitoring, subject to clarification on costs and technical developments; the hon. Member for Cambridge (Dr Huppert) raised some of the concerns that we have that need to be addressed. We will closely scrutinise the ability of the Ministry of Justice properly to monitor the private companies awarded the contracts, to ensure that the public get value for money and the Ministry is no longer taken for a ride.

We do not oppose the plans relating to automatic release and recall, and we welcome clause 16, which bans the possession of extreme pornographic images depicting rape. A number of victim groups and experts have called for that change, and the Government and the Justice Secretary should be commended for listening to the evidence.

I turn to the second part of the Bill, on youth justice. It is worth pausing to reflect on the dramatic fall over the past 10 years or so in the number of young people held in custody. The most recent figures show a drop of more than 60%. I pay tribute to the hard work of the Youth Justice Board and youth offending teams up and down the country. I am proud of Labour’s record in setting up the YJB, which led to these falls. I wish the outgoing chair well and the new chair the best of luck in his endeavours. The YJB’s innovative ways of working have delivered enormous economic and social benefits to society, and I for one am delighted that we were successful in keeping it doing its important job, rather than it being abolished two weeks ago, as the Government had wanted.

We have reached a hard core of young offenders in our youth justice system, and that brings a different set of challenges. As has been said, reoffending rates for this hard core remain stubbornly high. The Government’s preferred solution is secure colleges, and the Bill paves the way for their introduction. Ministers have announced only one so far, in Leicestershire. Construction will not start until 2015. There is no clear idea of where the £85 million that it will cost will come from, or what will be cut to find the money. It smacks of another commitment made by this Justice Secretary for which the next Government will be left to pick up the tab. In Committee, we will need to get down to the details, but already a number of groups have expressed concerns about the plans. There will be just one secure college; either it will be a huge college for the whole country—a teenage Titan prison, with all the problems that will entail—or only those in the east midlands will benefit.

There are also concerns about how restraint is planned to be used in the new secure college, and how the college will address the problems underlying offending, such as mental health problems, drug and alcohol addiction—mentioned by my right hon. Friend the Member for Leicester East (Keith Vaz), the Chair of the Select Committee on Home Affairs—and histories of abuse, trauma and violence. It is also unclear, despite the question from my hon. Friend the Member for Stretford and Urmston (Kate Green), what provision is planned for young females. There is a concern, to be frank, that this is a return to the discredited borstal system.

Nor have the Government made clear their intentions for the network of secure children’s homes. Granted, those are expensive, but I have visited them and seen at first hand the range of severe problems that young people there have to deal with. Extreme caution is needed before this group of highly vulnerable people is lumped in with the wider youth justice system.

We will want convincing that forking out £85 million on bricks and mortar is better than spending the money on improving the amount of education and rehabilitative work in the existing secure training centre network. I see that the Chair of the Select Committee on Justice is here; the Justice Committee recently argued for a “fundamental shift” of resources from custody to early intervention with young people at risk of reoffending. It also made the point that most young offenders would not be in custody long enough—the average is 79 days—for the secure college to do any good in improving basic skills and addressing offending behaviour. A number of experts have also raised concerns, which we shall explore in Committee.

The third part of the Bill proposes changes in our courts. On the face of it, efforts to speed up court proceedings and make them more efficient—for example, by ensuring easier and quicker appeals to the Supreme Court, and by having magistrates courts deal with lower-level offenders faster—are to be welcomed, but this should not be to the detriment of proper open justice or due process. The Civil Justice Council, the Magistrates Association and others have expressed concerns that we should explore in Committee. Similarly, no one opposes convicted criminals being made to make amends for their crimes. The Government now wish to tack a charge on to those found guilty towards the cost of their trial. There have been difficulties collecting fines and the victim surcharge from guilty criminals, sometimes as a result of organisational problems, but sometimes because criminals simply do not have enough money. There are between £1.4 billion and £2 billion in uncollected fines, and only this weekend it was reported that £13 million in victim surcharge had failed to be collected by the Government. I am sure that the Justice Secretary did not mean it when he said that that was because they are all dead, or that outsourcing all of this will solve all the problems. We will seek guarantees that this will not be yet another trumpeted announcement that ends in failure down the years as non-payments rack up and are written off.

It is right that the law on jurors and the use of the internet keeps up to date with the march of technology. I, too, am pleased that the Government have listened to the recommendations of the Law Commission in that respect. However, as Members will recall from the high-profile trial of Vicky Pryce, there are problems with juries not understanding their role sufficiently, and we shall explore what steps can be taken to educate and inform the public and jurors about the important civic function of jury service so that it is less of an alien process to them. I welcome proposals to raise the juror age limit to 75.

The fourth part of the Bill deals with changes to judicial review. In a country without a written constitution, we tinker at our peril with important checks and balances such as judicial review without proper thought. We know the Lord Chancellor’s view on judicial review from a piece for the newspaper that he and his SpAds prefer to brief—the Daily Mail. He said that

“judicial review…is not a promotional tool for countless Left-wing campaigners. So that is why we are publishing our proposals for change…Britain cannot afford to allow a culture of Left-wing-dominated, single-issue activism to hold back our country from investing in infrastructure and new sources of energy”—

news, I am sure, to Conservative Back Benchers and local authorities that have been involved in JRs against Heathrow expansion, High Speed 2 and, no doubt in future, wind farms and fracking.

Let me explain the position to the Justice Secretary in plain English without any long legal words or gobbledegook. MPs, individual citizens, community groups, organisations and local authorities are not

“part of a culture of Left-wing dominated”

campaigners when they legitimately ask the judiciary to review decisions made by public authorities, including Ministers.

To be frank, delays in HS2 or Crossrail 2, the lack of houses being built or of big infrastructure are more to do with the incompetence and policies of this Government than with judicial review. It is hardly surprising that people believe that the Justice Secretary’s true intentions are to insulate his Government’s bad decision making from any kind of challenge. The Government have also sought to rein in legal aid and no win, no fee cases; to gag campaign groups with their shoddy Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014; and constantly to attack human rights laws—there is a pattern. These are the tools by which our citizens hold Governments to account, and the Government are weakening them.

[Kate Green]

I am glad that my right hon. Friend makes that point, because the Justice Secretary is quite wrong to suggest that the majority of judicial review cases are about campaigners making campaign points. They are about individuals who have suffered personal injustice at the hands of an over-powerful state, and we ought to maintain that ultimate protection for those individuals, many of whom are disabled, many of whom are vulnerable, and many of whom are poorly educated. Does my right hon. Friend not agree that, whatever the Justice Secretary presents as the effect of these changes, the reality is that it is vulnerable individuals who lose out the most?

[Sadiq Khan]

Absolutely. The concerns are that as a consequence of the changes decisions made by Ministers and other public authorities will be put above the rule of law. Those authorities will almost be free to do as they please, to the ludicrous extent that breaking the law appears to be of no concern to the Justice Secretary.

It is clear the Justice Secretary’s measures are underpinned by a majoritarian view of the world in which democracy is only about elections, and those who win can do as they please in between. I would be more sympathetic if the Conservatives had actually won the last general election. The Justice Secretary’s policies are dangerous. Democracy is more than elections: I am not alone in that view, and neither is my hon. Friend the Member for Stretford and Urmston. Lord Dyson, the Master of the Rolls, said that

“there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review.”

The former Lord Chief Justice, the esteemed Lord Woolf, said:

“In our system, without its written constitution embedded in our law so it can't be changed, judicial review is critical.”

He also said that the Ministry of Justice has shown a

“remarkable lack of concern for the precision of the facts”.

Joe Rukin, co-ordinator of the Stop HS2 campaign—that infamous left-wing dominated campaign group—said:

“The government seem to be making out that they believe any of their infrastructure plans should be above the law and do not realise that it is essential in a democratic society to be able to hold the government to account”.

[Chris Grayling]

It is the case, if I am not mistaken, that HS2 can happen only if the relevant measure is passed in legislative form by both Houses of Parliament. Does the right hon. Gentleman believe that the courts and people outside Parliament should be able to override democratic decision making by the elected House and the House of Lords?

[Sadiq Khan]

That question raises so many concerns about the Justice Secretary’s lack of knowledge that it is really worrying. Citizens should be able to challenge the decisions that are made by Ministers, including him and Labour Ministers. That might mean that the courts find that some Government decisions are wrong. For example, they might find against plans to expand Heathrow with a third runway. We have to accept that decisions made by the Executive should be able to be challenged by the judiciary. He should accept the important concept of the separation of powers. We provide checks and balances for the judiciary, the Executive and the legislature. We are not a country in which the Cabinet can do whatever it likes.

[Philip Davies (Shipley) (Con)]

I am slightly perturbed by what the right hon. Gentleman has said. These are not decisions that my right hon. Friend the Justice Secretary has said the Government would take—he was talking about decisions that Parliament would take. What is essential in a democratic system is that the will of the people exercised through Parliament is sovereign, not judges who have been elected by nobody.

[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.

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[Nick Herbert (Arundel and South Downs) (Con)]

Unlike the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), I welcome many of the sensible provisions in the Bill. These amendments to the operation of the law seem to me to make common sense.

I am not sure whether I understood the Opposition’s point about judicial review. If we accept that there has been a threefold increase in the number of applications for judicial review since 2000, are the Opposition making the case that there is nothing wrong with judicial review procedures or the way in which they are being used, or are they saying that there has been an increase in the number of poor-quality decisions by the Government and other public bodies? If the latter, the Opposition would be conceding that that happened largely on their watch. If we accept that there has been a very large rise, surely it makes sense to make a number of careful changes that will ensure that the system operates as intended, which is not to provide a vehicle for those who simply object to a decision and wish to test it in an alternative body—in this case, a court—but to ensure that decisions are made properly and subjected to the right and appropriate judicial scrutiny.

[Sadiq Khan]

I am surprised by the right hon. Gentleman’s comments, because he is usually thorough in his research. He should be aware that if we exclude immigration from judicial review, we will see that the situation has been static since the 1990s. A Bill passed 18 months ago by this Government moved immigration from judicial review to the tribunal system, so the problem they are seeking to address was dealt with nearly two years ago.

[Nick Herbert]

The right hon. Gentleman seems to be confirming that he does not believe that there is a problem, but that view is not shared on the Government Benches. In our view, the increase in the extent of judicial review does not just impose a cost—which is a serious matter in itself—but also means, dangerously, that decisions by the courts are increasingly substituting for decisions that should be made by Ministers, which was not the original purpose or intention of judicial review.

In his closing remarks, the right hon. Gentleman railed similarly against previous measures introduced by this Government to deal with legal aid and said there had been restrictions on access to justice. The Opposition’s problem is that they are very quick to criticise every proposal in the area of justice and criminal justice that is designed to ensure a sensible use of public funds and necessary savings. They are not able to explain how they would deal with the very real budgetary challenges that confront every Government Department, not least the Ministry of Justice, which has been required to make substantial savings. If, along the way, the Opposition oppose every measure and criticise sensible provisions such as that under discussion without saying how they would make the savings required, they simply have a credibility problem.

I welcome the Government’s proposals to deal with the problem of automatic early release and, in particular, the scale of the Justice Secretary’s ambition to go further in doing so. There is no doubt that automatic early release undermines public confidence in sentencing. When victims in particular, but also members of the public more widely, hear a sentence handed down in a court but later learn that offenders are, without question, automatically released much earlier—halfway, or earlier in the case of home detention curfew, which is described as early release—it undermines confidence in the system.

It would be much better to move to a system of honesty in sentencing, in which the sentence handed down bears a proper relation to the one actually served, whether that is a system of minimum and maximum sentences, as proposed by the Conservative party in its last manifesto, or sensible measures to curtail automatic early release of the kind that my right hon. Friend the Justice Secretary has just introduced for more serious offences. We should not accept the principle of automatic early release; it would be much better if release were earned and bore some relation to the prisoner’s conduct, progress in rehabilitation and suitability for release.

Even Members of the House of Commons find it difficult to understand or accept the early release of offenders. Many of us noted with surprise that when the courts handed down to a former Member a determinate sentence of eight months, we had no sooner said the words “Liberal Democrat” than that offender was released early, in that case to serve a period on home detention curfew and, subsequently, to enjoy a new career writing articles for The Guardian. All that undermines confidence in the criminal justice system.

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[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.

--- Later in debate ---

[Mr Andy Slaughter (Hammersmith) (Lab)]

It is curious that a Government who did not think that they needed a Bill to dismantle criminal legal aid or to privatise the probation service should decide that they do need one to encourage courts to report wasted costs orders to the Bar Standards Board. It is also curious that a Lord Chancellor who is reluctant to debate the restriction of access to justice, or risks to public safety, can find plenty of parliamentary time in which to discuss age limits for jurors.

The Government have a curious sense of priorities; but the clue is in the phrase “find time”. We heard earlier that the Lord Chancellor was the only Cabinet Minister to volunteer to conjure up a Bill to fill the yawning void that is the last 15 months of the current Parliament—a carry-over Bill intended to mark time while the coalition parties manufacture disagreements to keep their own core voters happy. His reward—and I am pleased to see him in his place—was to miss the Cabinet’s day out in Aberdeen. There is no justice for the Justice Secretary.

However, I do not want to denigrate the Bill; I merely wish to set it in context. Although there are parts of it that we strongly oppose, much of it is unobjectionable, and some of it is even laudable. It makes sensible administrative changes, and introduces new offences that clarify or reinforce important parts of the law such as contempt, or address failings in the Government’s own legislation or practice. We are not going to find reasons to oppose such measures and, on balance, we will not oppose the Bill tonight, in the hope that improvements can be made before Third Reading.

I can do nothing but praise the quality of the debate today. We are fortunate to have heard from some of the most experienced and thoughtful Members on both sides, and I hope that the Minister will take on board their observations not only when he responds to the debate tonight but when he reviews the Bill in Committee. We have heard former Justice Ministers, including the hon. Member for Huntingdon (Mr Djanogly) and the right hon. Member for Arundel and South Downs (Nick Herbert), and from Select Committee Chairs including my right hon. Friend the Member for Leicester East (Keith Vaz) and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). We have also heard from eminent practitioners such as my hon. Friend the Member for Kingston upon Hull East (Karl Turner) and the hon. Members for Dewsbury (Simon Reevell) and for Bromley and Chislehurst (Robert Neill).

I hope, however, that none of those Members will be offended if I say that the most perceptive comments often came from those who show a lay interest in these matters. The hon. Member for Dartford (Gareth Johnson) talked about exercising caution over the use of cautions and about education on the secure estate, and I agreed with much that my neighbour, the hon. Member for Ealing Central and Acton (Angie Bray), said in her tour d’horizon of the Bill. I was slightly confused, however, by the contributions of the hon. Members for Cambridge (Dr Huppert) and for Shipley (Philip Davies). Both seemed to love the Bill, but one of them thought it was about restorative justice and reducing the prison population by 30,000 while the other thought it was about punishment and increasing the prison population by that number.

[Sadiq Khan]

They can’t both be right.

[Mr Slaughter]

Indeed, but the Lord Chancellor has at least managed to make both of them happy, and he should be praised for that, if for nothing else.

I want to make specific mention of the contributions from my hon. Friend the Member for Hayes and Harlington (John McDonnell) and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who made robust defences of judicial review and of open justice. They correctly echoed the view expressed in the Campaign to Protect Rural England’s briefing that judicial review is

“used rarely by community groups in relation to planning decisions because it is costly and a significant and daunting undertaking.”

No one would imagine that, from what the Government have said today.

I shall take my cue from my hon. Friend the Member for Hayes and Harlington and the right hon. Member for Dwyfor Meirionnydd in dealing first with the most contentious and objectionable part of the Bill—part 4, which covers judicial review. What is it about this Lord Chancellor and judicial review that the mention of it makes him behave in an irrational and unreasonable way? He has taken to the columns of the Daily Mail to denounce one of our most important constitutional safeguards as

“a promotional tool for countless Left-wing campaigners.”

It is unclear whether those left-wing campaigners include the Countryside Alliance, the Daily Mail, The Daily Telegraph, UKIP’s Stuart Wheeler and numerous Conservative councils, all of whom have initiated judicial reviews in recent times. However, the senior judiciary’s response to the Lord Chancellor’s consultation shot that particular fox when it stated that it had seen no

“evidence of inappropriate use of judicial review as a campaigning tool, and it is not the experience of the senior judiciary that this is a common problem.”

The Lord Chancellor has already taken bites out of judicial review by imposing additional fees and limiting the time for bringing a claim, in some cases to six weeks. He is also going to restrict the use of legal aid by statutory instrument, rather than through primary legislation. He would wish to hobble applicants more by restricting the recovery of costs until beyond the permission stage and allowing defendants to intervene at that stage with the prospect of recovering their costs. The Bill contains a variety of additional ways to discourage judicial review by increasing applicants’ costs or putting them at risk of paying defendants’ costs. Protective costs orders will not be abolished, but they will be available only in narrow circumstances and once permission is granted.

The worst aspects are in clauses 50 and 53, attacking both the raison d’être of judicial review to correct Executive error in decision making and the ability of third parties to intervene in the public interest and to assist the court. Already heavily criticised, the new test in clause 50 refuses permission where it is “highly likely” the outcome for the applicant

“would not have been substantially different if the conduct complained of had not occurred”.

This confuses unlawfulness with remedy. It will encourage bad decision making and it is likely to lead to a full trial of the issues at permission stage. Lord Pannick, in an article that has already been quoted today, has said that the clause will give the Government a

“get out of jail free card”,

and allow public bodies to

“avoid a hearing and judgment on the legality of their conduct.”

Under clause 53, third parties—often non-governmental organisations, charities and human rights organisations—that intervene in judicial reviews to clarify issues that often assist the court will now be severely discouraged from doing so by cost penalties. Yet Lady Justice Hale of the Supreme Court has said that

“interventions are enormously helpful…The most frequent are NGOs such as Liberty and Justice, whose commitment is usually to a principle rather than a person. They usually supply arguments and authorities, rather than factual information, which the parties may not have supplied.”

In aggregate, these proposals mean that only applicants of substantial means will be able to bring a claim or risk the costs of losing it. In a country without a written constitution, judicial review is one important way of holding the Executive to account. This Government want to insulate their bad decision making from legal challenge and place themselves outside the rule of law. They are strengthening Executive power and weakening a critical check on the power of the state. This Lord Chancellor, for misguided party political motives and as part of a sustained attack on access to justice, is undermining our civil liberties, and these changes should be against everything the Liberal Democrats stand for. Under this Government, seeking justice is getting harder and these proposals show them on the side of their corporate friends, not of individual citizens and communities. Politicians in power might find judicial review an awkward irritant, but that is precisely what it is intended to be. Combined with the cuts to legal aid, limitations on no win, no fee cases, and threats to the Human Rights Act and European convention, this proposal amounts to a sustained attack on the rights of individual citizens to hold those in power to account. As the President of the Supreme Court, Lord Neuberger puts it,

“one must be very careful about any proposals whose aim is to cut down the right to judicial review”.

He has also said:

“The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive.”

We have serious concerns about other parts of the Bill. As they stand, the plans for secure colleges may prove damaging to thousands of young offenders in our criminal justice system. The Bill leaves a question mark over the future of secure children’s homes, which cater for the most vulnerable young people. Such homes typically house small numbers of children, provide intensive support and are staffed by highly qualified specialists in social care. The homes have good educational outcomes and are recognised as the preferred model of youth custody, but they look set to lose out to the Lord Chancellor’s new and untested pet project. It is untested according to the Government’s own impact assessment, but still £85 million is needed to build just one secure college.

The Justice Committee pointed out in its report last March that the average time in youth custody is only 79 days, so most young offenders would not be in a college long enough to improve their basic skills. What levels of training or qualification would the college staff have? Why will college custody officers be empowered to use “reasonable force” for the maintenance of “good order and discipline”? That may well be unlawful under the European convention on human rights, according to a Court of Appeal 2008 ruling and the UN Committee on the Rights of the Child, which stated in 2007:

“Restraint or force can be used only when the child poses an imminent threat of injury to him or herself or others, and only when all other means of control have been exhausted. The use of restraint or force, including physical, mechanical and medical restraints, should be under close and direct control of a medical and/or psychological professional. It must never be used as a means of punishment.”

As regards part 3 of the Bill, we support the use of single justices, given that their jurisdiction will apply only to summary, non-imprisonable offences where an adult defendant pleads guilty. However, we object strongly to taking these cases out of the courtroom and into offices away from public view. Such an approach damages the principle of British justice that cases are heard and the results made known in public. This Government are too fond of secret courts, and even in minor cases the principle of open justice should be rarely departed from. We agree in principle that convicted criminals could contribute to the costs of trial, but the substantial amount of uncollected fines from criminals already totals more than £1 billion and it is likely that this proposal will just add to the total of uncollected moneys from criminals. We have no objection in principle to leapfrog appeals, for example, on issues of national importance, though they are most likely to be used by government trying to hurry the process up. The danger is that this simply overloads the Supreme Court and that the issues it has to deal with are insufficiently refined by earlier hearings.

It is a good idea to update the jury room process and the rules on reporting cases to accommodate the social media age. The Attorney-General is to be commended for taking a personal interest in the limitations on reporting and in discouraging jurors from using social media to research or publicise details of trials. However, the Government fail to provide any support to juries in explaining their roles and remit as part of any new offences, and it is not clear whether they have considered the full implications of the numbers of people using social media and the variety of methods available. We have no objection to raising the age of jury service to 75.

There are two glaring problems with part 1 of the Bill. It does not do what it says on the tin, which is to protect the public adequately from violent and dangerous offenders, but it does incur costs and prison resources that the Government do not have in place. I fear that the hon. Member for Shipley may have been slightly taken in by the rhetoric rather the actuality of what is in part 1. The changes to sentences for the most serious and violent criminals are a poor substitute for indeterminate sentences for public protection, which this Government abolished in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—[Interruption.] I do like to mention that, because it is the one thing that we both agree on.