Criminal Justice and Courts Bill

Sarah Champion Excerpts

Tuesday 17th June 2014 Commons Chamber

In Committee I proposed an amendment to remove clause 58, as that seemed the cleanest and simplest way to keep to the status quo and retain judges’ ability to intervene. Since then, I have accepted that there may be some abusive cases where the current system does not quite work, and although judges still have such power, I accept the argument that in those rare cases something could be changed.

[Sarah Champion (Rotherham) (Lab)]

I appreciate the hon. Gentleman letting me make an intervention and therefore be an intervener. He says there may be rare cases of frivolous or exploitative interventions, yet none of the witnesses before the Committee could give examples of when they were aware of that.

[Dr Huppert]

The hon. Lady is right and I will not charge her for my costs in responding to her intervention—I am sure the Minister will not want to either. She is right, but my challenge was to the Minister to identify such cases. If there are any cases—I imagine that there are, because not being a lawyer I know that lawyers are creative at finding ways around the rules—we should try to fix that. However, I think such cases are the minority.

I withdrew my amendment in Committee because I wanted to see what the Minister could do, and he agreed to consider whether there was a way to improve the clause before Report. I had high hopes that the Minister—who comes from the wonderful county of Cambridgeshire—would have been able, with all the resources of the Ministry of Justice, to come up with something that would capture what we do. We should make it clear that we are clamping down on abusive cases, and say, “Whether or not they are happening, they can no longer happen”, and leave everything else alone. I hoped that in just under three months since the Committee proceedings the Minister might have achieved that, but it has not happened. I am disappointed, because it does not seem to be too hard.

I have done my best to provide suggestions, and I have met the Minister and sent in a number of possible ways forward. Today I wish to debate one of those possibilities, to see whether I can get a formal response from the Minister and whether he will look at it as a way forward and ensure we address the issue, even if that has to be in the other place. I turned to the Supreme Court rules as a possible approach. The Government seem happy with those rules on interveners and are not proposing to change them in any way. The rules would certainly be accepted by many legal professionals, given that they seem to work for the Supreme Court—I have heard no concerns. Article 46(3) of the Supreme Court rules state:

“Orders for costs will not normally be made either in favour of or against interveners but such orders may be made if the Court considers it just to do (in particular if an intervener has in substance acted as the sole or principal…appellant or respondent).”

That seems to capture what the Minister says he was trying to achieve, and I think we would all be relatively happy with that. There would not normally be such measures, but where somebody has acted as though they should be the person taking the case, it would be covered.

That led me to table amendment 51, which tries to capture that concept—it may not have caught it absolutely and I would be happy to hear the details, but it strikes me as a way forward. It provides a way to deal with the problems the Minister is concerned about, without stifling the interventions that I think all in this House—from the Joint Committee to many Members from all parties who I have spoken to—would want to protect.

The clause is not acceptable as it stands, and I do not think it will or could become law as currently drafted because of the problems it would cause. I hope the Minister will fix this issue promptly at an early stage in the other place, and that he will consider amendment 51 as a possible way forward.

[Sarah Champion]

I wish to speak broadly to amendments 23 to 32 to clause 55 in part 4 of the Bill, and to the “highly likely” test on judicial review. I also wish to share my thoughts on the specific proposals for judicial review, based on the recent experiences of the Liverpool City and South Yorkshire regions, which directly affects my constituents. As a precursor, I should say that I accept that the number of judicial review cases has risen in recent years, but I am not certain that the proposed revision of judicial review would give a fair outcome to those parties seeking review, or tackle the reasons why instances of judicial review have increased.

In particular, I wish to address the idea that the likely outcome would be assessed as part of the process leading to the granting of a judicial review, rather than the legality of the process leading to the said outcome. On 7 February the South Yorkshire and Liverpool regions won a joint High Court action that ruled that cuts in European funding were unlawful. Lawyers bringing that action argued that the significant reduction in funding of 65% was disproportionate compared with other areas.

Evidence presented to the Court at the time showed that Ministers allocated €150 million less to Liverpool City region, and almost €90 million less to South Yorkshire, than they had estimated their share to be. Obviously, that could not be fair. It meant that over the next seven years, funding to Liverpool City region worked out at €147 per head, compared with €380 in the previous funding round from 2007 to 2013. A judicial review case was filed in September 2013, and the process, rather than the outcome, was deemed out of order. The judge requested the High Court to order the Government to adjust their allocation of funding from Europe because of the flawed calculation method used to distribute €10 billion from the European regional development and European social funds. Had that decision not been challenged, the funding that would have been allocated to Liverpool City region and South Yorkshire would have been spread across other regions.

Under the judicial review process as it stands, South Yorkshire and Liverpool were right to file for judicial review, as they believed that the process by which the decision was made was flawed. Logic would suggest that if the process behind the decision was flawed, the likelihood is that the decision itself would be flawed. Unsurprisingly, the judge ordered the Government to reconsider the funding arrangement.

The difficulty is that we will never know what would have happened if the Government’s proposals on judicial review had been in place at the time of that specific case. I suspect that the Government, already having a series of funding arrangements in mind, would have granted the same levels of funding to South Yorkshire and Liverpool, regardless of the process under which the funding allocation was decided. If, at the application stage, it was deemed that South Yorkshire and Liverpool would have been likely to receive the same amount of funding, their application would have been taken no further. To be clear: in South Yorkshire and Liverpool, I suspect that the likely outcome would have been assessed as the same in this case, regardless of the flawed process. Therefore, at the beginning of this process, the case may have been unable to proceed—a case in which 3.6 million people living in those regions would have not been able to access €10 billion-worth of funding.

Such considerations—those predictions of likely outcomes—will now become law under the Government’s plans. I have no doubt that in some areas judicial reviews may be seen as wasteful, but at the same time I strongly believe that the case I have referred to would not have made it to court under the new proposals.

Was the process flawed? Yes. Is the outcome likely to be similar? Perhaps, yes. Does that mean that the people of the Liverpool City and South Yorkshire regions should not have been afforded the opportunity to challenge? No. On the slim chance that the outcome would change for them, taking the case to the courts would have seen the two regions immeasurably better off. It is only right that the people of those regions be allowed to challenge that decision.

A faulty process often leads to a flawed decision, and even if the outcome might be the same, we need to consider those rare cases in which the outcome is predicted to stay the same so judicial review is not granted, but the outcome is then prevented from being different. In their current form, these plans would prevent case law from forming based on the one in 100 cases in which the outcome might have been predicted to stay the same but in fact did not stay the same. We are taking the power of the formation of case law away from judges, and we are instead putting the power of decision making into the hands of people less experienced in making such decisions.

I implore the Minister to look at the case of the Liverpool City and South Yorkshire regions as an example of why judicial review should be granted not on the basis of the likely outcome, but on the basis of the process of decision-making. We must allow flawed processes to be challenged, so that for the cases in which an outcome is different, the people involved are granted that outcome, rather than having it snatched away from them before it goes to court.

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

I thank the Minister for the constructive way in which he has engaged with me and others on the planning amendments. I welcome the stance that the Government have taken on these matters and I know that welcome is shared by the legal profession and planning professionals. The Minister is right to say that these are not necessarily the most headline catching of measures in the Bill, but they are important and valuable because they are consistent with the approach that the Government have adopted—in this instance, also supported by the Opposition, I am glad to say—towards the rationalisation of the planning process and the speeding up of the process of development.

These measures are significant, because a successful and smooth planning process, including the judicial element of potential challenges, is critical, not only to the legal process but to environmental protection and the economy. One of the problems that has been encountered in the past is that some of the duplications and delays in the system were a disincentive to bringing forward the sort of development that we all want to see. This is an opportunity to rationalise the process, and I am glad that the Government have taken it.

I also thank the hon. Member for Hammersmith (Mr Slaughter) for his approach in Committee, as well as the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Grantham and Stamford (Nick Boles). I also thank officials in the Ministry of Justice and the Department for Communities and Local Government—some of whom are in earshot—who took my Lazarus-like reappearance on the scene of planning law in good grace and engaged most constructively with me. I also want to thank Richard Harwood QC and other members of the planning and environment Bar who did a lot of work in the drafting of the detail of the amendments.

My hon. Friend the Minister has given me the bulk of the cherry that I asked for in Committee, but the Government have not been able to make progress on a couple of issues. I invite him to be mindful of the need to keep a careful eye on the operation of the planning court, because some matters may be picked up through the civil procedure rules and may provide a constructive means of taking forward further reforms.

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[Sarah Champion]

Does the hon. Gentleman agree that good and honourable local authority people sometimes get it wrong and that having relatively straightforward access to judicial review is a good thing?

[Robert Neill]

I am not sure whether you would agree, Mr Speaker. I take the hon. Lady’s point, but I do not think that she follows it through logically. It comes back to this: the basic tests of Wednesbury reasonableness remain. The opportunity for judicial review remains and putting some balance or check in the process to say, “Before you intervene, you have to consider the costs” is not unreasonable.

Any decision maker can, of course, get things wrong, which is why we have judicial review. That remains. But equally, it is not unreasonable to say that when a challenge is brought, those who litigate ought to bear in mind the costs of their doing so. I understand the hon. Lady’s points, which she made eloquently in Committee. I have some sympathy with her, but the Bill does not do what she believes it does. I do not believe it undermines the scope for meritorious judicial review. It is not in the interests of anyone that the courts be clogged up with unmeritorious judicial review cases. There is no doubt that there have been a number of those.

On local government, let me suggest two instances of such cases. It is suggested that those who bring judicial review are often the aggrieved small people. That is not always so. When I was a Minister at the Department for Communities and Local Government, my right hon. Friend the Secretary of State and I suffered at the hands of CALA Homes in a very famous judicial review decision when we were attempting to carry out the will of the House and, clearly, of the electorate and remove the regional spatial strategies, which were discredited. A judicial review was brought against the Secretary of State and against the democratically elected planning authority, Winchester city council, which had gone through the process of standing up for its residents who did not wish to have a particular piece of land developed. What happened was that judicial review was used by, in effect, a predatory developer. There are many cases around the country where it is the big battalions who will use judicial review against elected local authorities. Redressing the balance is fair in that instance, too.

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[Ann Coffey (Stockport) (Lab)]

I welcome the additional support for victims and their families in the Bill, but I think it would have been improved if my new clauses 8 and 9 had been accepted.

I congratulate the National Society for the Prevention of Cruelty to Children on last week’s launch of its “Order in Court” campaign to give more support to vulnerable young witnesses in the criminal justice system. I read in Saturday’s edition of The Times that there is to be a rethink about how cross-examination of witnesses in sex abuse cases is conducted in court, to try to deal with the aggressive, hostile and prolonged questioning of witnesses, which can be very traumatic.

I recently spoke to a witness in one of the Rochdale child sexual exploitation trials, as part of the report on CSE that I am preparing for Tony Lloyd, the police and crime commissioner for Greater Manchester. She told me that one of the worst experiences of her life was the treatment she underwent in court. She said:

“There is not a word to describe how bad it was. I have never ever experienced anything like that in my life and I never want to experience anything like it again. It was like one attack after another. One of the barristers was not even asking me questions. He was just shouting at me and the judge kept having to tell him to stop shouting and move on, and he kept asking questions that he was not supposed to ask. When I could not remember things they made me feel really bad.”

I welcome the fact that in the past year, 600 judges have been on a special training programme on dealing with vulnerable witnesses so that they can enforce appropriate behaviour by advocates. I think that means they can stop them from bullying witnesses.

[Sarah Champion]

I, too, am sad that my hon. Friend did not get an opportunity to debate her new clauses, because they were very powerful. She has cited an example of one girl. I have spoken to girls and boys across the country, and the expression that keeps coming up is that they find going to court another form of abuse. A number of them withdraw; the case closes because they cannot stand the trauma.

[Ann Coffey]

I thank my hon. Friend for her support.

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[Sarah Champion]

I want to put on record my abhorrence at the idea of the giant children’s prison. Not one of the witnesses we heard from spoke favourably about it. I know that it is being packaged as an educational establishment, but there is nothing in the Bill to tell us that there will be qualified teachers and social workers or anything about the level of education that the children will be offered.

Particularly worrisome for me is that, given that only 4% of the young people and children in the prison population are between the ages of 12 and 15, the vast majority of the young people will be much older than that, and only 4% will be girls—out of 320 young people, about 12 will be girls. Those girls might have committed crimes, but there is an awful lot of evidence that when girls commit crimes, it is normally because they are coerced into it, or they are acting up because of some gross abuse that has already happened to them and it tends to be a cry for help. I find it deeply abhorrent to put them in a very testosterone-led environment, and worry for their psychological futures.

I also find the fact that there was no commitment for there to be qualified teachers extremely worrying, and it confirms to me that the college is just a holding borstal, rather than an educational establishment as it is described. I also found it troublesome that there is a lot of mention of restraint in the Bill, and some of the techniques being used are not legal according to the UN—that should not be happening, particularly to children. Again, I make a plea to the Secretary of State to please consider that matter.

[Chris Grayling]

Can the hon. Lady draw my attention to where in the Bill the word “restraint” appears?

[Sarah Champion]

Standing here now, no I cannot, but I will be happy to provide that evidence. If the Secretary of States gives me a couple of minutes I could probably dig it out of the Bill.

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[Yasmin Qureshi]

I entirely agree and can give an example to the House of a case I had when I was a prosecutor. A young man, aged about 14, was in a care home. He set light to a curtain but realised quickly what he had done and tried to put out the flames. He did, and nobody was injured. People might think that he should have been put into prison and have the key thrown away. But let me tell the House the circumstances of that young man’s life. On the day in question, the young boy had been in court to give evidence against his mother’s boyfriend, who had sexually abused his younger sister. When he arrived at court to give evidence against his mother’s boyfriend, immediately upon seeing him she punched him in the stomach. He burst out crying and ran away from the court to the care home where he did this, before realising what he had done. That is the sort of thing we do not see in the headlines. The headlines would say, “14-year-old boy let off by the courts” if he received a conditional discharge or was not dealt with severely. Young people’s circumstances cannot be mentioned in public so people do not realise that a lot more can be happening in their lives than they think.

We know that most young people who have committed crimes have been abused themselves, either sexually or physically, or have been neglected or had cruel treatment. They are often psychologically damaged and the last thing they need is to go to a borstal-type school. What they need is structure in their lives and someone to care for them who will make life better for them.

[Sarah Champion]

My hon. Friend is making good points, particularly about the secure colleges and why young people need to be in a supportive environment. I want to apologise to the Secretary of State. I used the word “restraint” but he was right; “reasonable force” is the correct terminology. However, I still do not think that “reasonable force” is appropriate in a place that is meant to be nurturing young people.

[Yasmin Qureshi]

You will be pleased to know, Madam Deputy Speaker, that I shall now move to other aspects of the Bill, as I have made my point about secure colleges.

I want to refer to judicial review and I stand by the comments that I made earlier. The argument given against judicial review is that it is costly and that too many people are vexatiously seeking judicial review. As I said, one cannot just go to the court and say, “Can I have judicial review?” One has to seek leave to apply for judicial review and that application is assessed by a judge of the High Court, who are meant to be the ablest legal minds in the country. I know that they will not say to an applicant, “Yes, you can have it and we will use the court’s time.” They will not. They will review the case and look at the papers. Then, if they think there is merit in the application, they will take it one step further, look at the case and set it aside for a hearing. The Government seem to think that there are many so-called frivolous or vexatious judicial review applications, but many of them would be sloughed away by the internal judicial process in any event. Very few cases actually get to judicial review and—