EU Council June 2014


5.36 pm

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con): My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement on last week’s European Council.

Before turning to the appointment of the next Commission President, let me briefly report back on two other points. First, the Council actually began in Ypres with a moving ceremony at the Menin Gate to mark the 100th anniversary of the gunshots in Sarajevo which led to the First World War. It is right that we should take special steps to commemorate the centenary of this conflict and remember the extraordinary sacrifice of a generation who gave their lives for our freedom. The Government are determined to ensure that Britain has fitting national commemorations, including the reopening of the newly refurbished Imperial War Museum next month.

Secondly, the Council signed association agreements with Georgia, Moldova and Ukraine. These reflect our commitment to supporting these countries as they undertake difficult reforms that will strengthen their economies, bolster their democracies and improve the stability of the whole continent. President Poroshenko joined the Council to discuss the immediate situation in Ukraine. The Council welcomed his peace plan and the extension of the ceasefire until this evening. The onus is now on Russia to respond positively by pressing

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the separatists to respect a genuine ceasefire, to release hostages and return occupied border posts to the Ukrainian authorities. The Council agreed that if we do not see concrete progress very soon, we remain willing to impose further sanctions on Russia, which would not necessarily require a further meeting of the Council. But the Council will return to this issue at its next meeting, which has now been arranged for 16 July.

Turning to the appointment of the next Commission President, I firmly believe that it should be for the European Council—the elected heads of national Governments—to propose the President of the European Commission. It should not be for the European Parliament to try and dictate that choice to the Council. That is a point of principle on which I was not prepared to budge. In taking this position I welcome the support of the Leader of the Opposition, as well as the Deputy Prime Minister, in opposing the imposition of Jean-Claude Juncker on the Council. I believe that the Council could have found a candidate who commanded the support of every member state. That has been the practice on every previous occasion and I think it was a mistake to abandon this approach this time.

There is of course a reason why no veto is available when it comes to this decision. It is because the last Government signed the Nice treaty, which gave up our veto over the nomination of the Commission President, as well as the Lisbon treaty, which gave the Parliament stronger rights to elect the Commission President. So once it was clear that the European Council was determined to proceed, I insisted that the Council took a formal vote—something that does not usually happen. Facing the prospect of being outvoted, some might have swallowed their misgivings and gone with the flow, but I believe it was important to push the principle and our deep misgivings about this issue right to the end. If the European Council was going to let the European Parliament choose the next President of the Commission in this way, I at least wanted to put Britain’s opposition to this decision firmly on the record.

I believe this was a bad day for Europe because the decision of the Council risks undermining the position of national Governments and undermining the power of national Parliaments by handing further power to the European Parliament. So while the nomination has been decided and must be accepted, it is important that the Council at least agreed to review and reconsider how to handle the appointment of the next Commission President, the next time this happens, and that that is set out in the Council conclusions.

Turning to the future, we must work with the new Commission President, as we always do, to secure our national interest. I spoke to him last night and he repeated his commitment in his manifesto to address British concerns about the EU. This whole process only underlines my conviction that Europe needs to change. Some modest progress was made in arguing for reform at this Council. The Council conclusions make absolutely clear that the focus of the Commission’s mandate for the next five years must be on building stronger economies and creating jobs, exactly as agreed with the leaders of Sweden, Germany and the Netherlands at the Harpsund summit earlier this month. The Council

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underlined the need to address concerns about immigration arising from misuse of, or fraudulent claims on, the right of freedom of movement. We agreed that national Parliaments must have a stronger role and that the EU should act only where it makes a real difference. We broke new ground with the Council conclusions stating explicitly that “ever closer union” must allow,

“for different paths of integration for different countries”,

and, crucially, respect the wishes of those such as Britain that do not want further integration. For the first time, all my fellow 27 Heads of Government have agreed explicitly, in the Council conclusions, that they need to address Britain’s concerns about the European Union. That has not been said before. So while Europe has taken a big step backwards in respect of the nomination of the Commission President, we did secure some small steps forward for Britain in its relationship with the EU.

Last week’s outcome will make renegotiation of Britain’s relationship with the European Union harder and it certainly makes the stakes higher. There will always be huge challenges in this long campaign to reform the European Union but, with determination, I believe we can deliver. We cut the EU budget. We got Britain out of the bailout schemes. We have achieved a fundamental reform of the disastrous common fisheries policy and made a start on cutting EU red tape. We are making real progress on the single market and on the free trade deals that are vital for new growth and jobs in Britain. My colleagues on the European Council know that Britain wants and needs reform—and that Britain sticks to its position.

In the European elections, people cried out for change across the continent. They are intensely frustrated and deserve a voice. Britain will be the voice of those people. We will always stand up for our principles, we will always defend our national interest and we will always fight with all we have to reform the EU over the next few years. And at the end of 2017, it will not be me or this Parliament, or Brussels, that decides Britain’s future in the European Union. It will be the British people. I commend this Statement to the House”.

My Lords, that concludes the Statement.

5.44 pm

Baroness Royall of Blaisdon (Lab): My Lords, I am grateful to the noble Lord the Leader of the House for repeating the Statement made by the Prime Minister in the House of Commons. First, I associate these Benches with what the Statement says about the importance of commemorating the centenary of the First World War and the sacrifice of a generation who gave their lives for our freedom. I also welcome the references to the association agreements signed with Georgia, Moldova and Ukraine.

I must congratulate the Government on their chutzpah. It is an extraordinary feat to claim that a 26-2 defeat and isolation is both a triumph and a strength. The results might have pleased those in the Conservative Party who favour a Brexit but they were greeted with dismay by business, trade unionists and all those who understand that the future success of our country and our place in the world depend on being part of a

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reformed European Union. The Prime Minister suggested that by pushing the Council to vote on Friday, he was defending a deeply held principle. I suggest that he was merely trying to defend the reputation of his party and maintain its unity.

The Prime Minister ended up with the candidate who he said would be a disaster for Britain but it could have been so different. A few weeks ago, we had a European Council divided about the presidency of the Commission; last week, we ended up with a European Council united against the Prime Minister. Personality politics might work well in the popular press or among the populists who are peddling fear in our country but they patently do not work among European leaders. They were the ones who might have been won round by discussion and diplomacy, rather than shouting and foot stamping. I understand that at the start of the process Chancellor Merkel said that the agenda of the next European Commission “can be handled by” Juncker,

“but also by many others … At the end, there will be a fairly broad tableau of names on the table”.

I would be grateful if the Leader could explain how the Government think that we reached a situation in which 26 European leaders coalesced around one name.

Personal attacks and threats followed by splendid isolation are a testament to weakness and a lack of tactics rather than strength, while insults such as the one from the Health Secretary, who called the other European leaders cowards, are simply rude. As Chancellor Merkel said in Sweden:

“Threats are not part and parcel of”,

the European spirit and,

“this is not part of the way in which we usually proceed”.

It was not too late to rethink tactics and tone at that stage, but no efforts to change were made. Does the noble Lord agree that leaving the EPP Group nine years ago and the very recent decision by the European conservatives to invite the German AfD, a right-wing opponent of Chancellor Merkel’s CDU, to join their group in the European Parliament were tactics for short-term political gain rather than being in the interests of either his party or our country?

This morning, I had wide-ranging discussions with members of the governing party in Italy and over the weekend I spoke to other European colleagues. It is clear that reform of the European Union is needed and desired by our partners. The Prime Minister suggests that it is only his conviction that Europe needs to change. I assure noble Lords that that conviction is widely shared and has been reinforced throughout the European Union as a consequence of the results of the EU elections. My party also wants reform but the difference between us and the Prime Minister is that we want it for the sake of our nation, while his major preoccupation is to heal the divisions within his party.

I fear that the Prime Minister is trying to appease those in his party who want to leave the EU. They cheered his lack of support because they do not want reform; they just want exit and real isolation. Mr Cameron’s erstwhile friend, the Polish Foreign Minister, was undoubtedly speaking for many when he said in relation to the Prime Minister and his Back-Benchers:

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“He is not interested. He does not get it … his whole strategy of feeding them scraps in order to satisfy them is … turning against him …. he ceded the field to those that are now embarrassing him”.

The threat of exit is clearly real but I wonder whether the Leader believes that this somehow increases our influence in Europe. Do guns to the head represent a real strategy that will deliver the reforms which we all desire?

Our membership of the EU is important for jobs and business, as well as strategic action on everything from climate change to terrorism. Yes, we need to ensure reform of the budget, of transitional controls for immigration and of benefits. I am sure that working together with our partners we can secure reforms. Is the Government’s real problem not the fact that there is a gap between what the Conservative’s Brexit faction—or perhaps I should say the Conservative majority—is demanding and what sensible European reform amounts to?

Reform is possible through constructive discussion, but those discussions need to take place in the Council and at all levels in the European Commission, not just within the college. I would be grateful if the Leader could tell the House what plans there are to ensure that we have more Brits working at senior level in the Commission at this crucial time and also at more junior levels, who will feed through to higher levels in due course.

Reforms require successful negotiation, and I fear that the Prime Minister’s negotiating skills have been proved to be sorely lacking and that his strategy is in tatters. The gulf between the demands of those in the noble Lord’s party who want to leave the European Union and what the Prime Minister can negotiate grows ever wider. As the gulf widens, so the drift towards exit will loom larger. That would be disastrous for the future prosperity of our country.

5.50 pm

Lord Hill of Oareford: I am grateful for and agree with what the noble Baroness said about the commemoration of the Great War and the extremely serious and growing problems in Ukraine. Notwithstanding everything she said subsequently about European policy more generally, I think we are as one in wanting to find a way forward and to handle that situation as sensibly as possible.

On her main point about the European Council and the outcome for the United Kingdom, the Prime Minister has not pretended, and I have not pretended for one moment, that the appointment of Mr Juncker was what the Prime Minister sought. However, I do not accept the way in which the noble Baroness characterised the Prime Minister’s policy towards the European Union, its future and the coming negotiations. First, I do not accept her characterisation of the situation when she said that the Prime Minister’s negotiations over the past four years in Europe had been unsuccessful. It was Mr Cameron who managed, for the first time, to secure a reduction in the EU budget—something that everyone, not least some members of the party opposite, predicted was not possible to pull off. That kind of negotiation cannot be successfully achieved unless one has alliances and influence and is able to negotiate successfully within the European Union.

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I agree with the noble Baroness about the importance of wanting to make sure that our influence going forward is secure and on some of the points she was making about appointments and having British officials working there. It remains the case that the Prime Minister’s wish is to negotiate hard for what he hopes will be a renegotiated agreement with the European Union. He would then be in a position to recommend to the British people that they accept it in a referendum in 2017.

It is clearly the case that the outcome of the discussions over the new president make that task more difficult, but the Prime Minister was faced with a position in which, given the way that the apparent positions of some of our colleagues in Europe changed over time, he could either go quietly and accept the imposition of Mr Juncker and the European Parliament’s land grab or to try to argue the principle. He took the view that rather than going quietly to spare his own blushes, he should seek to make the principled case that it was an appointment that should have been made by the European Council, not the European Parliament. The fact that in the conclusions after the meeting there was acceptance that that decision would be reviewed for the future underlines that the concern about that process is more widely spread than might be suggested by the noble Baroness.

There is also the point that, as it is the case that there needs to be reform, which the party opposite accepts, having as President of the Commission someone who in the past has not been associated very strongly with a reform agenda is not going to make the task easier for Britain. It was clearly the case that the party opposite and my noble friends on the Liberal Democrat Benches shared those principled objections to Mr Juncker’s appointment. The Prime Minister was therefore right to stick to his guns.

There will clearly have to be a lot of hard work to continue to make progress with the reform process. I think some of the wording in the conclusions already signifies the recognition by many of our colleagues that they need to be sympathetic to and make movement on Britain’s concerns. I think the Prime Minister was right to make that case and to stick to principle. He will work hard over the next three years to negotiate the best possible deal for Britain and will then be in a position, he hopes, to recommend it to the British people in a referendum.

5.55 pm

Lord Howell of Guildford (Con): My Lords, on the appointment of the new President of the Commission, Mr Juncker, there has clearly been a transfer of power or competence, as the Prime Minister has pointed out, to an EU institution from national Governments. What is the position under the European Union Act 2011, in particular under Section 4(1)—paragraphs (g), (h) and (i)—which I had the privilege of guiding through this House at the time?

Lord Hill of Oareford: I will have a go, although I suspect I may need to write further to be more accurate. My noble friend took the Bill through and enacted it, and I am sure he knows it far better than I do.

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My understanding is that the Act applies to changes in the rules that transfer power from Westminster to Brussels. Under the EU treaties, the European Council, acting by qualified majority, shall propose to the European Parliament a candidate for president of the European Commission. In this instance, we believe that the existing rules were pushed to shift power from the European Council to the European Parliament rather than any fresh transfer of power from Westminster to Brussels. That is the distinction. It did not represent a further transfer of power from Westminster. If I have got that wrong, I will make that clear to my noble friend in a letter that I will circulate to the House and place in the Library.

Lord Kinnock (Lab): The Leader of the House has spoken of policy and by the use of that word has inferred a strategy in the mind and conduct of the Prime Minister. Was it policy that produced the withdrawal of the Conservatives from the EPP in 2005—thus relinquishing, as they were warned, any degree of influence over the largest group in the European Parliament? Was it policy that made the Prime Minister proclaim his opposition to an individual candidate very early on in this procedure, thus removing any room for Chancellor Merkel or others to negotiate about the final resolution of the position? When the European Commission, the European Council and the European Parliament to varying degrees all favour reform, does the Leader of the House think that that mission is propelled forward by allowing one of his Cabinet colleagues to describe a heroine—a genuine heroine since her earliest years—Angela Merkel as a coward? If these are all policies, what hope is there for the Prime Minister to be the man to negotiate the change that is necessary and welcome in the European Union?

Lord Hill of Oareford: The point I was trying to make was that on policy grounds it was the view of the Prime Minister and others within the European Council that the decision about the next President of the Commission should be taken by the Council rather than by the European Parliament. That was the principled point that he was seeking to pursue. More broadly, in answer to the noble Lord’s question about the policy, if one looks back, the Prime Minister as a matter of policy has sought to influence and move the agenda of the European Union towards growth, jobs and trade deals with the United States, Canada and other countries. One can see, in progress on deregulation and all the rest of it, a shift over a number of years which reflects the policy that he has been seeking to pursue.

Lord Dholakia (LD): My Lords, I first endorse the sentiment expressed by the Prime Minister about the centenary of the conflict which led to the First World War. The question I want to ask is very brief. We keep hearing about the reform agenda. When are the Government going to spell out what this reform agenda is all about? Surely it is inappropriate not to know that particular matter until after the general election. Are we likely to hear what the Prime Minister and the Government have in mind in terms of this agenda?

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Lord Hill of Oareford: First, as part of that agenda, the Government are pursuing the general objectives of progress on trade talks and on liberalising markets. This is something the Government have set up, and we have made some decent and solid progress. Other aspects will become clearer over time as the negotiation continues, but the Prime Minister set out the main strands and objectives we are pursuing in a number of areas in his Bloomberg speech. That is the approach to which he has been sticking.

Lord Hannay of Chiswick (CB): My Lords, would the Minister accept a mild change to the Prime Minister’s Statement that it was a “bad day for Europe”? It was a bad day for Britain in Europe.

I will not go too far down the road of asking the noble Lord how on earth the Prime Minister managed to find himself in Brussels last Friday with only one supporter, but perhaps he could tell us how he found himself in Brussels on Friday with only one supporter and no alternative President of the Commission. It was a little odd to have asked the European Council to reject someone without having the slightest idea about whom they might appoint.

To use a slightly more emollient tone, I do think it was a mistake—and I believe the noble Lord has already begun to comment—not to put all the emphasis on what is called the strategic agenda, which has come out pretty well. The text of the strategic agenda, to which the noble Lord referred, and to which the Prime Minister referred, has some really good points along the lines of a positive reform agenda. If the Prime Minister had put all the weight on that, and not gone for an over-the-top personalised campaign against Mr Juncker, we might have got a bit further. I wish the noble Lord would comment on that.

Finally, I was quite startled to hear that the Government are going to be the voice of all those who voted in protest at the European elections. Are we to be the voice of Golden Dawn? Are we to be the voice of the Front National? Are we to be the voice of UKIP? I hope not. Not in my name, please.

Lord Hill of Oareford: As far as the voice of UKIP is concerned, we have the voice of UKIP here, which I am sure we will hear later. I agree with the noble Lord on his remarks about the strategic objectives and his welcome of the language. There has been some solid progress, which I will not overstate. It is significant that the noble Lord spotted that and, being a fair-minded person, relayed that to the House. There is some good language in there which reflects the kind of reform agenda that not just Britain but other countries are keen to see taken forward.

As for the Prime Minister speaking for the whole of Europe, his point was that the scale of apparent disaffection with the European Union reflected in the recent elections needs to be addressed—and by those who are supporters and champions of the European Union more than anyone else. That was the point he was seeking to make: disaffection from the European Union is clearly evident and growing, and the best way to address it is to have a reform programme that responds to it rather than to ignore the popular discontent that seems to have been expressed.

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Lord Tugendhat (Con): Does the Minister agree that it is now incumbent upon the Prime Minister to come forward with much clearer detail as to what reforms he wants to see. One of the difficulties that allies and potential allies on the Continent have is knowing what it is exactly that he wants. He talks about reform, but he has not been very specific. Does he also agree that it is very important that the Prime Minister should convince our allies and potential allies on the continent that he wants to bring back a programme that he can recommend to the British electorate and that he is not primarily concerned with trying to reconcile the irreconcilables in our own party? The noble Lord may tell me that the Prime Minister is indeed concerned to bring back a programme he can recommend, but impressions are very important. The impression has gained ground that his principal objective is to reconcile the irreconcilables in our party rather than to conduct a successful negotiation. It is very important that he should push that impression into the background.

Lord Hill of Oareford: I know that the Prime Minister will want to carry out and, he will hope, complete successfully a renegotiation that he can recommend to the people of Britain that he believes is in the interests of Britain. That is not about a party political agenda or management task. In putting that package, whenever it is concluded, to the British people it would clearly need to command the support of the whole of Britain and all of those from any party who want to see Britain remain in a reformed European Union.

Lord Foulkes of Cumnock (Lab): My Lords—

Lord Pearson of Rannoch (UKIP): My Lords—

Lord Davies of Stamford (Lab): My Lords—

Lord Bates (Con): I think it is Labour’s turn.

Lord Foulkes of Cumnock: My Lords, does the Leader of the House recall that when a Labour Prime Minister wanted to achieve something at a summit, we arranged for the ambassadors in all the countries of Europe and our Foreign Office Ministers to do some preparatory work to move us in that direction? We also worked through the Party of European Socialists to get all our socialist colleagues into line to support us. Could the Leader of the House explain what the Prime Minister did along those lines?

Lord Hill of Oareford: I will take it very happily from the noble Lord that that was how the previous Government operated. Unfortunately, they also gave up our veto through the Nice and Lisbon treaties. That made the pursuit of our national interest much more difficult in these circumstances.

Baroness Falkner of Margravine (LD): My Lords, will the Leader of the House comment on paragraph 27 of the conclusions, which seems to give great comfort to the PM about the Commission process as the selection of the President is going to be reviewed? Has he noticed the wording that says it will be reviewed respecting the European Treaties? How is that any

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different to what was in the Lisbon treaty which referred to taking account of the treaties?. Given that the House of Lords European Affairs Committee warned of this situation in 2008—six years ago—does he not think he needs to tell us a little bit more about the reform agenda, because we will need to prepare the ground for some years before 2017?

Lord Hill of Oareford: My noble friend is right to point us towards that paragraph which contains a number of important points. Her point about the European Council considering the process for the appointment of the President of the European Commission is set out in the way that she says. As it happens, that paragraph also says,

“the European Council noted that the concept of ever closer union allows for different paths of integration for different countries, allowing those that want to deepen integration to move ahead, while respecting the wish of those who do not want to deepen any further”.

That is quite a significant addition to the kind of wording one typically sees in these conclusions. That, in itself, is part of the answer to the point about the influence that Britain is still able to have. On some of my noble friend’s more specific points, if there is anything further I can say about the Select Committee, perhaps I will talk to her about that subsequently.

Lord Pearson of Rannoch: My Lords, does the noble Lord agree that it is hard to find a normal person who knows why Mr Juncker’s job is so important? Might it create public support for the Government’s EU reforms if they were to reveal the unelected Commission’s role, with its monopoly to propose and execute all EU law and to issue regulations which are binding in all EU countries? Or could it be that the Government share the BBC’s fear that, if the British people understood just how irrelevant this their Parliament has become, and how rotten and anti-democratic the EU really is, their clamour to leave it might become irresistible? If our leaving the EU leads to its collapse, so what? What is the point of it now? One can see the point of NATO, the United Nations and the World Trade Organisation, but what is the point of the EU? Can the noble Lord tell us that?

Lord Hill of Oareford: Not in the time that we have available, when I know a lot of other noble Lords want to get in. It clearly is an important job, and that is why we were determined to try to make sure that the process for appointing the person followed the approaches that we thought were set out in the treaties. However, the Government’s position is not the same as that of UKIP. The Prime Minister intends to work extremely hard over the next three years to try to negotiate a package of measures that he will feel confident in putting to the British people in a referendum, which we aim to hold before the end of 2017.

Lord Elystan-Morgan (CB): My Lords, in relation to the Prime Minister’s intentions and aims in this matter, does the noble Lord the Leader of the House recollect that last year in Kazakhstan the Prime Minister made a speech in which he said that he would wish to see the boundaries of the European Union extended

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eastwards to the Urals? He was not speaking of associate status. Is that still his intention? Is that the policy of Her Majesty’s Government?

Lord Hill of Oareford: My Lords, there are generally a number of countries in discussion with the European Union about becoming members. We have had the signing of the association agreements with Georgia, Moldova and, obviously, Ukraine. There was a discussion at the European Council about Albania being able to apply for status. There is appetite for membership to continue to grow.

Lord Cormack (Con): My Lords, I express the hope that the Prime Minister will spend some time this summer in bilateral conversations with our friends, colleagues and neighbours in the European Union. Could we bear in mind throughout that isolation is rarely splendid, and is even more rarely successful or sensible?

Lord Hill of Oareford: I say to my noble friend that I know how much time the Prime Minister spends on bilateral relationships with a range of European partners in a range of different fora. I know from my time in Downing Street 20-odd years ago, when the European Union was smaller, how much time the Prime Minister of the day has to spend on those relationships. This Prime Minister will certainly do that, as have all previous Prime Ministers.

Lord Davies of Stamford: My Lords, whether we are in the European Union or not, we shall need the good will of our continental partners. Indeed, we shall need their good will even more if we leave, because we shall then have no more rights or entitlements under the treaty and every arrangement we have with its members will have to be laboriously negotiated. Does the noble Lord agree that in life, and particularly in negotiation, it is always a mistake to personalise an issue if you want your substantive points to be taken seriously? Does he also agree that in life, and particularly in negotiation, it is always a mistake to use public threats and blackmail, because no self-respecting human being feels inclined to make concessions under that kind of pressure? Is quiet, collaborative diplomacy not the best way?

Lord Hill of Oareford: I certainly agree that in normal circumstances, most of the time, quiet collaborative diplomacy is the right way to go. However, there are times at which, if that route does not work, you are faced with a choice of seeking to avoid embarrassment by going quietly, or of saying, “Actually, this is a point of principle about which I feel strongly, and I will therefore put up with that risk of embarrassment by arguing for it”.

On working with colleagues, I agree with the noble Lord’s point. That is how Europe works and how Britain pursues its relationships with other countries. I am sure that we will continue to do that. The noble Lord will already have seen the remarks made by a whole range of European leaders since Friday which demonstrate that they are keen that Britain should remain part of the EU. They understand our concerns and are keen to work with us to see what progress we can make in resolving them.

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Criminal Justice and Courts Bill

Second Reading (Continued)

6.16 pm

Baroness Berridge (Con): My Lords, I declare an interest as a member of the Joint Committee on Human Rights. Although I find it difficult to find a single theme within this Bill, there is much to commend some of the provisions and measures contained within it.

As a supporter of the No More Page 3 campaign, I note that the Bill terms certain images as “extreme” pornography, and may by amendment refer to “revenge” pornography, to differentiate it from other pornography that, unfortunately, has become so easily available in our society. I support this limit on such pornography, as the cultural effects of such images cannot be underestimated. As the Joint Committee on Human Rights report states, the demand for academic work in this area has often been oversimplistic in requiring strict cause and effect. However, I hold the basic view that if images did not have a substantial effect on individuals’ behaviour and on our culture, the advertising industry would not exist on the scale that it does.

In light of the current media focus on the activity of British citizens in Syria, the increase in sentences in the Bill for various terrorist offences, to enable them to come under the dangerous offenders sentencing regime, is a welcome message to the general public. It seems that the threat of criminal activity of this nature currently exceeds the actual convictions, but it is better to be prepared than to find the judiciary without the necessary powers.

The wisdom that I have seen over three years in your Lordships’ House from many octogenarians means that an increase from 70 to 75 for the maximum age to serve on a jury is long overdue.

From visiting category C prisons, I feel that the need to bring prescription drugs under the drug-testing regime is a loophole that should be closed. Currently, the searches of prisoners for prescription medication in their possession—without the corresponding prescription—are thorough, but I never fail to be surprised at the ingenuity of prisoners in hiding things. Drug testing is of course incontrovertible evidence of possession of these drugs.

The United Kingdom is blessed with some of the best medical care in the world, particularly in our accident and emergency departments. It is often only this care that saves the life of someone hit by a disqualified driver, but they may still end up maimed for life. The culpability of the driving behaviour is the same, and so an offence of causing serious injury by driving while disqualified is also very welcome.

I part company with my noble friend Lord Paddick on mandatory sentencing for the offence of possession of knives. I do not think it is any coincidence that the amendment was put forward in the other place by Nick de Bois and supported by David Burrowes, who are MPs for the Borough of Enfield, which, if one glances over the media, is a borough that has been disproportionately affected by knife crime. The possession of knives is now an even greater menace, particularly

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to young people, than the possession of guns. The strengthening of the sentencing powers within the Bill is welcome.

Therefore, while this speech further illustrates that the Bill is something of a pick and mix, I wonder whether there has been consideration by Her Majesty’s Government of further issues that could perhaps have been in the Bill. During the tragic murder of Drummer Lee Rigby there seemed to have been a risk that, due to the public nature of the incident, photographs of the armed police involved might have been taken by the public and found their way through Twitter into the public domain. Of course, the police were undoubtedly the heroes in this situation. However, what if the neighbour on the balcony who filmed the aftermath of the shooting of Mark Duggan had a slightly better mobile phone and the armed police could have been identified? Could my noble friend outline whether the police are indeed concerned about such a situation? Perhaps it is covered by other legislation, but I have been unable to find relevant provisions.

I would also be grateful if the Minister could outline whether the Government are satisfied with the current rules around the disclosure of the identity of young people charged with murder. Your Lordships may be aware that, in the recent case of the tragic murder of Ann Maguire in a Leeds school, there appeared to be a loophole in the law that allowed the identity of the offender to be released into the public domain after he was arrested but before he was charged. I would be grateful to note whether the Government wish to enact provisions that would close that loophole.

Finally, I wish to support the principle behind the introduction of secure colleges, whose aim is to remedy the often very poor educational attainment of young offenders, which has been outlined for your Lordships’ House. Enhancing their skills, of course, is one way to reduce reoffending, and having institutions for which this is their primary focus can only be an improvement. However, I would be grateful if the Minister could explain why these institutions would cover the age ranges 12 to 17 and why the reasons for the other institutions within the secure estate being divided between those aged under 16 and those aged over 16 do not apply to this type of institution.

I accept that some of the young people in secure colleges will have the physical strength of an adult, so I fully support the use of the reasonable force as a last resort and for the purposes of preventing harm to that child or to other children. Of course, where such force is used, it should be the minimum necessary. The suggestion that secure college rules can provide for force to be used on children to ensure good order and discipline leads me to worry about the capability of the providers of such colleges if they need such rules. While I appreciate that this education is within the secure estate, Serco or Wates employees able to use force, for instance to make a child stand in an orderly queue for a meal, reminds me of the teaching methods at Lowood Institution for orphans attended by Jane Eyre. I expect that this matter will be the subject of further discussion in your Lordships’ House, and although I am a member of the Joint Committee on Human Rights, I do not believe that I need to pray in aid any

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of our international obligations so much as the common law. I am proud to say that in all our education institutions, corporal punishment of this nature is a thing of the past and should remain so.

6.23 pm

Lord Ponsonby of Shulbrede (Lab): My Lords, I want to go through the Bill and address various points. First, Part 1 is concerned with dangerous offenders, in Clauses 1 to 5 and Schedule 1. The effect of these new offences and new release conditions will be to increase the prison population—an increase of about 1,000 prisoners over the coming period, as the Government said in their impact assessment. When I attended the All-Party Parliamentary Penal Affairs Group around Christmas time, we heard from the Parole Board about the pressure that it is currently under. Given the existing backlog of cases for parole hearings and the Osborn judgment, I think it behoves this House to look very carefully at the Bill in Committee to examine how realistic it is that the Parole Board will be able to meet the increased expectations following the Osborn judgment and the provisions within this part of the Bill.

I move on to Clause 15 and the matter of cautions. I welcome the proposal to restrict cautions to summary and either way offences and to limit the use of repeat cautions. It is of extreme importance that cautions have public confidence. There has been legislation for scrutiny panels—which I have mentioned in previous Bills—to look at whether they are being appropriately administered. Scrutiny panels are being piloted in different parts of the country and I know there are schemes in place to look at the consistency of the various roles of scrutiny panels. It is clear from the legislation that it is for the police to lead the set-up of the scrutiny panels, but it is unclear to whom those scrutiny panels report and what is to be done with their findings. To give the House some idea of the scale of the issue, in the Metropolitan Police area in 2012-13 there were some 70,000 out-of-court disposals, and the current proposal within London is that there will be two meetings of a scrutiny panel each year in each judicial business group area. Therefore, I do not want to be too sceptical, but I am doubtful whether that level of scrutiny is going to be sufficient to assuage doubts about the proper use of cautions.

I move on to Part 2 of the Bill and young offenders, which are dealt with in Clauses 29 and 30 and Schedule 6. As we have heard throughout the afternoon, and Ministers will be very aware, there is near universal opposition to the secure colleges idea. The various pressure groups that contact noble Lords are universally against these proposals. I understand the Government’s objective to reduce the cost of detention training orders and to enhance the educational provision available to young offenders. I understand both those objectives. The objections to the secure colleges will be well known to Ministers: the families of children will inevitably have to travel further to the colleges, and there may well be a mixing of different age groups and ability ranges so the colleges will have to be very carefully managed so that the different elements of the college are appropriately separated. I know the Minister in the other place, Jeremy Wright, has promised to publish

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secure college rules. I would be grateful if the noble Lord the Minister could say when we might expect to see those and whether we could expect to see them before Committee stage.

I have two specific questions which, so far as I am aware, were not asked in the other place. First, will it be open for secure colleges to take 18 to 21 year-olds? Clearly, they would be managed separately from those under 18, but would it be open for secure colleges to take 18 to 21 year-olds if there was space available? The second question is whether it would be open for local authorities to refer young people to a secure college if they have no criminal conviction. My understanding is that this is the case—rarely but it is the case—in secure children’s homes, but would it be available for the secure colleges?

I spent some of yesterday afternoon looking at the Youth Justice Board’s website. There are 75 youths in custody in the East Midlands and 48 in the east of England. Therefore, when one considers the new build site for Glen Parva in Leicestershire, there is obviously an inadequacy of youths to go to that site, so it is self-evident that the youths would have to come from further away. However, we have had larger dedicated juvenile prisons in the recent past. First, Wetherby could take 360 prisoners plus a further 48 in a special purpose-built unit, but its capacity has now been reduced—mothballed—to about 200, so there is capacity there. Secondly, Hindley became a juvenile-only prison in 2009, with 450 places but because of falling numbers and after four and a half years it was resplit into 248 juvenile offenders and 192 18 to 21 year-old prisoners. The point that I am making is that building capacity is not the central issue, which is surely to provide the enhanced education. The £80 million cost is a lot of money. We do not know where it is coming from, but I suspect that many noble Lords, and certainly many pressure groups, would think that it would be better spent on enhancing education provision rather than building new buildings.

I move on to Part 3 of the Bill and the single justice procedures in Clauses 36 to 40. I agree with the Bill’s proposal that a single magistrate can convict and sentence high-volume, low-seriousness cases; this is when a defendant pleads guilty or agrees to the procedure or does not respond to notifications. I have sat on hundreds of these cases, and I am very glad to agree with the procedure. I say to my noble friend Lord Beecham, who is not in his place, that one magistrate is more than sufficient and you can, under current rules, sit with two magistrates. The Magistrates’ Association has raised a concern that this change in procedure should not be seen by the public as a lessening of the rigour with which criminal cases are dealt with in a magistrates’ court. To this end, the MA has come up with two alternative suggestions, which I may move as amendments in Committee. The purpose of the suggestions is to publish the courts’ list in a readily accessible way so that people can be confident that procedures are going through in a public way.

I move on to the committal of young offenders to the Crown Court, in Clause 41. I welcome this clause, which was introduced at the very last minute in the other place. If the Government have any estimate of

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the numbers of young people who they think will be sent up to the Crown Court under this provision, I would welcome that information. The Carlile report, which was a very good one, of course went much further than this in terms of trying many more cases concerning youths in the magistrates’ court. But this clause is a welcome step in the right direction.

On Part 3 and the costs of criminal courts, in my view it is wrong in principle that people should pay their court costs; it is the role of the state to provide the court’s services, so the state’s laws can be properly administered. I accept that my point of principle is weak when it relates to rich foreign businessmen who seek to resolve their contractual disputes in British courts. But from where I sit, as someone who regularly sits in magistrates’ courts, a very high proportion of the people I see are poor and on benefits. It is inevitable that imposing a mandatory court cost will make poor people poorer and more likely to plead guilty to reduce the potential court costs. Does the Minister think that that is fair? At the very least, magistrates and judges should have discretion about how much of the court costs are actually applied.

I want to make one comment on judicial review, and specifically on children, who are the most vulnerable. They cannot pursue these matters themselves and I would support any move in Committee that seeks to protect children with regard to judicial review.

Finally, in wrapping up, my noble friend Lord Beecham described this Bill as a pot pourri and then went on to give us a lesson in etymology—that it is not necessarily something that smells nice but could be a mixed pot of meat. We will see which is the correct interpretation in the coming weeks.

6.34 pm

Lord Brown of Eaton-under-Heywood (CB): My Lords, there are parts of this Bill to be applauded and other parts, alas, to be decried. I for my part particularly welcome the new provisions that place restrictions on the use of cautions. The overuse of these in recent years has gravely weakened public confidence in the criminal justice system. I also welcome the creation of new criminal offences in respect of the ill-treatment or wilful neglect of adults in care homes, the subject of a number of well publicised cases that have deeply and understandably shocked the public.

However, I can only deplore much of what appears in Part 4 with regard to judicial review, the area of law that principally has concerned me over the past 35 years, ever since I was privileged to follow the noble and learned Lord, Lord Woolf, as Treasury Counsel in 1979, before undertaking 28 years of judicial servitude. Necessarily, at Second Reading, one must be selective in one’s focus, and I shall therefore confine myself to comparatively brief comments on four topics only—IPPs, personal injury claims, juries and, finally, the proposed new test for refusing relief in judicial review challenges.

First, on IPPs, the noble and learned Lord, Lord Lloyd of Berwick, greatly to his credit, has for some time past, as we all know, steadfastly been pursuing the cause of these luckless prisoners—and, rightly, he continues to do so. Clause 9(3) returns to the topic, albeit, as I understand it, only for the very limited

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purpose of extending the Secretary of State’s power under Section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—that is, the power to modify the test to be applied by the Parole Board in deciding whether to release these prisoners—to IPP prisoners in the event that they have once been released and then recalled. Astonishingly, however, the Secretary of State has yet to exercise that power under Section 128, even in relation to the 773 prisoners to whom the noble and learned Lord, Lord Lloyd, referred, those who remain in prison long after their tariff sentences—often less than two years—expired, who were sentenced in the initial period after IPPs were first introduced in 2003, at a time when judges had no discretion but, instead, were under a statutory obligation to pass such sentences. In other words, this is before the 2008 modification of the regime, when it ceased to apply unless there was a tariff term of at least two years, when judicial discretion was to some extent introduced, and, of course, years before this entirely discredited form of sentence was finally abolished in 2012.

At the conclusion of the short debate on this problem back in March, the noble Lord, Lord Faulks, while noting that the Secretary of State,

“has not considered it so far appropriate to exercise the power given to him by the LASPO Act”,

recognised that:

“The sentence itself was clearly ill conceived and its impact was wholly underestimated”.—[Official Report, 27/3/14; col. 700.]

The noble and learned Lord, Lord Lloyd, must be right in saying that Section 128 was specifically enacted to enable this most egregiously ill-treated group of prisoners to be released earlier than they might otherwise hope to be. Frankly, it seems to me deplorable that to this day it has not been exercised. I can see no possible point in now extending it to the new class encompassed by Clause 9(3) if it is never going to be exercised. Surely, what this Bill should be doing is requiring a favourable exercise of the discretion. I hope that the noble and learned Lord, Lord Lloyd, will come back to that and seek to introduce it at Committee stage.

Secondly, I refer to personal injury claims. Like other noble Lords who have taken part in today’s debate, a considerable time ago I had some experience myself in this field. Clause 45 provides basically for the dismissal of personal injury claims if the claimant has been “fundamentally dishonest” in the way he has advanced the claim. For example, let us suppose that a claimant suffers a broken leg through the defendant’s negligence but, having in fact made a full recovery after six months, he nevertheless claims on the basis that years later he still cannot manage to walk 100 yards and fully expects to be disabled for life. If, as sometimes happens, he is then filmed playing football or possibly running a half-marathon, surely we would all agree that that would be clear evidence of fundamental dishonesty. It would surely be right that, instead of being awarded, say, the £5,000 that the claim might have been worth if honestly advanced, he should get nothing—unless, that is, the court thinks that he would thereby suffer substantial injustice.

For my part, in common with the noble Lord, Lord Hunt, but unlike, I fear, the noble Lords, Lord Beecham and Lord Marks, I support this provision. I find

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myself unpersuaded by the briefing that I suspect many of us will have received from the Association of Personal Injury Lawyers. True, it will be necessary on occasion to argue over whether the claimant’s untruthfulness or exaggerations constitute fundamental dishonesty and perhaps it will be necessary to argue whether dismissing his claim entirely would cause him substantial injustice. However, given the readiness of some these days to treat an accident as a God-given opportunity to make a fortune—“Whiplash Willie”, I seem to recall, was the name of a character played by Walter Matthau in a film some years back—this seems to be a clear steer to how judges should exercise their discretion in the matter. The modest narrowing of an existing discretion is a price worth paying for the discouragement which it is hoped this new provision will provide to those who are inclined or tempted to advance dishonest claims. Again, unlike I fear the noble Lord, Lord Beecham, I see no possible logic in suggesting that this provision should therefore be mirrored in regard to the defendant’s conduct of their defence. Surely, on analysis, there is no sensible parallel to be drawn between the opposing cases.

I turn briefly to juries. Clause 56(3), consistently with the recommendations of the Law Commission, rightly introduces a new offence of research by jurors—most typically, jurors using IT to discover, for example, whether a defendant has previous convictions. I support that. However, the Bill says nothing about research into juries, the question broached by the noble Lord, Lord Blair, in March when, as he explained today, he misunderstood the position, as indeed—he hinted at this too—did I. Section 8 of the Contempt of Court Act 1981 bars absolutely all possibility of research into juries. That is a provision with which I am very familiar given that the very reason it was introduced into the 1981 Act was that I myself had failed as counsel then acting on behalf of the Attorney-General in the prosecution of the New Statesman for contempt of court for publishing a juryman’s account of the jury’s deliberations in the Jeremy Thorpe trial. However, I knew nothing at all of any subsequent attempt to mitigate the effect of that section with regard to jury research. As the noble Lord, Lord Blair, today made plain, it seems that nobody else did either, with the possible exception of Professor Cheryl Thomas. Surely the Bill provides a perfect opportunity to correct what to many people will continue to appear to be an obstacle in the law.

I will briefly make a further point on juries. Is it not time to revisit the whole question of mode of trial for serious and complex fraud cases? The trial of such cases by a judge and two lay members chosen for their relevant expertise rather than by a jury would hugely reduce the length and cost of trials and at the same time increase the prospect of arriving at a sound verdict. Surely that, rather than drastically slashing counsel’s fees to a point at which the whole future of the criminal bar is now under grave threat, is the way to achieve economies in the criminal justice system without in any way damaging—on the contrary, it would advance—the fairness of the trial process. Indeed, that would allow more such cases to be brought to be trial, the better to deter the increasing number of

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those who engage in fraudulent white collar operations. That was the recommendation of the Roskill committee way back in 1986 and it was reinforced by the Auld report in 2001. The subsequent attempts to introduce this provision in Parliament are a sorry story. I suggest that we would do well to follow the course recently taken in the Defamation Act 2013, which by Section 11 provides that libel cases in future are routinely to be tried without a jury.

Finally, I turn to Part 4 of the Bill, which is the part that I regret so deeply and oppose sharply; the Government’s continuing attempt to curb the courts’ power by judicial review to supervise executive action. Regrettably, the Government have already begun to do this in the secondary legislation introduced earlier this year by substantially cutting public funding of judicial review, including, most unwisely, declining to fund leave applications unless they are successful. Now they seek to compound that by lowering the threshold for refusing permission to bring judicial review or, at the end of a hearing, for withholding any remedy—to reduce it from the existing test of inevitability to that of high likelihood.

As others have made clear, there are fundamental objections to that proposal, both in principle and as to the practicalities. So far as principle is concerned, this clause will in future require the court to reject a claim even though the decision may be deeply flawed in point of law simply because it is highly likely, although ex hypothesi not inevitable, that substantially the same decision would be arrived at, even if the matter was to be properly reconsidered and lawfully decided afresh.

Such an approach will allow public authorities to escape responsibility for their unlawful decisions. It overlooks both the central importance of honouring the rule of law and the inevitable feelings of resentment which one must feel, having been refused any remedy despite knowing that the decision taken against one was legally defective. It is worth repeating in this connection a short part of a celebrated dictum from a judgment given nearly half a century ago in the Chancery Division which is true in the context of a breach of the rules of natural justice but is equally applicable to the establishment of any other legal error in the decision-making process. The judgment in the case of John v Rees states:

“‘It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change”.

As to the practicalities, one simply refers, as the noble Lord, Lord Pannick, has already done, to the report of the Bingham Centre in February of this year, which expresses the senior judiciary’s view that the proposed new test,

“‘would necessarily entail greater consideration of the facts, greater (early) work for defendants, and the prospect of dress rehearsal permission hearings’”.

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The report continues:

“The proposal thus stands to elongate and complicate the permission stage, by encouraging defendants to file lengthy and detailed evidence, with consequent delay and increased cost to all parties”.

Certainly, there has been an increase in the use of judicial review over the years, but is this such a bad thing? More and more areas of our lives are controlled by public authorities. At the same time, we have become, understandably I suggest, less trusting and certainly less deferential towards those in authority over us. I sometimes wonder whether it did not all start with John McEnroe’s outraged questioning of line calls at Wimbledon way back in the 1970s. However, we should consider how in the long run his behaviour has contributed to the hugely improved policing of those lines that is in operation today. I speak as someone who was lucky enough to be on the centre court on Friday. By the same token, the use of judicial review has to my mind undoubtedly raised the standards of public decision-making in recent years. Alas, technology cannot be deployed to solve disputed calls in the law courts as on tennis courts, but the judges’ supervisory jurisdiction is assuredly the best safeguard that the public have against unlawful executive action and the abuse of power, and the Government most certainly ought not to be legislating to weaken it. Therefore, I join my voice to the many others who have already spoken, and those who are yet to speak, in condemning not only Clause 64 but the further provisions which the noble Lord, Lord Pannick, so powerfully analysed and criticised.

I apologise for taking so much of your Lordships’ time but, in truth, this is a Bill of the first importance and it contains a number of provisions of which we should be decidedly wary.

6.54 pm

Baroness Linklater of Butterstone (LD): My Lords, little did I think that I would get to my feet having heard parallels being drawn between judicial review and line decisions at Wimbledon, but I think that my speech will be much more boring than that.

This Bill comes hot on the heels of a previous Bill, now the Offender Rehabilitation Act, which contains important changes such as the new levels of support to be given to offenders coming out of prison, which I support. This Bill in turn looks at the more punitive aspects of government plans, which involve being tough on crime and collectively are likely to put further pressure on our already overstretched prisons and the overworked Parole Board in particular.

These are difficult times for the Prison Service in England and Wales, with rapidly rising numbers, huge budget cuts, significantly reduced staffing levels and disturbing increases in serious assaults and suicide in custody. The Chief Inspector of Prisons, Nick Hardwick, has recently warned of a situation of “political and policy failure”. Although the number of offenders coming into the system over the recent past has decreased, in the past five weeks the prison population has increased by 734 people—the size of a large prison—and now stands at 84,533 souls, while the prison estate as a whole is holding 9,242 more prisoners than it is designed to hold. Cuts to the MoJ budget are due to total £2.4

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billion by 2015. Now, like never before, it is time to give priority to alternatives to custody as a matter of urgency, which some of us have been trying to promote for years, and which are far cheaper, with far better outcomes in terms of reducing reoffending. The proposals in the Bill, I suggest, should be tested against these realities.

The scope of the Bill is very wide and I will focus my remarks on the first part of it. Clause 6 deals with electronic monitoring or “tagging”. Used appropriately, it is an effective tool, particularly when coupled with good supervision. However, subsection (3) of this clause gives new powers to the Secretary of State to make tagging mandatory, either by type of offence or type of sentence, thus limiting operational discretion and the flexibility to best suit the needs of individual offenders. These powers can be exercised by order, thereby limiting the role of Parliament to scrutinise, and any provision to guard against inappropriate use is currently vague. The code of practice just states that the Justice Secretary must implement a non-binding code of practice in relation to the processing of data gathered via tagging—in other words, a virtual free hand. The Joint Committee on Human Rights has said that,

“detailed safeguards in the Code of Practice will be crucial to ensuring that the processing of data”—

that is, data gathered in such a way—

“is carried out in such a way that any interference with the right to respect for private life is necessary and proportionate to the legitimate aims pursued”,

thus pre-empting the possibility for human rights to be ignored. The committee suggests that the Bill,

“be amended to make the Code subject to some form of parliamentary procedure”,

to ensure that Parliament has the opportunity to scrutinise the adequacy of the relevant safeguards. I endorse that suggestion since these proposed changes, as they stand, are flawed and do not allow for proper parliamentary scrutiny, as they should do.

In Clause 7, there is a new provision allowing for recalled determinate-sentence prisoners to serve the whole remainder of their sentence in custody, rather than a fixed period of 28 days, as at the moment. This is if it “appears” to the Secretary of State that the prisoner seems highly likely to breach the conditions of their licence—thus punishing a prisoner on the presumption of future behaviour. There will be a new statutory pre-release test for these prisoners by the already overstretched Parole Board, which on top of all its other demands, will have to decide on the “likelihood of breach”, by making the same presumptions as the Secretary of State. It has been suggested that this clause places too much emphasis on the gamble of the likelihood of breach, at the expense of ensuring effective supervision and making a more positive and constructive gamble. In general, the chances of making good in the community are always higher out of prison, rather than in it. Good, effective supervision should always be built into the new release test. I look forward to the Minister’s response to this.

Under Clause 8, the Secretary of State is given the power to change the release test for these prisoners, subject to the affirmative resolution procedure, thus

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giving him an unacceptable degree of power. Parliament must be able to scrutinise and ultimately oversee all decisions that affect the fundamental rights of citizens, such as depriving them of their liberty. Citizens of this country must be confident that such decisions will always be the responsibility of the courts and not of a single individual—including any politician—who is here today and may be gone tomorrow. Any other way would be quite unacceptable.

Clause 25 deals with knife crime and was included at the last minute in the House of Commons. It includes minimum custodial sentencing for a second conviction. A previous conviction for “threatening” with a knife or offensive weapon will count as a first strike. The minimum sentence is a custodial term of six months for over-18s and a four-month DTO for over-16s. This clause is bound to lead to the inappropriate imprisonment of children and young people, estimated at around 200 children and 2,000 adults per year. The term covers offences ranging from threat and injury to the far less serious one of possession. It is well known that many children and young people in particular carry knives out of fear and in the vain hope of protection, and not to threaten others with the knife—I do not know if it is in vain, but it is certainly done in hope. In fact, possession-related offences have been dropping in the past three years—by 34% for children—and courts already have the powers necessary to deal with repeat offenders. I agree with many others that the measures in this clause are not necessary, could well cause more trouble than they seek to prevent and should be deleted. I sincerely hope that the Minister will give this suggestion serious consideration.

Clauses 29 and 30 deal with secure colleges. This proposal appears dear to the Government’s heart and we are told that considerable work has already gone into the idea. They think it sounds like a good idea, but I agree with the many who think it is a disastrous idea. The plan is that over time these colleges will replace all YOIs, STCs and some secure children’s homes, with the exception of a few for some particularly needy children. The rationale is to cut the costs of detention, and provide a more holistic and educational environment for young people. That sounds good. However, a glance at even the rough detail that is available shows a scenario that is not good at all.

I have a particular interest in this area, as I founded a school for children with special needs about 15 years ago. It is going strong and, I am proud to say, changing lives. It is predicated on being small—with around 35 children aged from 12 to 18 and it will never get bigger—so that every child gets all the individual attention he or she needs. There is no division into houses and it is run as a whole. It is like a family where everyone knows everyone else and its core mantra is, “It’s brilliant to be you”. The children in my school have to learn that they are valuable and worth something. They come from a range of complicated backgrounds, some staying most of the time and others going home at weekends. As I said, we change children’s lives.

A 320-place secure college is, by definition, not going to work, because a small scale is vital. Also, a regime of mixed ages and sexes, with children with extreme challenges in large numbers—however well

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divided up—cannot meet such children’s needs properly and is an impossible mix. The proposed idea of rules that authorise the use of force to maintain “good order and discipline” is a terrifying thought and bound to fail as well, being contrary to any understanding of best practice among professionals in the field. Is all this also to be delivered on a cut-price budget? That is an insult to the intelligence of the people who might be persuaded to run such a place, who are unlikely to provide anything like appropriate care.

So far there is no evidence of how offending rates will be reduced in the proposed system, how the education and training will work in reality or what the qualifications of the staff might be. For this cohort of children there is consensus among experts that boys should be separated from girls, and older children from younger children. The children are typically the most fragile, vulnerable, frightened—however they might seem otherwise—and poorly educated children. They are needy in so many ways and require an enormous amount of individual attention, patience and support. A culture in which use of force is authorised to enforce good order and discipline is against the law, sets itself up to fail and is, above all, completely abhorrent. It is astonishing that the Government are giving the idea the time of day, let alone allowing it to be the subject of serious debate in Parliament.

This planned pathfinder college would be vast, with 320 places, and it is inevitable that children of all ages will get lost. They would cause greater trouble than ever and find it impossible to have their needs properly met. Given the breadth and depth of need these young children have, and given that the Government are apparently prepared to spend £85 million, let them open, say, five small specialist units around the country and give a few children real help near their own homes. Secure homes are a good model, and that would be money well spent. Otherwise, pathfinder colleges costing £85 million when the MoJ budget is being cut and youth offending teams and other valuable services are being squeezed, would be a grotesque and unacceptable way of squandering our money and doing nothing but harm to our most vulnerable children.

There is a lot of material in this Bill that I have not touched on, but thankfully there are many noble Lords present who will do so much more ably than I, and I have spoken long enough. We will, of course, revisit all these issues during the passage of the Bill, which concerns some of the most challenging and needy citizens in the land.

7.09 pm

Lord Low of Dalston (CB): My Lords, as the Minister said at the beginning of this debate, the Bill makes significant changes to the justice system through measures that create some new offences and reform sentencing and the operation of the courts. It is not a legal aid Bill, but having chaired a commission on the future of advice and legal support in social welfare law—an interest that I declare—I am naturally anxious to probe the potential impact of the Bill on the provision of legal aid.

As regards Part 1—Clause 28 in particular—questions need to be asked about the impact of this package of criminal justice measures, especially new offences and

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the cost of parole hearings, on legal aid costs. Has a legal aid impact assessment been undertaken, I wonder? Whenever new criminal offences are put on to the statute book, we need to understand whether this will lead to additional demand for criminal defence services and inflation in the criminal legal aid budget. It is important to know this in the current context when legal aid for both civil and criminal work is facing further cuts. Historically, greater pressures on the criminal legal aid budget have led to ever greater cuts in the scope of and entitlement to civil legal aid, since civil problems do not merit the same equality of arms in access to justice under the UK’s human rights obligations.

As regards the proposals for a new model of youth justice provision in Part 2 and the establishment of a new secure training college, what, if any, work has been done on locating support services at the college, such as help with claiming benefits on release, debt advice and housing options? The voluntary sector has an excellent record in successfully delivering such services in custodial settings, but I fear that many such services have been delivered by agencies such as citizens’ advice bureaux extending the outreach of their social welfare law advice services into prisons—sometimes through specific matched-funding formulas between civil legal aid and support from NOMS and probation services. Now that there has been a retrenchment in legal aid for social welfare law, I am worried that such services focusing on prisoners’ needs have declined, and given the changes to the scope of legal aid for prison law issues, the opportunity for advice providers to work with prisoners on a range of needs that might help them to change their offending behaviour seems to be diminishing. Money advice and financial capability support are particularly important for young offenders. Youth Access has consistently demonstrated the value of early interventions in working with troubled teenagers to develop money skills.

This brings me on to wider issues of financial exclusion and criminal justice that are relevant to the provisions of Part 3. The direction of criminal justice policy is for ever greater use of larger financial sanctions and penalties by the criminal courts. In Clause 42 we are presented with new proposals for magistrates’ courts and Crown Courts to impose on defendants mandatory court cost-recovery charges of between £100 and £900. This is in addition to the victim surcharge and any fines or compensation orders imposed. Yet all the social and demographic data that we have show us that defendants in magistrates’ courts are the most financially excluded in society. The MoJ’s own prison population data show that some 68% have been unemployed before conviction, and a survey of magistrates’ court defendants undertaken by Kemp and Souza in 2009 for the Legal Services Research Centre came out with a sample of more than 50% having incomes below £12,475.

Overreliance on financial sanctions in the criminal justice system may explain in part why the MoJ has such a poor rate of fine collection. Sometimes the Government can spend more on the cost of enforcement than they can actually recover in fines and other financial penalties. I note that the impact assessment puts the estimated costs of introducing, administering and enforcing the new criminal courts charge at £20 million

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a year. Is this really economical if only low rates of collection can be expected? One of the problems is that courts do not have nuanced systems for determining ability to pay, as the magistrates’ courts’ means-assessment form misses out a lot of priority and non-priority debt such as fuel bills and rent arrears.

Clause 44 suggests that the Government’s solution to the enforcement gap is greater discretion for fines officers. However, as appeared when we debated the previous criminal justice legislation, the Crime and Courts Act, these enforcement functions are being increasingly outsourced to the private enforcement industry. That means large private firms of bailiffs, and many noble Lords will have concerns about the methods and record of these firms.

This brings me back to my earlier point about the importance of access to timely and appropriate debt and money advice, and the importance of this sector being able to work within the criminal justice system to help to turn lives around. It has the tools to help people and the means to properly assess, via the common financial statement, how defendants can meet their liabilities on a very low income. A better approach would be to bring money advisers into the magistrates’ courts to run fines clinics and work with the fines officers.

Many other provisions on courts and tribunals in Part 3 merit greater scrutiny, including those on civil appeals and wasted costs. We need to think more imaginatively about how our administrative tribunals are funded and how users are supported. I should like a system to be put in place, for example, whereby tribunals can recover costs from government departments that have shown poor decision-making.

Finally, I turn to the provisions of Part 4 on judicial review. Nothing I can say can begin to match the withering attack directed at this part of the Bill by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Others have commented on how the higher threshold set for granting permission to proceed with judicial review and the new cost liabilities on interveners and third parties could have a significant deterrent effect for citizens and their representatives pursuing their legitimate interests. These provisions, however, must also be seen in the context of some of the recent, post-LASPO, legal aid regulations that have restricted legal aid for pre-permission work in judicial review cases. Even though such cases remain within the scope of legal aid funding, the combined effect of legal aid changes already introduced alongside the judicial review changes in the Bill will surely act to cut a key avenue for citizens who need redress when unreasonable and unlawful decisions are taken by the statutory gatekeepers of welfare benefits, social housing and community care services.

In the time that remains, I want to say something about a group of victims of crime who are often forgotten: the children and adults dependent on offenders sent to prison. They feel isolated and ashamed. Prisoners’ children are often bullied and stigmatised. The experience of witnessing a parent being arrested can be extremely traumatising for a child, who may even be too young to fully understand what is happening or where their mum or dad is being taken. The statistics serve solely

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to emphasise their vulnerability: they are twice as likely as other children to experience behavioural and mental health problems, and they are three times as likely to go on to commit an offence. There are an estimated 200,000 children with a parent in prison at any one time, nearly three times the number of children in the care system, yet there is no official way of identifying them or ensuring their need for support is met. No one currently asks about them, so nobody looks out for them or cares about them.

The Families Left Behind campaign is therefore calling for a statutory duty to be placed on courts to ask an individual whether they have any dependants when they are sentenced to prison or held on remand. If they do, steps can then be taken to ensure that appropriate care arrangements are in place. They may be children, elderly parents or disabled partners: they are all people who are at risk of being forgotten when their parent or carer is sent to prison. The members of the Families Left Behind campaign and charities such as Barnardo’s, PACT and Partners of Prisoners can all give examples of children who have finished their day at school expecting their mother or father to be there to pick them up, only to find that there is nobody. Why? Because their parent had not expected to go to prison and had not made arrangements for the end of the day, let alone for the rest of their sentence.

An amendment to require courts to ask offenders this simple question and to check whether there are care arrangements in place would give offenders an opportunity to disclose whether they have a dependant. It would then no longer be so difficult to ensure that they get the support they need. Such an amendment would not be resource-intensive. Where care arrangements are already in place, no further action would be necessary. Where they are not, all that would be required would be a referral to a relevant local authority care provider.

The Bill provides an excellent opportunity to make a difference to the lives of these children and adults. It would be a tragic shame if the Government, while toughening up the system of justice delivered to criminals, missed the chance to help crime’s forgotten victims.

7.21 pm

Lord Black of Brentwood (Con): My Lords, I may be about to enter the record books for the shortest ever Second Reading speech. My thunder was well and truly stolen by the Minister in his opening speech. I had intended to talk this afternoon at some length—something that I can now spare noble Lords—about the serious problems arising from Clauses 51 and 52 of the Bill on contempt, which, although crafted with the best of intentions, raised profound implications for freedom of expression and the public’s access to information. Instead—duly declaring my interest as director of the Telegraph Media Group—all I have to do is warmly to welcome the Attorney-General’s decision to drop these clauses from the Bill, following a full and frank consultation with media organisations, including the Newspaper Society, the Media Lawyers Association and the Society of Editors, and to praise him for listening to the arguments made, including those of the Joint Committee on Human Rights.

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I should add that the whole area of jurors’ potential access to digital archives, which was at the root of those clauses, is of course one that needs to be treated with the utmost seriousness. It seems to me that Clauses 54 to 58 on juror research are a sensible and proportionate way to do that in an online age, as was said by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I should add that the media, too, maintain a great deal of vigilance in this area. All mainstream media organisations take the greatest care, when criminal proceedings become active, not to put material on the front pages and their websites, where such material could create a substantial risk of prejudice. That highly effective system, working alongside the new offences created in the Bill, should serve well the interests of justice, which is our primary concern. That comes in at just over one minute.

7.23 pm

Baroness Thornton (Lab): My Lords, I am sure everyone in the House will be most grateful to the noble Lord, Lord Black, for that intervention. I fear I am not going to be quite so brief. I will address Clause 28 of the Bill, concerning the possession of pornographic images of rape and assault by penetration. I will support my noble friends Lord Beecham and Lord Kennedy throughout the passage of the Bill.

The Bill amends Section 63 of the Criminal Justice and Immigration Act 2008 to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. Possession of such pornography is an existing criminal offence in Scotland. We on these Benches welcome the Government’s intention to extend the extreme pornography offence. I wish to thank Professors Clare McGlynn and Erika Rackley of Durham University for all the research they have done and the excellent evidence and briefs they have prepared at every stage of the Bill. I also thank End Violence Against Women and Rape Crisis South London for the research they have carried out and the work they have done in their campaign to ban rape porn, which involved writing to the Prime Minister in June last year. I will quote some of this letter, which states:

“The vast majority of images depicting rape are lawful to possess, although they are banned in Scotland under its Extreme Pornography legislation”.

It goes on to say:

“We are talking about sites that explicitly advertise sexually violent content and with titles such as ‘Father Raped Drunk Daughter’ and ‘Incest With Daughter at Family Cabin’”.

Fifty of the top accessible rape porn sites can be found through a Google search. Some 78% advertise rape content of under 18 year-olds—in other words, schoolgirl rape. Some 67% advertise rape content involving knives and guns; 44% advertise rape content involving incest; and 44% advertise rape content where the woman is unconscious, drugged or semi-conscious. Of those being assaulted, 100% are female; 82% of perpetrators use restraint by force; 65% of the women express pain; and 71% show signs of visible distress.

The Government have a coherent strategy on violence against women. In the Bill they recognise the failure of the current law to take a strong stand against the

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normalisation of sexual violence. Indeed, the Joint Committee on Human Rights says in its report on the Bill:

“We welcome, as a human rights enhancing measure, the provision in the Bill to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. We consider that the cultural harm of extreme pornography, as set out in the evidence provided to us by the Government and others, provides a strong justification for legislative action, and for the proportionate restriction of individual rights to private life (Article 8 ECHR) and freely to receive and impart information (Article 10 ECHR)”.

None the less, criminalising the possession of extreme pornography is a serious matter. Legislative action and any potential restriction of an individual’s rights under Articles 8 and 10 must be taken only if we can be certain that there is sufficient justification. Our liberal democracy rightly champions the values of equality and dignity, which are directly challenged by much violent pornography, especially rape pornography, thus demanding regulatory action. Surely the law has a precautionary role to anticipate, preclude and counter the risk of harm to society and individuals.

There has been in the past a demand for evidence of direct causal links between pornography and sexual violence. I think it is now accepted that that is oversimplistic. Understanding the drivers that lead to the commission of sexual offences is extremely complex and cannot be reduced to simple explanations. Challenging and seeking to prevent sexual violence will require a multifaceted approach, including challenging the normalisation of sexual violence through pornography.

The argument is not that the person who views extreme pornography, such as pornographic images of rape, will then go on to commit rape: rather, it is that the proliferation and tolerance of such websites and images, and the messages they convey, contribute to a climate in which sexual violence is condoned and seen as a form of entertainment. Rape pornography sustains a culture in which a “no” to sexual activity is not taken seriously. It promotes the myth that women enjoy being coerced into sexual activity, and that they enjoy violent, non-consensual sexual activity. The cultural harm posed by such depictions is a strong justification for legislative action and for the proportionate restriction of an individual’s rights.

All this was recognised in the United Nations fourth World Conference on Women report, which refers specifically to depictions of rape as contributing to the context of continuing violence against women. It states:

“Images in the media of violence against women, in particular those that depict rape or sexual slavery as well as the use of women and girls as sex objects, including pornography, are factors contributing to the continued prevalence of such violence, adversely influencing the community at large, in particular children and young people”.

This is also a culture in which, as research for the Children’s Commissioner suggests, young children are turning to pornography for guidance on sex. They are engaging in risky behaviour as a result of viewing pornography. They are uncertain about what consent means and are developing harmful attitudes towards women and girls.

That does not mean that there are not areas which we might hope to explore during the further stages of the Bill in relation to this clause. The first is whether

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there should be the inclusion of a provision stating clearly that the “realistic” portrayal of acts in question refers to both real and simulated images. We will suggest that we may need an amendment to clarify that exactly. An amendment to this effect was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in the light of an explanation that the Bill’s Explanatory Notes would clarify that the offence,

“would cover both staged and real depictions of rape or other penetration”.—[

Official Report

, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]

This may not be adequate, and I would appreciate some clarification, which might appear on the face of the Bill.

Secondly, we might consider the inclusion of a provision requiring reference to be made to the context—the description, sounds and narrative—of the image when determining whether it is one of rape. The context of an image is valuable in determining whether pornographic images are “extreme”. Simulated images of rape are widely available on free-to-access pornography websites. The images are often accompanied by banners and text which glorify rape and sexual violence: “These girls say no but we say yes”; “See what happens when men lose control … whether she says yes or no … Damn, the guys enjoy a ‘no’ more”, for example. The narrative of the story similarly conveys such meaning, as does the soundtrack. This contextual material makes it clear that the image is intended to be of rape and other non-consensual sexual activity. The non-consensual aspect, or what makes an image one of rape, is therefore clear from the overall context.

The Criminal Justice and Licensing (Scotland) Act 2010 includes a provision to ensure that the context of the image—the descriptions or sounds accompanying it—is relevant to deciding whether an image is extreme. This ensures that simulated images of rape come clearly within the remit of the legislation, whether or not the act was itself consensual—that is, whether the actors in the image were consenting.

Thirdly, we need to think about whether we clarify the defence of “participation in consensual acts”. The target of the extreme pornography legislation is not, and should not be, private depictions of consensual sexual activity. Consideration might be given to clarifying the scope of this defence so that it permits the possession of images which are taken of those participating in consensual acts and which are for private use only.

We might also have the inclusion of a “public good” defence. Section 4 of the Obscene Publications Act 1959 includes a defence where the material in question is for the public good. The absence of a “public good” defence in the extreme pornography law reinforces the fear that the provisions could be used to criminalise the possession of legitimate works of art, film and such-like. The introduction of a “public good” defence might demonstrate that there is no intention of bringing educational, legitimate artistic or similar works within the scope of the legislation, and it would help to ensure that only harmful material is covered by the provisions.

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Your Lordships’ House may also wish to consider the issue of an image being obscene. The current law provides that for an image to be extreme, it must be one which is,

“grossly offensive, disgusting or otherwise of an obscene character”.

The use of the term “obscene” has long been criticised on the basis that it is typically deployed to catch material which is not only harmful but causes offence or disgust. I would appreciate a discussion on that because I am not clear whether that is an expression that we should continue using.

On the other hand, my honourable friends Diana Johnson, Helen Goodman and Dan Jarvis in the Commons brought forward an amendment which used that description. They proposed it in response to the fact that the Prime Minister has promised to equate online and offline restrictions to regulate pornography. It was a promise that we in the Opposition welcomed and we would like to see it implemented. We think that the Government’s proposals in this Bill are a welcome step forward, but they are quite a small step forward and we would like further clarification.

The Government’s proposal is to ban the possession of pornography which is deemed to be,

“grossly offensive, disgusting or otherwise of an obscene character”,

and a realistic depiction of rape or assault by penetration. Both elements of this test are complex and open to wide interpretation. Therefore, we may propose an amendment which leaves in place the first part of this test and replaces the second part with the description of rape employed by the British Board of Film Classification—that is, content depicting,

“sexual activity which involves real or apparent lack of consent. Any form of … restraint which prevents participants from indicating a withdrawal of consent”.

This simplifies the law in two ways. First, it makes it clear that we are criminalising the possession of porn depicting rape scenes, even if they are staged. Secondly, our amendment would ensure that content was banned if it showed sexual assaults and maybe even rapes but not the act of penetration. Has the Minister had any discussions with the British Board of Film Classification on this matter? I should say that I intend to invite the board to come to the House to discuss these matters with any noble Lords who may be interested.

I am looking forward to the discussions and I am very grateful to the Minister for agreeing to see me to talk about these matters.

7.36 pm

Lord Woolf (CB): My Lords, when I was a relatively young judge, a long time ago, and I had to travel on judicial business, it was suggested by the then Lord Chancellor’s Department that I should travel under a nom de plume for my safety. It was suggested that Mr Sheep would be an appropriate name. I am afraid that I have reluctantly come to the conclusion that, as regards the rule of law, the Lord Chancellor, Mr Grayling, is showing signs of becoming a wolf, so far as clothing is concerned, rather than a Lord Chancellor. The judiciary, I fear, may be the sheep. I hope that he is not doing this deliberately. I believe that he is sincere in his many protestations that he is seeking to fulfil his oath

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and his special statutory responsibilities, but he has to be judged by his actions, to some of which I am about to refer, as well as his words.

Of course, if the Minister were able to drop Part 4 from the Bill, I could compete—just—with the noble Lord, Lord Black, but there is no sign of that yet. I should make it clear that there are aspects of the Bill that I welcome. There are others about which I have reservations, but it is Parts 4 and 5 that I am really concerned about. They have to be considered against the role of judicial review in our judicial system. I therefore disclose my joint editorship of De Smith’s Judicial Review and Zamir Woolf on declaratory relief. Both volumes make it clear why what is being proposed is contrary to the rule of law. It has been suggested that what is proposed would undermine confidence in the judges and that it might be inspired for that purpose. Again, I hope that that is not the case. However, that might be understood if I explain judicial review in a little more detail than has happened hitherto. I have had a unique opportunity to be involved in the procedure.

The procedures—not the task of a judge scrutinising the Acts or the Executive—go back to 1978, when I had just become a High Court judge after being the “Treasury Devil”, as my noble and learned friend Lord Brown was subsequently. Chief Justice Widgery gave me, together with others, the task of devising a new procedure of judicial review. A handful of nominated judges, of whom I was one, were given the responsibility of hearing these cases in accord with the new procedure. Judging by the number of cases heard, it was a great success. As Lord Widgery said, if you provide a motorway, the public will use it. The old procedure did have advantages until it was swamped. It provided protection for the Executive as well as the public, but a new procedure was desperately needed. The advantages for the public were that judicial review was a means by which their rights could be vindicated, but there was also protection for the Executive. This was due primarily to the requirement for leave to bring prerogative writs, which was adopted into judicial review, and to its discretionary nature, which gave judges powers to mould the procedure so that it would fit the needs of different cases.

The procedure was expeditious because it did away with the need for oral evidence; a case could be dealt with on the papers. Discovery was usually unnecessary because at every stage the procedure gives judges a wide discretion. That is needed. The judge can tailor the procedure to meet the case. It is a remedy of last resort and it cannot be used if there is another alternative. If an application serves no purpose, it is dismissed at the outset. It has been admired by many jurisdictions, but not widely adopted because a requirement of leave would be regarded by many of them as being unconstitutional. In these respects, judicial review has always been tilted against the citizen in a way that other litigation is not. This was done deliberately because of the recognition of the need to protect the Executive. After all, it is the Government’s job to govern.

I have no doubt that if judicial review had not been such a success, there would have been a much stronger movement in this country for an entrenched constitution. It is the discretion of the judges which means that

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judicial review is at the very heart of the rule of law in this country. This does not mean that the procedure cannot be amended. Of course it can, and it has been amended regularly over the years, including amendments for which I should take some responsibility, and others for which the noble and learned Lord, Lord Brown, should take responsibility. However, it means that if you are going to interfere with the procedure, you must be sure that you understand the danger of the unintended consequences that could result from your actions.

I draw attention here to what has recently happened to legal aid for judicial review, which we have already heard about. If the Government had understood judicial review, they could not possibly have brought in the changes to judicial review legal aid that they have. It is a procedure that is designed to be used by lawyers; it is not one that is designed to be dealt with by individuals acting in person. I fear that judicial review will be less efficient and more expensive because of the action the Government have taken in regard to the provision of legal aid.

I come to the proposals set out in the Bill. They interfere with the ability of a judge to provide, so far as is practicable, a level playing field. So far as it is practicable, the needs of the Executive and of the public are served. There are conflicts, and it is therefore essential that judges should hold the ring. It is quite impossible to anticipate what the cases that come before the courts will require, but the procedure is both wide and flexible. I find it very difficult to understand what possible reason there is that is capable of being substantiated to justify what is set out in Part 4 of the Bill. I fear that it is due to ignorance. That is not an excuse, but it underlines the importance of the need to understand what you are doing. Changes are being made with regard to cuts in legal aid because it is now appreciated that they will not work. I hope that there will be second thoughts on Part 4.

I turn briefly to the statutory provisions. Clause 64 states that the judge “must” refuse leave. That is wholly inconsistent with the requirements of discretion. The present law uses “may”, and there is a world of difference. Under Clause 64, information on financial resources has to be provided by applicants. That is a totally novel idea. As far as I am aware, in no other area is such an imposition put on an application for judicial review. It is just unacceptable. It is a barrier that is out of accord with the rule of law.

Clauses 66 and 67 deal with costs where a party intervenes. Sometimes, but not in many cases, it is very useful for there to be interveners. Under the provisions here, you will not be able to receive any assistance from interveners.

Clauses 68 and 69 deal with capping the liability of an unsuccessful litigant to pay costs. These provisions have been explained very ably by the noble Lord, Lord Pannick, and others. Again, it is an effort by the judges to obtain a level playing field. It is known that applications for judicial review that should be heard in the public interest will simply not be heard and will not come before the courts, to the disadvantage of the public, if litigants have to pay costs they cannot afford. The courts look into the matter and put a restriction on the level of costs for which a litigant is liable so that

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they have confidence to move forward. However, to do that after the permission stage is pointless because it will never get to that stage. I am at a loss to understand how that could have been suggested.

One of the reasons that has been put forward as a justification for the provisions to which I have referred is that too many cases are going to judicial review. I have to tell the Minister that the number of cases is due largely to incompetence on the part of the Executive and other public bodies. If they did their job properly, there would be no need for judicial review. One of the great virtues of judicial review is that it sets standards. Public servants have to realise that they cannot take short cuts. There was a time, when I was directly involved in these matters, when the standards of the government legal service were exemplary. I am afraid that those standards have dropped through lack of resources and because, unfortunately, civil servants are moved too frequently. In the old Lord Chancellor’s Department, they would remain for the duration of their career. That may not be appropriate for other departments, but it had considerable virtue in the Lord Chancellor’s Department.

I suggest that there is really only one action that the Government can properly take in this case. They should take Part 4 away and look at it again. It should cease to be part of the Bill. If it remains, it will be a blot on the reputation of this Government in terms of their commitment to the rule of law. They should realise that. They should realise that these provisions have been strongly criticised by the judiciary and in this House. Part 4 really is not something that should grace the statute book.

7.49 pm

Lord Carlile of Berriew (LD): My Lords, it is always a great privilege to follow the noble and learned Lord, Lord Woolf. If ever a wolf showed that he was not a sheep but how to bite with gentle ferocity it was tonight in this House.

My verdict on the Bill is that there is much to support but possibly even more to amend. It is a matter of concern that a Bill has arrived from the other place in such poor order requiring so much amendment. I support in general terms the powerful and excellent speech of my noble friend Lord Marks of Henley-on-Thames and the persuasive remarks of the noble Lord, Lord Pannick. I want to concentrate on two aspects of the Bill that have caused widespread concern. My first point relates to the Bill’s provision for secure colleges, which has been widely discussed, but I want to pick up on a couple of specifics.

I applaud the reduction in the number of minors held in custody in recent times and the work of the Youth Justice Board under the chairmanship of Frances Done. I look forward to an equally fruitful period under my noble friend Lord McNally, whom I am delighted to see in his place and with whom I, along with many others, have already had discussions. He is showing great enthusiasm and a huge appetite to learn about his new post.

My observation during my period as president of the Howard League for Penal Reform persuaded me beyond any doubt about the important role of education

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within the custodial environment. I will never forget the maths certificates, all at highest grades, that I saw on the wall of a 17 year-old prisoner. When he informed me of his wish to be a maths teacher when he was released and able, as he hoped, to go to university, I asked him, “How was your maths when you were at school outside this place?”. His reply was, “I never went to school, sir”. He had been the beneficiary of excellent education, not on a large scale, but in a targeted way, in a custodial environment where it just so happened that the education was extremely good, at least for him. I agree entirely with my noble friend Lady Linklater that small institutions are best equipped to deal with the multiple needs of young men such as the one to whom I have referred. Indeed, I would also cite the experience and the excellent successes of the now sadly defunct Peper Harow Foundation, which achieved much in the same context and I know is well remembered by a number of Members of this House. I hope that the young man to whom I have referred has now found his true vocation, which was started through good education in custody, and has gone on to university and become a maths teacher.

I absolutely agree with the Secretary of State and my noble friend the Minister this evening that there should be a strong focus on education in custody. However, the cohort of children in custody has complex issues and needs. These were well described by the noble Lord, Lord Ponsonby, and I do not propose to repeat what he said. But what is proposed in the Bill needs to be examined in relation to two particular issues. The first is the size of the institution and above all the fracture from home that such a large institution is likely to cause, by definition, by bringing people possibly hundreds of miles from their homes. The second is the provision for physical restraint as it is described for good order and discipline.

The Government’s commitment to a large institution is, in reality—this is clear from the papers—an economic decision, not one related to the needs of the children in custody. Real concerns have been expressed to us all by many experts about bullying, safety and, above all, resettlement from a large institution distant from home. For this group of offenders, one size simply does not fit all.

Restraint is an extremely important issue, which is dealt with with extraordinary superficiality in the Bill. In 2006, with others, I produced a report for the Howard League on the use of physical restraint on children in custody. It was quite evident that the rules varied from institution to institution and that the techniques for the use of restraint in some places were violent and relied on pain compliance and in others were quite different. What was absolutely clear was that restraint was very rarely needed. In the best institutions, compliance could be obtained by de-escalation techniques, as I think they are generally called—in other words, sitting down and taking the time to talk to the young person concerned about why he or she had kicked off and how the problems could be resolved. That technique leads to a constructive outcome.

The use of pain compliant violence and other forms of physical restraint leads to resentment and trouble in custodial institutions. There was clear evidence when

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we were doing the Howard League report that kicking off and being restrained was almost a badge of office for young people. It is asking for trouble to allow private sector institutions to form their own rules for the use of restraint. It is just too vague to be credible and it will lead to numerous cases in the courts for damages and, if it is possible, some judicial reviews.

Clause 67, too, has been addressed by a number of Members of your Lordships’ House. It deals with the proposal to make interveners liable for costs arising from their part in public interest legal challenges. I agree entirely with the noble Lord, Lord Pannick, that this proposal is not necessary. The courts already have adequate powers to refuse an application to intervene or penalise inappropriate behaviour by interveners through costs actions. It rarely happens. I have not been able to find a case in which it did happen, because on the whole interventions are constructive. Indeed, the proposal is counterproductive. It will result in deterring parties from intervening, depriving the High Court and the Court of Appeal of important legal and factual information that leads to the right decision. In some of these public interest cases, it is not a game. These are important cases and what matters is doing right to citizens and of course to the Government.

The role of interveners has been praised on many occasions. The noble and learned Baroness, Lady Hale, said in 2013 that the more difficult the issue,

“the more help we need to try to get the right answer”.

She described the potential for interventions to be “enormously helpful”. The noble and learned Lord, Lord Hoffmann, in the case of E v Chief Constable of the Royal Ulster Constabulary in 2008, explained that permission to intervene is given,

“in the expectation that their”—

the intervener’s—

“fund of knowledge or particular point of view will enable them to provide … a more rounded picture than it would otherwise obtain”.

Interveners add value to the court. They provide the sort of analysis that sometimes is not readily available to the party, such as international comparison. We should remember that it is not only NGOs that intervene; government departments intervene frequently in judicial review cases, principally with the good purpose of protecting the legislation and the policy for which they are responsible. For example, in the case of Yemshaw v Hounslow London Borough Council in 2011, a case that went to the Supreme Court, the Secretary of State for Communities and Local Government intervened in support of a wider definition of domestic violence.

Clause 67 makes sweeping changes to interventions in judicial review cases. It appears to require the court to order that an intervener—and this is incomprehensible to me—must pay the other parties’ costs arising from the intervention. Where another party applies for such an award to be made, the court will have discretion to depart from this rule only in exceptional circumstances. That is absurd, especially when you consider that many interventions are made in writing or by short submissions to the court. The inevitable consequence of this is that charitable and not-for-profit organisations

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will no longer be prepared to provide their expertise to assist the court in cases of wide public importance. How could trustees reasonably agree to support an intervention when it could result in losing tens of thousands of pounds or more in costs, jeopardising, in some cases, the existence of small charities?

The senior judiciary, of which we have some very distinguished representatives in this House, some of whom have spoken tonight, has spoken out this year in relation to these proposals. It said:

“The court is already empowered to impose cost orders against third parties. The fact that such orders are rarely made reflects the experience of the court that, not uncommonly, it benefits from hearing from third parties. Caution should be adopted in relation to any change which may discourage interventions which are of benefit to the court”.

There is no need for this new proposal. I agree entirely with the noble and learned Lord, Lord Woolf, that the Government should take this proposal back to the drawing board. The court already has wide powers to penalise parties, including interveners, who act irresponsibly or to award costs against interveners who play a leading role. There is no problem. The Government are creating a problem when it does not exist and does not require a solution. In your Lordships’ House, we can ensure that that consequence does not follow.

8.01 pm

Lord Ramsbotham (CB): My Lords, I begin by assuring the noble Lord, Lord Carlile, that Peper Harow, in the name of Childhood First, is alive and well. Indeed, my noble and learned friends Lord Woolf and Lady Butler-Sloss and I have the honour and pleasure of being patrons of the organisation.

Lord Carlile of Berriew: I apologise to the noble Lord. I remember it being burnt down and have not kept up with developments since.

Lord Ramsbotham: The house itself was burnt down, but the organisation is functioning in smaller houses, which is much more effective than having one large house.

I propose to speak only about Part 2 of what was already a vast Bill before other clauses were added during its passage through the other place. That is not to say that I do not have concerns about Clauses 1 to 5, which will add significantly to the work of the already overstretched Parole Board, about Clause 6, which appears to be a badly rushed measure on which the Minister in the other place was unable to provide information, either about its projected cost or its alleged benefits, or about Clauses 7 and 8, about which there must be doubt because the impact assessment seems to ignore the inevitable number of breaches of supervision by short-term prisoners, discussed many times during the passage of the Offender Rehabilitation Bill. I leave Part 4 to my noble and learned friends with great confidence, enhanced by their contributions to today’s debate.

My concerns about Part 2 began with the Government’s published response to the consultation on Transforming Youth Custody, in which I was disturbed both by the lack of detail about the proposed secure college and

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the phrase in the final paragraph of the ministerial foreword, signed by the Secretary of State and the Deputy Prime Minister,

“we are committed to delivering at pace”.

That suggests that this is a pet project of the Secretary of State, which he is determined to push through as quickly as possible whatever anyone says. My concerns were further fuelled by three things that the Secretary of State said at Third Reading of the Bill in the other place. First, he said:

“We are not a Government who legislate without taking into account the views of Parliament”.

That claims sounds a little hollow when I recall the deliberate denial of parliamentary scrutiny of the reordering of probation. Secondly, he said that,

“the rules that underpin the secure college provisions will be subject to public consultation. They were published during the passage of the Bill to benefit from the wealth of expertise within the youth justice sector”.

Bearing in mind their importance, as mentioned by the Minister, it is essential that this House sees and scrutinises those rules. I therefore ask the Minister why they have not been available to the House before we start work on the Bill. Thirdly, he said:

“I urge the Opposition to think again before they play politics with the future of young people”. [Official Report, Commons, 17/6/14; cols. 1070-71.]

Like many other noble Lords, I welcome the Government’s stated ambition of creating secure educational establishments where core learning skills, vocational training and life skills will be the central pillars of a regime focused on educating and rehabilitating young offenders. I also welcome the acceptance of the measures introduced by the Children and Families Act for the treatment of those with special educational needs. As an independent Cross-Bencher, my opposition to this proposal is nothing to do with party politics, but entirely based on my practical experience as Chief Inspector of Prisons, when I inspected every young offender institution, and many secure training centres and secure children’s homes, in England and Wales. I found good establishments and bad establishments. What united the good ones was that their governors were trying desperately to achieve what the Government state to be their ambition, while regretting that their attempts were hampered by a lack of resources, including time—the average length of sentence being a bare 78 days. My inspection experiences and my subsequent involvement with the youth justice system lead me totally to disbelieve the maths of the Government’s claims and to ask the Minister: first, whether there are any maths; secondly, on what they are based; and thirdly, why they have not been made available for us to scrutinise.

Having seen many wise, dedicated and experienced governors try and fail to squeeze more out of their pint pots, I have to admit that what I dislike most about this proposal is the presumption, based on no evidence, that private sector companies working for profit can come in and do what experienced professionals have failed to achieve, in larger establishments, with larger catchment areas and at less cost. Such a presumption suggests that no one has worked out the cost of essential custodial educational staff/offender ratios, because, if they had, they would have realised that the

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cost of ensuring there are sufficient skilled custodial staff is bound to have an impact on the provision of purposeful activity and vice versa. The risks that private sector companies take with staff numbers in adult prisons are simply not acceptable when they are responsible for safeguarding this vulnerable age group.

The proposal also confirms that pace has encouraged the rejection of the unanimous advice from experts that small establishments are far better and safer if anything is to be achieved with this particular group, and for the need to preserve the principles of maintaining closeness to home, development of good family contact and links to the local authorities of children in care. If pace means commissioning £85 million of limited funding on an unsubstantiated proposal before it has been scrutinised and approved by Parliament, without knowing whether it is possible to implement what is proposed, it is better described as playing with the future of young people.

The Minister said that the commission to build would not be confirmed unless and until the Bill receives Royal Assent. I submit that it is bordering on contempt of Parliament for the Government to announce the award of the £85 million pathfinder contract to Wates to build what they describe as a purpose-built 320-place secure college on a site at Glen Parva in the East Midlands before the Bill has completed its passage through Parliament and without any idea about the requirements of the educational contract whose delivery the build is meant to facilitate. Far from it being designed to satisfy secure college aspirations, Wates has been commissioned to build what was agreed for a young offender institution on the same site in 2009 but subsequently not built. The Minister’s mention of Titan prisons reminded me that it was Wates that told me of Jack Straw’s infamous direction that they were required “to hold as many people as possible as cheaply as possible”. I hope that the same has not been directed by the Secretary of State in connection with the proposed secure college.

Other noble Lords have mentioned paragraph 10 of Schedule 6, which allows staff to “use reasonable force” to ensure “good order and discipline”. I fail to see why this paragraph is necessary, because an independent review of restraint in juvenile secure settings chaired by an eminent adolescent psychiatrist produced admirably clear minimum rules that were accepted and published by the previous Secretary of State. Presumably they are not tough enough for Mr Grayling. I could go on but I will reserve my fire for Committee.

Before that I would like to make an appeal to the Secretary of State through the Minister. Bearing in mind that, thanks to the welcome reduction in numbers, largely achieved by the efforts of the Youth Justice Board, the nature of the child prisoner population has changed from its far wider representation into being a toxic mix of the most violent, troubled and damaged. That change gives him a perfectly valid reason for dropping his proposal and putting it into the aspirational basket. All would not be lost because he could then task the newly appointed director of young offenders, if paragraph 20 of the Government’s response to the consultation is to be believed, to conduct a deliberate and costed examination of what improvement and

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change was possible with the available resources, including quantifiable evidence to support his claim that secure colleges will reduce reoffending rates and show how such a reduction will be achieved in practice. Meanwhile, in the absence of proof, it would be irresponsible of the Government to ask this House to rubber stamp this proposal and responsible of them to prove that I am wrong by producing the evidence that justifies the pace with which they are pursuing their proposal with unsubstantiated ambition.

8.11 pm

Lord Bach (Lab): My Lords, my remarks will be directed to Part 4 of the Bill. However, I cannot resist noting how it was exactly this type of Bill—perhaps best described as a Christmas tree Bill which is also introducing new offences—which was the subject of so much stern criticism from the then Opposition in the previous Parliament. Now, of course, the present Government commend the good sense of putting so many disparate elements—I doubt we have had them all yet—into one Bill and then, conveniently, adding more and more offences to the list. One perhaps should not be surprised by this change of heart, but the contrast in attitude is striking.

As to Part 4 and its attack on judicial review, we should not be surprised at all. It is no use claiming, as the Minister did, that these proposals are technical—he did not use the expression de minimis, a mere tidying-up operation, but that is what he perhaps meant—and should be seen just for themselves. Even if they stood alone, they are much more serious than that.

However, the provisions do not stand alone. They are the latest instalment in a series of provisions that are consciously and deliberately undermining our precious system of civil justice and, thus, every citizen’s right to access justice. I agree with what the right reverend Prelate the Bishop of Oxford said in his remarks.

Let us begin with the Government’s first step, taken days after they came to power, to administratively cut back the number of cases in which civil legal advice was available. The numbers declined in the first three years from 485,000 to 293,000. Then, of course, came legislation in the form of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, LASPO. This removed legal aid from the majority of social welfare law advice and, since its implementation exactly 15 months ago tomorrow, the results, frankly, have been devastating—as the Ministry of Justice’s own recently published Legal Aid Statistics in England and Wales 2013-2014 show in painful detail.

It is ironic in the extreme today that, looking back, the underlying message from government Ministers while LASPO was being debated was that Parliament should pass those provisions because there were two safeguards that would protect the poor claimant. One was exceptional cases funding. Noble Lords know now that that is a farce. Of 1,320 non-inquest applications for exceptional funding last year, how many were granted? Sixteen—not one in the field of welfare benefit; not one in the field of housing. Those statistics come from the document to which I referred a moment ago.

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The other safeguard, we were regularly told, was judicial review, which was safe in the Government’s hands. Even if there was no legal aid funding any more for benefit, debt or employment advice, there was always judicial review available to all when appropriate and when needed. This House voted down Part 1 many times. It did not like what the Government were doing but eventually it allowed the Government their way. Is it too fanciful to think that one of the reasons it did this was because of the promise of Ministers relating to judicial review?

As the right reverend Prelate the Bishop of Oxford said, eight days after Royal Assent the first judicial review consultation was announced. Of course, LASPO regulations have been debated in your Lordships’ House over the months. The Government were defeated on one but did absolutely nothing about it. Of course, the inevitable attack on judicial review has begun and is now well under way.

The Lord Chancellor’s accusation that judicial reviews are the preserve of left-wing pressure groups, and other such nonsense, has set the background for the scene. Then came the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014, which by negative resolution, unbelievably, radically altered the long-standing principle by saying that unless permission is given, legal aid practitioners will not be paid—unless of course the legal aid authority agreed, which was not likely to happen.

With this one move, as was strongly argued in this House by Peers from across the Chamber on 7 May last in debating the regret Motion of the noble Lord, Lord Pannick, the Government have just changed the nature of judicial review. It will without doubt mean that some claimants, often poor and sometimes disabled, who have a good claim will not be able to find a lawyer to represent them. As the Joint Committee on Human Rights put it,

“the uncertainty and financial risk for legal aid practitioners would affect both the number of practitioners willing to carry out public law work and the kinds of cases they would be willing to take on in future”.

Our own House of Lords Secondary Legislation Scrutiny Committee was critical, not least of the level of uncertainty.

That brings us to Part 4 of the Bill. The proposals in Part 4 cannot just be viewed in isolation; they are part of a process that began when this Government came to office and will reach its nadir when the appalling residence test regulations are debated shortly in both Houses. Why have the Government done this? It was not in the manifestos, nor was it part of the coalition agreement, that our system of civil justice should be dismantled so that instead of remaining a gem in our legal crown, it is something which we may soon become ashamed of.

Many noble Lords have linked the judicial review proposals in this Bill with the earlier legal aid proposals: my noble friend Lord Beecham did so in his excellent speech, as did the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Campbell of Surbiton, the right reverend Prelate and the noble Lord, Lord Low. They all linked judicial proposals with earlier legal aid proposals, as did the Bingham Centre in a very telling paragraph. It said:

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“The relationship between the judicial review and legal aid proposals is important because it goes to the right of access to justice, which is a key element of the rule of law and which is acknowledged both at common law, as a constitutional right, and by the European Convention on Human Rights. It is well-recognised that the right of access to justice is capable of being curtailed or infringed not only directly, but also by placing recourse to litigation beyond individuals’ financial means. It is equally axiomatic that whatever other valuable mechanisms may exist for protecting the rights and interests of individuals, it is independent courts of law, in a democracy founded upon the rule of law, that stand as the ultimate guarantors of basic legal rights”.

As for judicial review itself, it is worth quoting the noble and learned Lord, Lord Neuberger, President of the Supreme Court. In his 2013 Justice annual lecture, he said on that occasion:

“The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive—central government, local government, or other public bodies”.

He went on:

“While the Government is entitled to look at the way that”,

judicial review,

“is operating and to propose improvements, we must look at any proposed changes with particular care, because of the importance of maintaining JR, and also bearing in mind that the proposed changes come from the very body which is at the receiving end of JR”.

Frankly, there is no serious commentator who supports the Government’s proposals for judicial review. Judicial review is a part of our law well worth defending and it falls on this House to do so.

8.22 pm

Baroness Stern (CB): My Lords, I shall concentrate my remarks on the proposal for the establishment of secure colleges. Before that, I turn briefly to the excellent comments made by the noble and learned Lord, Lord Lloyd of Berwick, who deserves huge admiration—he certainly gets that from me—for his determined pursuit of the issue of life-sentence prisoners and the overuse of that sentence. He suggested that I might have some figures about the use of life sentences in England and Wales, compared with other European countries. I would not wish to let him down, so here are the figures. Per 100,000 of the general population in 2012, the Netherlands had 0.18 life-sentence prisoners, France had 0.77, Sweden had 1.63 and Germany had 3.05. England and Wales had 13.57 without indeterminate sentences; with indeterminate sentences, they had 24.31. As I recollect, the noble and learned Lord and I have said in past debates that there is a peculiar addiction to indeterminate sentencing in England and Wales, and that seems to be continuing.

I now move on to secure colleges. I begin by putting this proposal in the context of youth justice policy. For many years, policy on children and young people in trouble for whom loss of liberty has been deemed to be appropriate has been marked by a range of experiments. These experiments, introduced by enthusiastic government Ministers of all parties, have an aura of “Now at last we’ve found the answer”. The treatment of adults in prison has barely changed in essence for a century, but the treatment of young people changes according to enthusiasms that can be very seductive at the time.

It may be that this happens because there is a strong feeling, which I share, that the number of young

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people involved in delinquency is so small, and the benefits of turning them from a life of crime so great, that an answer is well worth finding. It is thought that there must be something new that would work. A century ago, a small village in Kent called Borstal became widely known because reformers had the idea of putting young people in trouble with the law into an institution modelled in every way on a public school. The wings were called houses, the assistant governors were called housemasters and there was even a matron. The regime was intended to be kindly and reformative, with teachers, a lot of sport and good relationships between staff and prisoners. It was a seductive idea, which sounded as though it should have been successful. It was not successful, and borstals are no more.

Some noble Lords will remember the short, sharp shock, a detention centre regime announced in 1979 and designed to provide a firm, disciplined, semi-military regime. It was felt that it was a good way of helping an errant teenager turn his life around. It was seductive idea that sounded as though it might work, but the short, sharp shock detention centres faded away, and they are now a small note in history.

The Minister is now trying to seduce us with the idea of secure college for 12 to 17 year-olds, starting with a 320-bed establishment in Leicestershire where, according to Clause 29, the governor will be called the principal and the deputy governor will be called the deputy principal. This establishment will be like a school and will be staffed with by people with the values of education rather than the values of incarceration. Education is very important and a basic right. Young people should have it whether they are imprisoned or not. The noble Lord, Lord Carlile, is right that it is a very good thing if a young person in prison has certificates in maths around his walls. It is a pity that he will never be able to be a maths teacher because of his convictions and his record, but education is undoubtedly hugely beneficial.

Will the secure college produce the results dreamed of? I suggest to your Lordships that it would be wise not to be too easily seduced. We heard the Minister in his fine attempt to persuade the House of the merits of the Bill. I admire his skill in this respect, but he must have suspended disbelief when he had to argue that each custodial place for a young offender costs £100,000 a year, 70% of them go on to reoffend within 12 months and, therefore, we shall set up a secure college. That is a non sequitur. There is no logic whatever in proceeding from saying, “We spend a lot; when they come out they are convicted of another offence; the answer is to spend £85 million on an establishment in Leicestershire which will, in theory, have an educational ethos”.

I should add that the Minister did not say in this House, as the Lord Chancellor said in another place, that the cost per head per year will be £60,000 and that, according to the impact assessment, the aim is to,

“reduce the overall cost of youth custody, focusing in particular on driving down the cost of the most expensive provision”.

I am very grateful to the noble Lord, Lord Ponsonby, for the research he presented to us, making it clear that

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this proposal has no logic in terms of custodial places where they are needed and in what numbers—no logic at all.

Although we spend £100,000 a year, the reason why seven out of 10 of those on whom the money is spent are reconvicted is that the money is not spent well enough to affect the deep-seated damage that most of these children and young people have suffered in their young lives. The highly respected deputy children’s commissioner, Sue Berelowitz, told the Public Bill Committee on 11 March that in all her many visits to young people in custody, she had,

“never yet met a young person … who did not come from a very troubled environment, who did not need a lot of intense support and who did not need help in forming relationships”.—[

Official Report

, Commons, Criminal Justice and Courts Bill Committee, 11/3/14; col. 6.]

She goes on to describe the best environment for such young people: a small environment where good relationships can be made between young people and staff. The noble Baroness, Lady Linklater, described exactly the sort of environment that is needed by describing to us her marvellous school where the children have to learn that they are valuable and worth something. I hope I have quoted her accurately.

This proposal takes us backwards. Thanks to the excellent work of the Youth Justice Board in recent years—I, too, warmly welcome the appointment of the noble Lord, Lord McNally, and expect great things from him—the institutions have become somewhat more child-centred and based on good relationships. To be particularly applauded is the reduction in the numbers in custody.

Before I end, there is one more matter I must raise. In this debate, we must get on the record the names of Adam Rickwood and Gareth Myatt. At this point I must pay tribute to the noble Lord, Lord Carlile, whose work to draw attention to the ill treatment of children and young people in custody has been untiring and hugely effective. Few people may now remember Adam Rickwood, except perhaps a few lawyers, judges, experts in the care of children and, I hope, some Members of your Lordships’ House. He was 14 when he died, having, as a judge said,

“the mournful distinction of being the youngest person to die”,

in custody in the UK. He died after he had been restrained by four prison staff because he refused to go to his room and had had administered a blow to his nose—a technique in use at the time to regain control by inducing pain. He hanged himself with his shoelaces from a curtain rail. The outcome of Adam’s death was the revelation that force to restrain children held in secure training centres, with the addition of inflicting pain, was being used to get young people to obey orders contrary to the secure training centre rules. Eventually the courts ruled that using force to restrain young people to preserve good order and discipline was in breach of the European Convention on Human Rights.

Let me remind the House also of Gareth Myatt, a 15 year-old boy sent to custody in 2004 for the first time. He was small for his age—four feet and 10 inches tall, weighing six and a half stone. He was restrained because of a dispute over the cleaning of a toaster.

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Three staff restrained him using force; he said he could not breathe. He became unconscious and died of asphyxia. That technique used by the staff was never used again. Following the deaths of these two children, it was some small consolation to their families that lawyers went to court and won their cases, and the methods of restraint were changed. It helps to think, after such an injustice, that at least this will not happen to someone else’s child.

I hope that the Minister has heard the contributions to this debate, about the use of force on children in detention and the need for stringent restrictions on its use. I look forward to making the Bill better in Committee.

8.35 pm

Baroness Hamwee (LD): My Lords, that was a powerful and salutary speech to have to follow.

At the Second Reading of the Serious Crime Bill, I confess that I was at a loss as to how to speak without asking apparently innocent questions as a painful way of masking criticism. That Bill is causing me relatively little anxiety. Today, winding from the Liberal Democrat Benches, I am at a loss as to how to cover even a small portion of the questions and to do justice to the large number of briefings we have all received which display considerable anxiety. Many of their points have been raised today. It is clear to me that your Lordships will do them justice during the passage of the Bill.

Like others, many of my concerns are about the risk of losing focus on rehabilitation, and of reversing progress that has been made in that area. There is also the issue of resources; that, of course, is not a novel point. There is also the evident unwillingness manifest in the Bill to trust the judiciary. Reducing judicial discretion puzzles me. If we want to make the punishment fit the crime, who is better to do so than the person who has heard all the details? I am also concerned about how much of the Bill is there to send messages. We are all aware that this becomes more strident as one gets closer to an election. I hope and believe that this House will consider that the most important thing is producing legislation where legislation is needed—legislation which works.

The House is not short of experts on judicial review and its operation, including the Minister. It is common ground that there has been a proliferation of applications for judicial review; I was interested to see that the number has remained quite steady when immigration judicial reviews are disregarded. If that proliferation is a problem, then it seems to me that the analysis of the problem should start not with the procedures but with why proceedings are thought necessary. I certainly do not want to challenge the tremendously valuable tutorials to which we have been treated this afternoon, but one of the purposes of judicial review is often to achieve transparency and clarity in Executive decision-making, as well as establishing whether there has been an error by the Government or the body in question.

I was in a debate last week on financial support for asylum seekers, a matter on which the court recently found the Home Secretary’s rationale for decision-making was inadequate. I said, and repeat, that I am sorry that the announcement of the Home Secretary’s review following that decision will be made when Parliament

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is not sitting. There might be less call for judicial review if there was less call for the Government to think again or to express their thinking clearly.

Part 4 of the Bill will be dissected and analysed and will, I am sure, have many other quite rigorous things done to it—but not just by the lawyers. These are citizens’ issues, none more so than the clauses on interveners. The NGOs have an important role and we will—or, I would like to say, we would—lose the benefit of their intervention if the clause were to remain in the form in which we have it now. I look forward to the modifications that the Minister trailed at the start of this afternoon’s debate.

There has been reference, too, to the Lord Chancellor’s powers. I can see that there may be a need to allow for tweaking if practice shows that something is not quite workable, but whether a matter is, for instance, of general public importance seems to me to come close to being a political judgment.

With regard to care workers, the clauses on which were covered my noble friend Lady Barker, I am generally sceptical of the creation of new offences when there are others that would cover the matter, but clearly this has been the subject of very considerable and careful attention. I congratulate my colleagues who ensured that the Bill deals with abuse or “wilful”—which I take to include reckless on the basis of discussions on another Bill—neglect by care workers, and I would put “care” in quotation marks in this context. We are all aware of the scandals that have come to light, though not before much suffering on the part of those who are dependent on others for their care. I am not wholly clear whether issues of whistleblowing, inspection powers and management are all adequately dealt with elsewhere. However reprehensible the actions of an individual worker, it is unlikely that there is not a management issue as well.

Like other noble Lords, I was intrigued by the provisions on “fundamental dishonesty”. I hoped that the Minister might have given us a demonstration of FE Smith’s cross-examination of the claimant, who was asked, “How far can you raise your arm?”, and then, “How far could you raise it before the accident?”—and the witness showed the court. Like the noble Lord, Lord Hunt, I am troubled about the standard of proof and whether the court can still make an award, albeit a reduced one. How does this fit with the context of contributory negligence and of utmost good faith in insurance matters? Indeed, what are the views of the insurers? Not everything is black and white, which of course is why leaving a lot to the judiciary has a lot to commend it because they see all the shades of grey.

Judicial discretion, I would have thought, should be at the heart of dealing with knife crime. The opposition of my party to the knife crime provision has been made very clear for this reason and for the following reasons: whether the threat of imprisonment is effective—a matter that has also been the subject of debate—especially when a knife is carried for protection; the likelihood of knives being passed on to young people, sweeping them into the centre of gang violence; the use of alternative weapons; the impact on stop and searches and the choice of whom to stop and search; and the sheer cost.

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As regards secure colleges and education, the demarcation point for the proposed mandatory sentence is the age of 16. Teenage boys up to the age of 18—I should say children because my noble friend Lady Linklater always reminds us that they are children—will, or again would, be affected, and this is the cohort most affected by the new secure colleges. I share the Government’s aim—of course, who could not?—of putting education at the heart of youth custody and, or maybe but, I share the huge concern of so many who work in the field that large institutions whose students, residents, inmates, or whatever we are going to call them, will mostly be 15 to 17 year-old males with all the safeguarding and other risks that this raises.

We have had detailed and to me very persuasive critiques, many of which point us to the risks to rehabilitation of the young people involved. My noble friend Lady Brinton, who wanted to be here this evening but was unable to, has reminded me that learning in offender institutions tends to focus on basic skills—although we are all well aware of literacy and numeracy issues—without any vocational context. Because of their frequent moves, young offenders do not finish courses and the new institution does not receive a proper assessment of where they are on their course. Some seem to do the same course over and over again.

Improving vocational skills levels is a key marker to reducing reoffending. One secure college will not change the culture of learning, or not learning, in custody when children are coming and going at different stages and often far from home. The Prison Minister’s view was that,

“as with free schools it will be for education providers to determine how best the educational engagement and attainment of young people in a secure college can be raised”.—[

Official Report

, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; col. 291.]

That does not fill me with confidence that the complexities have been addressed.

Then, of course, in the past few days we have heard that lights will be turned out at 10.30 pm, which does not seem to be a sophisticated, delicate, case-by-case solution. I am surprised that the noble Baroness, Lady Stern, resisted mentioning that in her explanation of how we came to have borstals based on public schools.

Finally, I was glad to hear raised by two speakers the needs and interests of children whose parent is in prison. No doubt, some of them will also be clients of the youth offender system.

Inevitably—or at least it is inevitable to me, at any rate—a Second Reading speech wants to look at what might be changed. In my case, I am afraid that it means that I present criticisms in a rather concentrated form. Other provisions of the Bill will dilute the criticisms and, no doubt, the explanations in discussions to come will dilute them further. But what bears repeating is that what is best for society’s victims and offenders is to stop crimes happening in the first place—and the best way in which to reduce crime levels is rehabilitation.

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8.47 pm

Lord Hart of Chilton (Lab): My Lords, for some inexplicable reason my name was omitted from the list of speakers for this afternoon. However, instead of commencing judicial proceedings for a review against the list-maker, I have accepted an invitation to speak in the gap, against an assurance that the Government Front Bench will not harass me if I stray slightly over four minutes.

I must disclose three interests. First, before I became a special adviser to two Labour Lord Chancellors, I was a solicitor in practice, specialising in planning and property law. Accordingly, I carried out a very large number of judicial reviews on behalf of both claimants and interveners. Secondly, I have personally been involved in judicial review proceedings in local planning matters in Suffolk, the first of which we won and in the second of which nine grounds have been found to be arguable and the case will be heard next month. I do not expect the Minister to wish me well, but I thought that I had better disclose that fact. Thirdly, until lately I was a member of the Select Committee on the Constitution.

Each year the current Lord Chancellor comes before the Select Committee on the Constitution for a discussion of current events. On 26 March, that was Mr Grayling, and one of the topics that we discussed was judicial review. The first question he was asked was: what was the problem that Part 4 of this Bill was designed to solve? He reprised his Daily Mail online article, talking about hundreds of cases becoming thousands and very naughty left-wing campaigners seizing control of the system for their own benefit. We asked him to reveal the hard data to support his allegations and he could not do so, but he repeated the number of anecdotal examples that he had trotted out in the Daily Mail, with one or two additions. However, the data do exist, and they show that the very high rise in numbers was down to asylum and immigration cases. The increase in those cases dwarfed the number of civil cases, which showed only a small percentage increase. As to the serial misuse of judicial review, personally I have never observed such a thing. I was interested to see that the senior judiciary said the same thing in its consultation response.

The permission stage in judicial review is an essential step in the process, whose object, according to the White Book, is to filter out cases that are “hopeless, frivolous or vexatious”. The small increase in the number of civil cases to which I referred may well be explained by the proper operation of the filtering process. However, even if one case goes through on an arguable basis, the substantial hearing often puts that matter right. In my experience, practitioners are well aware that hopeless cases without merit will be stopped at the permission stage, and it would of course be foolish to advise clients to incur wasted costs embarking upon misconceived litigation. Mr Grayling was asked whether he had any estimate of the reduction in the number of judicial review applications when his reforms are—if they are—brought about. He had none. Accordingly, I have concluded—as have many others, including the Joint Committee on Human Rights—that the case for these reforms has not been made.

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My second point concerns Clause 64 of the Bill—the “highly likely” test. In judicial review, the fundamental role of the court is to perform a supervisory, not an appellate, jurisdiction. Until now the courts have resisted substituting their own view of the merits of the decision-maker charged by law to make the decision. The court is concerned only to see whether the decision-maker has contravened the law by acting in excess of the powers confirmed upon them. The new concept of “highly likely” is novel and may well fundamentally alter the position. It seems to me that this new concept inevitably will involve judges departing from their traditional role; they will now have to speculate on what decision would have been made absent the defect complained of. Furthermore, the “highly likely” test is to be examined at the preliminary permission stage, which is usually a paper-only exercise, done quickly and without lawyers present. As we have heard this afternoon, the judiciary fears that the new test will lead to a lengthy dress rehearsal hearing, with the service of evidence and oral argument by lawyers. Time taken and costs incurred will inevitably increase. Accordingly, this new provision, far from improving the law, makes matters far worse and seems to me to be designed to obstruct the pursuit of judicial review. It should be completely rejected.

The third point concerns changes to the rules on costs. Because of time I do not intend to say anything about that, except that there will be many amendments and I will support them. Matters should be left to the court, which is the current position, where the judges have discretion as to the nature, extent and cost of any intervention.

I conclude by opposing these proposals. Like the noble and learned Lord, Lord Woolf, I would like Part 4 to be taken away completely. The proposals are based on inadequate evidence; they undermine citizens’ rights to fight the abuse and misuse of power; and it is quite wrong to immunise the Government and other public authorities from effective legal challenge. Judicial review is often a key source of guidance for improving policy development and decision-making in the public service. These proposals do not bring about any improvement and they certainly do not serve the public interest. It is quite the opposite: they undermine it.

8.54 pm

Lord Kennedy of Southwark (Lab): My Lords, on looking at the Bill for the first time, I think that many Members of your Lordships’ House will have been struck by the wide variety of issues it seeks to cover, not all of which seem to hang together very well. As my noble friend Lord Bach said, it is a bit of a Christmas tree Bill, on which many baubles have been hung, all of different shapes and sizes—and more and more keep getting hung on it. Generally, the Bill appears to the Opposition to be a rushed piece of legislation, and rushed legislation usually means bad legislation. It will require considerable improvement in your Lordships’ House.

I am in complete agreement with the contributions made by a number of noble Lords in today’s debate, including particularly those of my noble friends Lord Beecham, Lady Thornton and Lord Ponsonby and

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others. There are elements of the Bill we support, parts of it we think need improvement and parts of it we oppose. We support attempts properly to punish offenders. We also support keeping the public safe from the most serious and violent offenders and the provision of open and transparent justice. However, we do not support the watering down of the important constitutional tool of judicial review or the Government’s plans for a secure college.

The first part of the Bill concerning criminal justice matters has provisions we are content to support to keep the public safe. The scheme for extended determinate sentences for additional terrorist offences is such a provision. However, we have concerns about these additions and the changes to the release arrangements for people convicted of serious sexual and violent offences that are highlighted in the Government’s own impact assessment, which states that the sentencing changes will require 1,050 additional prison places, and will increase the workload of the Parole Board with an additional 1,100 hearings per year. Our worry is that the Government are not putting the measures in place to deliver the changes they want to see. These matters will require debate and probing during the Committee stage of the Bill to satisfy your Lordships’ House that the Government have their sums and thinking right.