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House of Lords

Tuesday, 9 December 2014.

2.30 pm

Prayers—read by the Lord Bishop of Sheffield.

Introduction: Lord Evans of Weardale

2.38 pm

Sir Jonathan Douglas Evans, KCB, having been created Baron Evans of Weardale, of Toys Hill in the County of Kent, was introduced and took the oath, supported by Baroness Manningham-Buller and Lord Hennessy of Nympsfield, and signed an undertaking to abide by the Code of Conduct.

Digital Technology: UK Labour Market


2.44 pm

Asked by Lord Holmes of Richmond

To ask Her Majesty’s Government what assessment they have made of new technology and the digital revolution on the United Kingdom labour market.

Lord Holmes of Richmond (Con):My Lords, I beg leave to ask the Question in my name on the Order Paper. In doing so, I declare my interests as set out in the register.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con): My Lords, digital is a major contributor to the economy. Since 2008, output for the sector has grown more than three times as fast as the overall economy. Growth is expected to continue, with a predicted 1 million new digital jobs to be created in the next decade. The Government are committed to ensuring a strong, digitally skilled workforce to meet the challenges of our digital age.

Lord Holmes of Richmond: My Lords, the digital revolution is well under way, with the potential to make the agricultural revolution and the Industrial Revolution seem somewhat small beer. Does my noble friend agree that, across the whole of Whitehall and across the whole of local authorities, we need a relentless focus on digital if we are to realise every opportunity and every job for the UK labour market?

Baroness Neville-Rolfe: My Lords, I entirely agree with my noble friend. We have made a good start with a ministerial digital task force, which shows the Government’s relentless drive. Activity under way includes even top-level support: yesterday, the Prime Minister launched the National College for Digital Skills, which will start in London next year and spread to centres right across the country. That is in addition to all that we are doing in schools, training and higher education.

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Baroness Uddin (Non-Afl): My Lords, people who are deaf or autistic may require ongoing support to access the spoken word, for example, through online captioning systems such as the one offered by Ai-Media, which improves access for people whose disabilities are not necessarily physical. How will the Government promote the take-up of innovative new technology within the Access to Work scheme for people whose challenges are not related to mobility?

Baroness Neville-Rolfe: My Lords, I agree with the sentiment of the noble Baroness’s point. We published a digital inclusion strategy in April and we are working with lots of different partners across the UK, including Age UK, which has done terrific work to help older people access the internet and get savings. This is an enormous subject, and I very much look forward to the work of the Digital Skills Select Committee on all these points.

Lord Kirkwood of Kirkhope (LD): Does my noble friend agree that central government has a cross-departmental responsibility to mitigate the risk of the future incidence of higher inequality as a result of our increasingly digital economy?

Baroness Neville-Rolfe: My Lords, I agree that we have a huge role to play. The key thing is to use the digital revolution to grow and improve the curriculum so that, for the long term, you tackle inequality and help people to access the improvements in digital that will make such a big difference to their lives, while, of course, helping those who find it difficult. That is important, as this House knows.

Baroness Lane-Fox of Soho (CB): My Lords, only 30% of small and medium-sized businesses in this country are using the web to buy or sell products online, leaving 70% of the life-blood of our economy unable to take the benefits of being online. Would the Minister like to expand on what the Government are doing specifically for small and medium-sized businesses?

Baroness Neville-Rolfe: I thank the noble Baroness for the opportunity to talk about the programme that we have set in train—the small business capability programme —which is helping 1.6 million small businesses to transact online by 2018; the work we are doing in employer-led reformed apprenticeships at every level, including the higher level; and, of course, the whole programme of reform that she has helped so much to push forward in Whitehall.

Lord Allen of Kensington (Lab): My Lords, the Prime Minister said:

“It is our ambition to make the UK the most digital nation in the G8 and it is my mission to show the world that we’re getting there”.

I ask the Minister, in the words of the five year-old in the back of the car: are we there yet? What are we doing next? What is on the Prime Minister’s wish list?

Baroness Neville-Rolfe: I always think it is important not to boast about progress, but in Europe we are widely regarded as being very much at the leading edge.

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Interestingly, on some scores, we are even doing well versus the sacred San Francisco and Silicon Valley, with London emerging as a premier location for digital entrepreneurs, people choosing London for IPOs and UK venture capital markets improving. Our programme, led by my honourable friend in the other place, Ed Vaizey, is moving forward the strength we have in digital anyway. The jobs that we are creating in this sector are growing at an even faster rate than the rest of employment.

Viscount Ridley (Con): My Lords, would my noble friend the Minister update the House on the progress that has been made with the GOV.UK website and digital government intervention, particularly the simplification and standardisation of how people access government websites? For example, passports and driving licence renewals are all getting much simpler.

Baroness Neville-Rolfe: My Lords, my noble friend puts it perfectly. All noble Lords just need to use GOV.UK to see the extraordinary improvements that have been made.

Lord Mendelsohn (Lab): My Lords, many homes and businesses still lack access to basic broadband, especially in rural communities. Despite the Government’s strategy and commitment of £1.2 billion, the programme will be completed 22 months late. Can the Minister assure us that the rural communities will not be placed at an ongoing disadvantage in the current distribution of broadband, and in any future similar plan?

Baroness Neville-Rolfe: My Lords, as someone who used to campaign for the rollout of broadband, I am glad to say that good progress is now being made in the rollout of superfast broadband. In November, 1.5 million premises had access to it, and the number of homes and premises gaining access has doubled from 20,000 per week to 40,000 per week in August. Rural broadband has had a special scheme, which has allowed an extraordinary degree of investment in some very important rural areas, including Northumberland, where I holidayed, Oxfordshire, Northamptonshire and Cumbria.

Baroness O'Cathain (Con): My Lords, this is a wonderful story about how skills will be increased, and how various businesses will have access to broadband. What about the 1.7 million people who do not have access to broadband and do not have access to a computer? The fact is, no matter how skilled they become and however many digital lessons they have, they will not be able to use those skills. Can we just have a programme for the extension of broadband so that everybody in this country has this opportunity?

Baroness Neville-Rolfe: My Lords, I have talked at length with my noble friend during the passage of the recent Consumer Rights Bill on this very issue. Of course, alternative means of access—including paper—remain extremely important.

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2.52 pm

Asked by Baroness Cox

To ask Her Majesty’s Government what is their assessment of recent developments in the Republic of Sudan.

The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): My Lords, we are deeply concerned about the ongoing conflicts in Sudan. Reports of aerial bombardments in South Kordofan and in Blue Nile, and the lack of access for the United Nations to investigate allegations of mass rape in Darfur, are especially worrying. We welcome efforts to secure ceasefires and moves towards a political solution, including the peace talks mediated by President Mbeki, and support a comprehensive, inclusive and transparent national dialogue.

Baroness Cox (CB): My Lords, I thank the Minister for her sympathetic reply. Is she aware that I have actually seen Government of Sudan Antonov bombers deliberately targeting hospitals, schools, markets and civilians trying to harvest their crops, forcing hundreds of thousands to hide in snake-infested caves, river beds and woods or to flee into exile in South Sudan and Ethiopia? According to the well respected Enough Project, such systematic attacks on civilians and the Sudanese Government’s aid blockade lay the foundation for a case of crimes against humanity by extermination. All this is happening with impunity. What actions are Her Majesty’s Government taking to challenge this impunity?

Baroness Anelay of St Johns: My Lords, the noble Baroness paints an accurate picture from first-hand experience. I respect that courageous experience. She asked about impunity. We press the Government of Sudan to hold all perpetrators of human rights violations fully to account for their actions. Impunity must not be accepted. In the United Nations Human Rights Council, we support the work of the independent expert on the human rights situation in Sudan. The UK is also a strong supporter of the International Criminal Court. We continue to call on the Government of Sudan to comply with the arrest warrants for the ICC indictees. I will be representing the UK at the next meeting of the ICC in New York later this week.

Lord Steel of Aikwood (LD): My Lords, as the Minister knows, something like 100,000 people have fled both parts of Sudan over the border into Ethiopia during the past year. What extra help are the Government giving to that Government to try to cope with the influx?

Baroness Anelay of St Johns: My Lords, we are certainly aware of the extra aid that needs to be granted to these areas. We have been aware that more than 430,000 people have been displaced. DfID estimates that it will spend a minimum of £27 million on projects in Darfur alone. That includes funding to the World Food Programme and the Common Humanitarian

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Fund in Darfur. We are urging the Government of Sudan and the Darfur rebel movements to engage fully in peace talks. We are also engaging with the difficulty of access to the two areas of Blue Nile and South Kordofan, where access for humanitarian aid is, to say the least, perilous.

Baroness Kinnock of Holyhead (Lab): My Lords, as Sudanese opposition groups are now increasingly speaking to each other and taking unified positions and many people are saying that they are now likely to welcome support and advice from the United Kingdom, and in view of the need to tackle the terrible insecurity in the region, is it not short-sighted, badly timed and very unhelpful that there have been cuts in the Sudan units in the FCO?

Baroness Anelay of St Johns: My Lords, I was able yesterday during the Question for Short Debate from the noble Earl, Lord Sandwich, in the Moses Room to put on record the fact that the Sudan unit has its resources carefully monitored. Whenever they need to be increased, they are. I gave a commitment that that careful monitoring and increase where necessary will be continued.

Lord Jay of Ewelme (CB): My Lords, what efforts are we making to work with the Government of the Republic of China, who have a huge influence on both Khartoum and Juba, to bring pressure to bear on both Governments of Sudan in order to pave the way towards a degree of stability and economic development?

Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Jay, raises an important point. Because of our cultural and historic ties with the area we have been involved in negotiations through the troika, with the United States and Norway, and had leverage through the EU. I can assure the noble Lord that we have also made representations with the Republic of China and diplomatic relationships are under way with regard to how we might all work towards peace in Sudan.

Lord Bach (Lab): My Lords, we all wish the Minister good fortune in her important task later this week in New York. An agreement was signed in Addis Ababa last week by those aiming at unifying opposition to President Bashir. It is reported that a number of those signatories were summarily arrested on their return to Sudan. What representations have Her Majesty’s Government made about this latest example of unacceptable authoritarian conduct?

Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Bach, rightly refers to the detention of opposition leaders and civil society figures who signed what is known as the “Sudan call”—the opposition trying to solidify. I assure him that we have voiced our concerns about the detention of the opposition and civil society figures and we have consistently asked for the release of political prisoners in Sudan. More than that, it is important that when people are held in the Sudan they are not maltreated.

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2.58 pm

Asked by Lord Alton of Liverpool

To ask Her Majesty’s Government, following the decision of the High Court that the consultation on mesothelioma legal fees was unlawful, and the lack of new funding for mesothelioma research, what is their policy with regard to combating mesothelioma and supporting victims.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): The Government take the plight of mesothelioma sufferers seriously and are determined to improve their position. We have introduced significant changes through the diffuse mesothelioma payment scheme, established under the 2014 Act. By October 2014 the scheme had made 131 payments, resulting in £16.5 million being paid to sufferers or their families. The Government fully recognise the need to stimulate an increase in the level of research activity and continue actively to pursue measures to achieve this.

Lord Alton of Liverpool: My Lords, I thank the Minister for that reply. Does he recall that, during the passage of the Mesothelioma Act 2014, Ministers said that the levy on the insurance industry would be set at 3%? They said:

“Three percent. is 3% and we have no intention of moving away from it”.—[Official Report, Commons, Mesothelioma Bill [Lords] Committee, 12/12/13; col. 117.]

Why then has it now been set at 2.2%, representing a shortfall of more than £11 million? That money could have been generated and used to undertake sustainable research into a killer disease which will take the lives of another 60,000 British people. This is according to figures which the Government themselves have issued.

Lord Faulks: As the noble Lord will know, the Government responded to the amendment which he tabled during passage of the Act by saying that they were committed as a priority to helping to encourage research by the National Institute for Health Research. We set up a partnership of patients and carers to identify a top 10 list of questions for researchers to answer. The results were published yesterday, as he may know. We now feel that we have identified the questions and funding will be available if there are appropriate applicants. The problem with research is no longer—indeed, it never was—funding, but finding really conceivably successful applications.

Lord German (LD): My Lords, both the House of Commons Justice Committee and the judgment of the High Court concerning the issue of legal fees in mesothelioma cases are critical of the way that the government review was carried out. It was found to be premature and did not follow the rules of the LASPO Act. We know that the incidence of this disease will peak and then fall away over the years, as the 30 year-old Acts concerning asbestos are put into place and have an effect. Given that there will be a withering on the

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vine of the numbers suffering this fatal disease, is it not now the time for this legal fees issue to be left alone and kept as it is, rather than coming back to it again and putting people through increased risk and increased delay?

Lord Faulks: My noble friend is right. We expect the peak to start declining and perhaps come more or less to an end in 2024. There is to be a review. There is no immediate timing for it but my noble friend is right in that the status quo is acceptable to the claimants. They are to receive damages. Research will continue, as I indicated, and the pre-LASPO regime for legal support will continue. This will ensure that lawyers are paid adequately, and we are told that they will not take cases unless they are paid adequately. The review will go on.

Lord Giddens (Lab): My Lords, I watched a member of my family die of this dreadful disease. There are massive advances in medical technology which make it possible, in principle, to find a cure. As the noble Lord, Lord Alton, has indicated, that could mean saving the lives of some 50,000 people. To do this we are going to need an integrated research strategy, with the Government in the lead, co-ordinating with industries and with universities. Where is this strategy? The Government’s approach seems far too piecemeal and far too limited to do the job that is needed.

Lord Faulks: As I indicated, the strategy is to ensure that the right questions are posed so as to elicit appropriate applications. The funding is very much there, but there is no point in having it unless it is directed towards research which can feasibly produce the result which, I am sure, everybody in this House wants to achieve.

Lord Wigley (PC): My Lords, will the Minister go further on that? There needs to be a certainty that the money is there but the top-level researchers also need to be aware of it so that the money and the level of the research capability are brought together. Is the Minister confident that that certainty now exists? What can be done to make sure that the best researchers in the land are aware of it and can get engaged with this problem?

Lord Faulks: I can do no better than quote what Professor Dame Sally Davies, the Chief Medical Officer and chief scientific adviser, said yesterday. She thanked all those who provided information and said:

“With their help I believe we have built a genuine consensus—and a real impetus. I hope the research community will now respond by generating new research proposals that will provide robust evidence to help people with mesothelioma”.

The Lord Bishop of Chester: My Lords, I encourage the Minister to answer the first part of the Question asked by the noble Lord, Lord Alton, about why the percentage of the precept was reduced from the promised 3% to 2.2%.

Lord Faulks: The position with insurers is that they have provided money. I will have to write to both noble Lords and the right reverend Prelate about what has happened to that particular sum. The question of

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the use of research funds is difficult. We think that research funds should be spent in the most effective way, and we think that publicly funding research is much more appropriate than hypothecating against insurers’ particular sums.

Lord McKenzie of Luton (Lab): My Lords, would the Minister accept that throughout our deliberations on the Mesothelioma Bill the focus was on a 3% levy? It was 3% because the insurance industry insisted that beyond that it would have to be passed to consumers. By implication, if the levy is now 2.2%, presumably that falls into the pocket of the insurance companies at a time when compensation is not being paid at a 100% level, and, as has been asserted, there is insufficient funding for research.

Lord Faulks: It is absolutely not the case that there is insufficient funding for research. As I have said more than once, the case is that, at the moment, there is not a suitable number of applications for research. The funding is very much there. As to any question of insurers making some profit out of this, I will look into that. It is contrary to what the Government wish to achieve.

Lord Howarth of Newport (Lab): My Lords, when the noble Lord, Lord Freud, brought in the mesothelioma legislation he did so undoubtedly in good faith. Yet, sufferers from this terrible industrial disease have now been failed not only by employers and insurers but by the Government themselves. Has the Lord Chancellor authorised the noble Lord to apologise on behalf of the Government for his decision to take up to 25% of compensation awards for costs—conduct which has been ruled by judicial review in the High Court to be unlawful? The noble Lord still has not explained to the House why the Government have failed to honour their commitment, given in terms by the Minister, Mike Penning, to set the levy on employer’s liability insurance at 3% of gross written premiums, which would have enabled better compensation and more funding for sustained research.

Lord Faulks: Compensation is full at the moment, as the noble Lord knows. I reject the allegation that the Government have done nothing. Not only are they promoting research; they have also, with their Big Tent meeting in June, encouraged much greater co-operation between lawyers acting for claimants to ensure that medical employment records are swiftly obtained. What is most important is that these claimants obtain compensation quickly and at as high a level as they can.

Railways: Pacer Trains


3.07 pm

Asked by Lord Greaves

To ask Her Majesty’s Government, in the light of the Autumn Statement, what is the timetable for the replacement of Pacer trains in the north of England; whether all the replacement trains will be new; and whether Pacers in other regions will also be replaced.

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The Minister of State, Department for Transport (Baroness Kramer) (LD): My Lords, I reaffirm the commitment made in the Autumn Statement. The details of how we will give effect to these issues are being considered as part of the development of the invitation to tender for the Northern franchise, which will be published early in 2015. Decisions on the possible replacement of Pacers elsewhere will be considered when the respective franchising competitions—for Great Western and for Wales and Borders—are being specified.

Lord Greaves (LD): My Lords, I am grateful for that confirmation by my noble friend. Will she confirm that, when the Chancellor said that the franchise in the north would involve,

“replacing the ancient and unpopular Pacer carriages with new and modern trains”,—[

Official Report

, Commons, 3/12/14; col. 313.]

that means that at least some of the trains will be new? Is that a promise? While she is about it, will she take this opportunity to scotch the alarming rumours that the 30 year-old Pacer trains will be replaced by 40 year -old cast-offs from the District line on the London Underground?

Baroness Kramer: I have to say to my noble friend that that last accusation is a new one to me. Clearly, the Chancellor gave a commitment to replace these trains. We also know that this is a line that is due for electrification. However, I am afraid I cannot share the details with the House until we get to the invitation to tender, because they are still being worked out. It will not be very long to wait; it will be in early 2015.

Lord Berkeley (Lab): My Lords, while all this is going on, the Government are doing the opposite and giving even more trains to the south. Indeed, today the Minister for Transport, Claire Perry, announced that there would be 10 new four-car trains to take people between Milton Keynes and London. Last week, I believe, new diesel trains were ordered and committed to go to Uckfield and between Ashford and Hastings. Is it not time that this trend was reversed and that the new diesels went to the Northern area? Perhaps the people of Sussex and Kent could try out some Pacers for a few years and see how they get on.

Baroness Kramer: My Lords, we are obviously anxious to phase out these Pacers rather than find them new homes. The noble Lord will be aware that we have orders from up and down the country for new rolling stock at significant levels; that includes the north—for example, on the east coast main line. An invitation to tender is coming very shortly in the new year. I cannot speak ahead of it, but I am reasonably confident that my noble friend will be happy.

Lord Deben (Con): Does my noble friend accept that we in the east of England are extremely pleased that we have just had our first new trains since the beginning of time? Never before has anyone produced a new train for the east of England. Some people may rightly say, “Ah, but this is one of the most important scientific powerhouses of Britain”. Let us thank her and say that it would not have happened had it not been for privatisation.

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Baroness Kramer: The railway has certainly been exceedingly successful since its privatisation, and that is reflected in the increased number of passengers. I am delighted at the drive that we have under way to bring on the kind of rolling stock that adds the capacity that we need.

Lord Davies of Oldham (Lab): My Lords, I am sorry that the Minister had not heard that Transport for London is looking at the possibility that certain rolling stock, driven by electricity at the present time, can be converted to diesel. That is why the north of England is shuddering at the prospect that that is where these trains might well end up. After the Chancellor made his Statement, the first thing that the Government did was to delay the decision on the franchise for the north. That is a clear case of built-in delay to get rid of these wretched Pacers, when Northern travellers have among the worst conditions in the whole of the United Kingdom. Is it not clear that the only certain way in which Northern passengers will get taken for a ride is by the Treasury and the Chancellor?

Baroness Kramer: My Lords, your Lordships will be aware that this is a pretty small delay. You will also be aware that there was a great response to the consultation for this line. It was entirely right of the Government to take the time necessary to work through a lot of very thoughtful responses and to make sure that the invitation to tender achieves the best possible outcome for passengers.

Lord Bradshaw (LD): My Lords—

Lord Clark of Windermere (Lab): My Lords—

The Lord Privy Seal (Baroness Stowell of Beeston) (Con): My Lords, it is the turn of the Liberal Democrats.

Lord Bradshaw: My Lords, will the Minister take notice of what has been happening in Scotland? When the new franchise was introduced, 30 new train sets were ordered immediately on that day from Hitachi. If she looks at the terms and conditions, she will see that these trains have been leased with the support of the Scottish Government—which is not what usually happens here—and they have done an extremely good deal, far better than has been achieved by Whitehall. Is it not the case that local control, be it in Scotland or London, produces far better results than are now produced in Whitehall?

Baroness Kramer: My Lords, this Government are very committed to devolution. The noble Lord will know that, with the Northern and TransPennine franchises, we have been working very closely with Rail North so that it creates a process by which a transfer can be made to Rail North to become, as it were, the specifier and monitor of franchises over time. However, it is a capability that is extremely demanding, as the noble Lord will know, and the evolutionary process of doing this hand in hand with areas that are interested in taking this responsibility to make sure that they develop the capability has to be the right way to go.

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Criminal Justice and Courts Bill

Commons Reasons and Amendments

3.15 pm

Motion A

Moved by Lord Faulks

That this House do not insist on its Amendment 74, to which the Commons have disagreed for their Reason 74A.

Lords Amendment

74: Clause 29, page 29, line 36, at end insert—

“( ) No female, nor any male under the age of fifteen, may be placed in a secure college.”

Commons Reason

The Commons disagree to Lords Amendment No. 74 for the following reason—

74A: Because it is not appropriate to prevent the detention in secure colleges of males under the age of 15 and females.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, as noble Lords will be aware, the other place was not persuaded last week by the amendment that this House put forward to prevent girls and boys under the age of 15 being accommodated in secure colleges. It voted by a margin of 316 to 194 to disagree with the amendment.

The Government remain of the view that it is not right to prevent girls and boys aged under 15 benefiting from this pioneering approach to educating and rehabilitating young offenders. We are committed to this principle, recognising that girls and younger boys are already safely accommodated together on the same site in both secure training centres and secure children’s homes, which together with YOIs make up the youth custodial estate.

Noble Lords will remember from previous debates that no final decisions have yet been made as to who will be accommodated in the secure college pathfinder that is due to open in 2017. This decision will be taken closer to the time and based on the composition of the youth custodial population. Responsibility for individual placement decisions will remain with the Youth Justice Board, which decides on a case-by-case basis, and is informed by the advice of the local youth offending team, where each young person should be accommodated while in custody. I know that a number of noble Lords remain firmly opposed to secure colleges or, in any event, this secure college. The Government are aware of their concern and respect their views, although they do not agree with them. This amendment is not about secure colleges generally but about under-15s and girls, and I am sure that noble Lords will be focusing on this particular issue.

Noble Lords will be aware from previous meetings that I have held with interested Peers and from discussions in the House that more vulnerable groups—such as girls and under-15s, should they be placed there—will be separately accommodated in smaller living units at the pathfinder secure college, and can also be separately educated. Following earlier discussions with interested Peers, we amended our site plans to provide further protection, and additional and separate outdoor space for the more vulnerable young people accommodated at the pathfinder.

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I have also previously made a commitment in this House that neither girls nor under-15s will be placed in the pathfinder secure college from its opening and that, should the decision be taken to place them there, their introduction would be carefully phased. My colleague, the Minister for Prisons, Andrew Selous, reiterated this same commitment to the other place last week. Nevertheless, despite these safeguards and commitments, the Government recognise that some concern remains. In particular, this concern is focused on the potential accommodation of girls and under-15s on the same site as older boys, and how the different groups would be kept safe and their different needs attended to.

To provide Parliament with further reassurance on these points, we are today committing to the Secretary of State laying a report before Parliament, and publishing that report, before either boys aged under 15 or girls are placed in the first secure college where they would be accommodated alongside older boys aged 15 to 17. This report will describe the arrangements in place at the secure college for the detention of girls and under-15s. In particular, it will set out the safeguards in place to protect these groups and the facilities and services available to meet their educational and rehabilitative needs and to promote their health and well-being. This report would therefore include detail on: the accommodation and supervision of girls and under-15s; how they will be educated and the focus of this education; the interventions available to tackle their offending behaviour; the provision for meeting their physical and mental health needs—a particular concern that I know has been expressed in the course of debate—and promoting their emotional well-being; and the safety arrangements at the site to ensure that neither group is at risk of intimidation or violence.

In producing this report, the Secretary of State would consult with the Youth Justice Board, Her Majesty’s Inspectorate of Prisons and Ofsted. The report would be laid before Parliament and published at least two months before the first occasion on which it was intended that boys aged under 15 or girls were to be placed in the first secure college to accommodate these groups on the same site as older boys.

Lord Willis of Knaresborough (LD): On an important point at this juncture and before he goes any further, will the Minister give an assurance that, when that report is produced, its recommendations will not be implemented in any form until there is an affirmative vote on those recommendations in both Houses of Parliament?

Lord Faulks: No, I will not give that reassurance. I hope noble Lords will none the less welcome this significant commitment, which will provide considerable transparency on the Government’s plans for the accommodation of girls and under-15s in secure colleges. I also remind noble Lords that, in addition to this commitment, there is of course the ongoing scrutiny of secure colleges provided by the inspectorates, Her Majesty’s Inspectorate of Prisons and Ofsted. In light of this commitment, I take the opportunity to reaffirm that keeping young people safe in custody will be the top priority in secure colleges, just as it is elsewhere.

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The Government are confident that secure colleges will deliver a step change in the culture and outcomes of youth custody and that, with the right facilities and precautions, both girls and under-15s will be able to benefit from this new approach.

I hope that this further significant reassurance demonstrates the Government’s commitment to protecting properly these vulnerable groups in secure colleges, while meeting their specific needs and enabling them to access enhanced provision. I hope this gives the House confidence not to insist on its earlier Amendment 74. I look forward to hearing the views of the noble Lord, Lord Ramsbotham—and, of course, the views of other noble Lords. I hope that, with the assurances I have given, he will in due course be able to withdraw his Motion to insist on Amendment 74. I beg to move.

Motion A1

Moved by Lord Ramsbotham

As an amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 74”.

Lord Ramsbotham (CB): My Lords, once again I admire the skilful advocacy of the Minister, this time in his presentation of a case that I totally reject, for reasons I will explain. I am grateful to him for providing me with an advance copy of his report proposal last night, but it does not answer the point made in Amendment 74, namely that boys under the age of 15 and girls should not be sent to a secure college under any circumstances. It is true that they are currently mixed in smaller secure children’s homes and secure training centres, but those are smaller places. Having small units within large units on a large site is not satisfactory, not least because the numbers of boys under 15 and girls are likely to be swamped by the vast majority of those older children who will be on the remainder of the site. What the Minister has outlined is not that Parliament will be given an opportunity to debate the issue, but merely how the Secretary of State will inform it once he has decided to send them there. Noble Lords will not be surprised to hear that I find that totally unsatisfactory.

I have a confession to make about the whole secure college proposal. For the first time in my life, I feel ashamed to be British because I am so appalled that anyone should have dreamt it up, let alone tried to blandish Parliament with spurious claims that an entirely untested and unevaluated proposal involving increased education will reduce children’s offending. All the available evidence, not least that the smaller the establishment the better when children and young people are detained—which I recognise from my experience when inspecting young offender institutions, secure training centres and secure children’s homes—points to the proposal to establish the biggest children’s prison in the western world being far more likely further to damage some of the most vulnerable and damaged children in our society with their multiplicity of problems and needs, not just lack of education.

I make no apology for yet again quoting some of Winston Churchill’s immortal words describing a decent criminal justice system. He said that the way in which

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it treats its crime and criminals is the true test of the civilisation of any country and marks and measures the living virtue in it. Would that he were here to pronounce his verdict on the proposal, because he would do it so much more effectively than I can.

In his letter dated 4 December, the Minister described the secure college proposal as a pioneering approach to educating young offenders and tackling stubbornly high reoffending rates. He is absolutely right to describe laying a proposal before Parliament about which no one, not even the proposer, knows any details, as a pioneering approach, but I hope that it is one that will never be repeated. I fear that those in both Houses who have voted for the proposal thus far have done so because they are attracted by the word “pioneering” and seduced by the blandished prospect of past failure being swept aside. But if anyone who voted in favour bothered to probe deeper into what the proposal actually meant other than the provision of more education, they would find nothing other than the assertion that the market will find the solution.

So far, the Secretary of State has awarded a building contract for a paper plan on a site with planning permission for an earlier young offender institution. One would assume that the education provider would have a say in the build of a new college with education at its heart, but no. Bidding for the educational contract has not yet started, nor do there appear to be any criteria against which competitors will be judged. One would presume that bidders would be required to compete for the delivery of a specified regime, but that, too, is far from the case. Rather than lay down a regime, the Secretary of State says that it will be the content of the as-yet-unknown winning bid. I admit that I cannot imagine any business daring to function like that or it would fail. But to personalise the point, would anyone consider sending any child with a multiplicity of problems to any school unless they had a very clear idea of how those problems might be treated?

Two weeks ago, the All-Party Parliamentary Penal Affairs Group, which I co-chair, and the packed audience at the annual Longford lecture, heard Nils Öberg, head of the Swedish prison service, describe how after long and careful scientific research into the characteristics, problems and needs of their young offenders, the Swedish authorities had concluded that the invariable multiplicity of young offenders’ needs could best be treated by trained experts in small, local establishments containing no more than 10. They knew that this was bound to be expensive because of the number of appropriately trained staff required—child-skilled staff do not come cheap—but they had a duty to secure the future for all Sweden’s children; a duty that applies in every civilised country, which ours still purports to be.

3.30 pm

That is why I agree with the noble Lord, Lord McNally, that staff are the key factor in decent child detention, and disagree with the Secretary of State both when he says that educational outcomes are more important than staff selection for this damaged and vulnerable group and when he persists in suggesting sending boys under 15 and girls to his college. This is where it is abundantly clear that the Secretary of State

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has not done his homework. He claims that the market will provide a better result at less cost than the present arrangements. Children under 15 and girls will need a completely different staff from those responsible for the vast majority of boys over 15. These will have to be provided from the overall budget, which means that they are bound to be at the expense of the older children. That is precisely what happened in young offender institutions when resources had to be taken from those over 18 to ensure that the Youth Justice Board’s contract requirements for those aged 15 to 17 could be met, the resulting paucity of regimes for young adults being a national scandal.

Of course reoffending is too high and too many of our young offenders have appalling educational records, but on what evidence does the Secretary of State base his belief that a commercial contractor can succeed where others have tried and failed? Why has he not released any research, scientific or otherwise, proving that he is right and that every single organisation and individual in the country who knows anything about dealing with troubled young people is wrong? Where is any analysis that he has researched the multiplicity of the children’s problems, or specification of the number of expert staff who must be on the site to cope with them?

At Third Reading, I mentioned the need for healthcare, particularly mental health care, to be of equal status with education in deciding the ethos of the secure college. Since then, I have heard yet more evidence that healthcare provision is imperfectly understood in the Ministry of Justice. I have told the House of the number of children in custody with speech, language and communication needs, and the remarkable results that speech and language therapists can achieve with them. I was told last week by the Royal College of Speech and Language Therapists that young offender institutions were refusing to allow boys to attend therapy because their absence from education counted against the target of 30 hours’ education demanded by the Secretary of State. Until March this year, the Lucy Faithfull Foundation conducted sex offender programmes in a number of young offender institutions. The Ministry of Justice then instructed that its contract was to be passed from the Youth Justice Board to NHS England. However, sex offender programmes come under offender management, not healthcare, and now there is total confusion, with young sex offenders being denied programmes. You could not invent such stupidity.

I could go on and on, but I will come to the crunch. At Third Reading, I asked the Minister to refer the matter to the Prime Minister because the future of our children is a national interest. I also wrote to the Prime Minister, pointing out that the Secretary of State was bulldozing ahead with a pet proposal in defiance of not only all the evidence but of the Government’s own announced social justice policy. I asked him to examine the evidence and state publicly whether he backed his Secretary of State or whether he felt it sensible that the proposal should be withdrawn for further consideration. I pointed out, as I have done since Second Reading, that the Secretary of State had a perfectly valid reason for withdrawal because, thanks to the success of the Youth Justice Board in reducing the number of children in custody, the nature of those who were left was very

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different from the previous number, not least because of the multiplicity of their problems. I have not yet had a reply to my letter and ask the Minister whether the Prime Minister has responded to my question on Report.

When the time comes, I invite the whole House, both those in the Chamber and those waiting to be whipped, to cast aside party politics and approach this issue from the point of view of a parent, grandparent, uncle, aunt, close relative or friend of a child with a multiplicity of problems, whom the Secretary of State for Justice intends to detain in his proposed secure college. I ask your Lordships to ask yourselves whether, knowing what you do about the proposal, you could live with yourself if an errant child in your family or of your acquaintance was to be detained in such an establishment. I realise that there is no exact parallel, because while we all know children with learning difficulties or disabilities, or mental health or behavioural problems, I doubt whether anyone in our immediate ken has been subjected to unspeakable parental neglect, or sexual or domestic violence, or to a lifestyle at what passes for home that is best described as chaotic and dysfunctional. Of course these children have committed crimes, but that does not mean that they should not be decently treated.

Therefore, when your Lordships vote, I ask you to follow your conscience as opposed to party diktat. This is the last chance that we have of preventing something that I would contend to be a stain on our nation, whether or not it contains boys under 15, and girls. I beg to move.

Lord Beecham (Lab): My Lords, unlike the Minister and the noble Lord, Lord Ramsbotham, whose vast experience of the custodial system in this country we all acknowledge, I will confine my remarks to the issue of under-15s and girls. I do not in any way depart from the criticisms of the general principle, but that has now been settled and we must accept that secure colleges will go ahead, provided the Government manage to enter into suitable contracts to build and operate them.

The Government’s proposal now to consult on and publish a report on this specific issue perhaps raises more questions than it answers. There are questions, going back to the original process, about which organisations or experts have supported the proposal to house under-15s and girls in an establishment of this kind. I am not aware of any. Perhaps the Minister can identify some. There is also the question, raised before by the noble Lord, Lord Ramsbotham, about whether the Government have considered similar schemes in, for example, Spain and the United States—similar in the sense that they are addressing the problems of this young age group but conducted on very different principles from that which the Government propose to put forward in the context of the secure colleges envisaged by the Bill. Moreover, there have been representations from a wide range of major, national bodies, such as the Children’s Rights Alliance, the Prison Reform Trust, the Standing Committee for Youth Justice, the Howard League for Penal Reform and, in a recent briefing, which some of your Lordships will no doubt have received, eight national women’s organisations concerned particularly with the problem of girl offenders in these institutions.

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There are also questions about the proposed consultations that the Government will enter into. Will they take place after the go-ahead is given for the construction of that part of the college that would house these young people or is that element of the proposed building contract to be deferred until the process is completed by the consultation to which the Minister refers? If it is not, I fear that it will become pretty much a fait accompli. Once the provision is made it is hard to envisage that the Government would fail to use it in the way that is currently envisaged.

There are also questions about the nature of the consultation. The Minister has circulated documents saying that the Secretary of State will consult the Youth Justice Board, Her Majesty’s Inspectorate of Prisons and Ofsted. The Minister has said it this afternoon. One would expect that and it is welcome, although I note in passing that the Chief Inspector of Prisons has, in what unfortunately will be his last few months in office, just published a response to the questions about the rules of the proposed college. In that response he is clearly expressing concern about the provision for under-15s and girls as well. So one potential respondent to the consultation is already expressing those concerns, although the chief inspector will no longer be with us as he is leaving his office in the new year before the final decision is made.

Will that consultation be confined to those three important institutions or will it go wider? Will it, for example, embrace the British Medical Association, which published a report this year called Young Lives Behind Bars, dealing with the provision of custodial facilities and the treatment of young offenders, which raised a great number of concerns? Will it embrace the local authorities to whose areas these young people will go back? It would seem to be essential that the social services—children’s services departments in particular but perhaps also other departments; one thinks of housing and the like—should be consulted about the provisions that are to be made for their young citizens who will be for a period incarcerated in the new college. The question also arises as to whether the other bodies—for example, the probation service, however it is to function under the new regime—will be separately involved. Again, one might have thought that that would be a given but it is not explicit in the Minister’s paper that outlines the consultation process.

It seems to me that there are significant questions to be asked even about the limited process that the noble Lord has outlined. I concur with the views of the noble Lord, Lord Ramsbotham, that it is an inadequate response. I take the point that was raised in the intervention by the noble Lord from the government Benches, who—if I may respectfully say so—perhaps rather naively thought that the Government might have contemplated that the report would require parliamentary approval. I agree with him, it would have made a significant difference, but that is not, apparently, on the agenda. One has to ask again why the Government are so reluctant to put their report on this hugely sensitive area to the test of the support of both Houses in the event that the consultation concludes that it is desirable to proceed with this very controversial measure.

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I join the noble Lord, Lord Ramsbotham, in hoping that Members will look at this one, now limited aspect of what has been a very controversial proposal and conclude that the Government have not made their case to proceed in the way that they propose to do, even with the very limited concessional gesture that the Minister has outlined. If the noble Lord seeks to divide the House, I will ask my colleagues on these Benches to support him but I hope, as he does, that that support will not be confined or indeed even governed by a political stance as much as a genuine concern for these young, vulnerable people, and doubts about the rationale for and the potential problems that might be caused by the Government’s proposals, if implemented.

The Earl of Listowel (CB): My Lords, I wish I could support the Minister. I am most grateful to him for all he has done recently for 17 year-olds in police custody and for acting promptly on the concerns of parents for their 17 year-olds in custody. However, I fear I must support my noble friend, to whom I pay tribute for his campaigning and determination in pursuing the welfare interests of these young people—girls and boys.

I have consulted with the experts whom I trust the most and their view is identical to those of the many other experts who have responded on this issue: it is far better to keep girls and boys under 15 in small local units. In large part that is because family relationships can be better sustained and strengthened. In some cases these relationships are unhelpful. In general, however, one has to try to support them.

I recall visiting Dr Camila Batmanghelidjh at Kids Company. One of her young people was my guide. He showed me the scar on his back from a bullet and spoke of his time inside prison. We also talked of the great pains Dr Batmanghelidjh took in helping to reunite him with his mother. He spoke movingly of the experience of the renewal of his relationship with his mother and the importance to him in his rehabilitation.

The noble Lord, Lord Farmer, and another Conservative Peer, recently spoke about the importance of fathers—the “dad deficit”, as it is called. According to the OECD in its data on family formation, from memory, 15% of children in Germany live without a father in the home; 18% in France; 22% in the UK; and 25% in the US. The OECD predicts, however, that we will overtake the US in the next 10 to 20 years.

We cannot continue to overlook the value of sustaining family relationships. It is vital that girls and boys under 15 are housed in local, small units, where those relationships can be fostered and supported. I urge your Lordships to support my noble friend Lord Ramsbotham.

3.45 pm

Baroness Butler-Sloss (CB): My Lords, I am a patron of a secure unit in Exeter, the Atkinson unit, which at the moment has troubled children coming under Section 25 of the Children Act, but it used to have children from the Youth Justice Board. It is a very small unit, taking 10 to 12 children. From my frequent visits there I have had the opportunity to see how this very small unit works extremely well with young children—those under 15. I am very unhappy about the Government’s proposals that children as young as under 15 should go into a

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large group of children, many of whom will be over 15, from whom they can learn all too much. I therefore also support the noble Lord’s amendment.

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

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

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

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

I have made it clear to my noble friend that I would want to agree a compromise on this issue if it were possible to do so. In particular, I accept that there is no definition in the Bill of what is meant by “secure colleges” or what size they should be. They could be smaller colleges than Glen Parva and more specialist, so that an educational environment that was mixed in gender and age might not be so inappropriate. However, that is not what is proposed at the moment. If the

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Government were to offer not to put under-15 year-olds or girls into secure colleges without parliamentary approval, that would offer Parliament a chance to consider and vote on any new circumstances that might be said to justify the detention of these groups in secure colleges. However, when my noble friend Lord Willis asked the Government for such an assurance, he was categorically refused it. The noble Lord, Lord Beecham, says that he was naive to ask for it. I do not believe that it is a naive request; it is a justified and justifiable one, and the Government’s position can be sustained only if they accede to it.

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

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

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

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

Lord Carlile of Berriew (LD): I will ask the Minister three short questions, but before I do, perhaps I may give a little reassurance to the noble Lord, Lord Ramsbotham,

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who moved the amendment. He encouraged Members of your Lordships’ House not to vote according to party diktat. As a Liberal Democrat, I can assure him that although we are given advice—sometimes strong advice—we do not deliver party diktat in my party. I am happy to be able to say as a Liberal Democrat that nobody in this party expects us to vote for a proposition to which we conscientiously object. That is why I shall be voting for the noble Lord’s amendment unless we hear a meaningful concession from my noble friend the Minister in the course of the minutes to come.

My three questions are these. First, the Government have said that they do not intend in the foreseeable future to use powers to allow the secure college estate to be used for under-15 year-old boys and girls. What does “the foreseeable future” mean? Does it end at the time of the next general election, thereby meaning that in the unlikely event of a Conservative Government being elected, the foreseeable future will be over and they will immediately decide to allow these facilities to be used for girls and young boys? If the foreseeable future does not end at the time of the forthcoming general election, why are the Government in such a hurry to allow these facilities potentially to be used for girls and young boys?

My second substantive question is about the secure college at Glen Parva itself. My noble friend the Minister and other Ministers have been kind enough to allow Members of your Lordships’ House to attend repeated meetings in which we have pored over the plans of this establishment. As the noble Lord, Lord Ramsbotham, said, those plans are entirely unsuitable for girls and young boys. The whole design of the place is founded upon the availability of the land, not upon starting with a designer’s brief to produce a secure college. That being the case, and that being the overwhelming opinion of all experts who have looked at this proposal—other than those who are within, as far as I can see, the Conservative part of this coalition Government—why do the Government not wait to obtain permission to send girls and very young boys to a secure college until there is a plan that has been properly consulted upon on a wider basis and fulfils empirical need?

Thirdly, why do we need this now at all? We know that the Glen Parva secure college will not open until, at the earliest, 2018. I do not think that I can remember a single year in my 30 years in one or other House of Parliament in which there has not been a criminal justice or sentencing Bill—or two, or three. Why can we not wait and have primary legislation based on proper evidence in the next Parliament? I doubt whether anybody from any Front Bench in this House would deny that there will be a criminal justice Bill in the first Queen’s Speech at the end of May. What is the hurry now? It is because of what I suspect will be the answer to those questions that I shall be supporting the noble Lord, Lord Ramsbotham.

4 pm

Lord Glenarthur (Con): My Lords, I had not taken a deeply close interest in what this amendment is about until I listened to what the noble Lord, Lord Ramsbotham, said. About 30 years ago, I took over from my noble friend Lord Elton as the Minister in the Home Office responsible for prisons. Subsequently, I have been a

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patron of the Butler Trust, which has done a lot to support the work of prison officers and prison staff of all sorts in the work that they do, not only in England but in Scotland, where I was the Scottish patron. One of the most disturbing elements I found in my work, not only in the prison world but in the Butler Trust world, was the parlous state of those young people who ended up in incarceration in one form or another. It disturbed me immensely.

What is proposed by the amendment makes sense up to a point, but I am increasingly concerned that one of the ways in which the Government would be wise to try to buy off the opposition to this is by moving from the current negative procedure to the affirmative procedure and using the opportunity that affords them to allow Parliament to debate what it is not otherwise being allowed to debate. In that case, the Government will have the support of many of us, but denying that opportunity is something I find extremely difficult to live with.

Baroness Farrington of Ribbleton (Lab): My Lords, I do not understand to which procedure the noble Lord referred. I can see no example of the negative or the affirmative procedure. In any case, in your Lordships’ House we either accept everything or vote it down completely; that is not amendable.

I approach this as a parent and a grandparent and as somebody who has been on a police authority, a social services committee and an education committee. I have visited secure establishments. Let me reassure noble Lords who believe that those of us who are expressing concern are not concerned about reoffending. I am concerned about reoffending for the sake of other young people as well of as the young people themselves. I am deeply committed to extending anything that will help young people not reoffend. However, I ask noble Lords to imagine that they are members of a local authority considering this proposal. Placed on you by law would be a duty of care to the young people concerned. Negligence could well end up with proceedings being taken against you.

We owe it to those young people to ask about this. I accept that the argument about secure colleges is lost, except for these two groups. I remain deeply uneasy. I cannot possibly do anything other than accept the noble Lord’s Motion and sleep easy believing that we have fulfilled our duty of care.

I again ask the Minister, for whom I have respect: why on earth will we not be allowed to debate and offer detailed observations before any decision is taken? That is a simple proposition. If the Government are proved right, your Lordships’ House will listen and be fair, but we are not being offered that. I ask every noble Lord to say to the Government: at least convince me before you ask me to reject the Motion of the noble Lord, Lord Ramsbotham.

Lord Lester of Herne Hill (LD): My Lords, I wonder whether my noble friend the Minister could add two further questions to the three asked by my noble friend Lord Carlile, which will help me in deciding exactly what to do. First, will he confirm to the House that neither the affirmative procedure nor the negative

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procedure is to be applied before the scheme is brought in? As it stands, the scheme can be brought in by the Minister without either. If that is right, will he then explain why the Government decided in the other place that they would ensure that the affirmative procedure would be used to the extent that the Government wanted to authorise the use of force, but not otherwise? Why is the affirmative procedure being used in that case but not in this?

My other question is this. I have looked in vain at the debate in the other place to see whether they had the opportunity to consider the extremely powerful points made by the noble Lord, Lord Ramsbotham, with an answer by the Minister. I cannot find anywhere in Mr Andrew Selous’s speeches on 1 December even the beginning of a reply to the noble Lord’s points. I ask that question because, before taking the solemn step of sending the matter back to the other place, it is important to know what happened. If I had seen a rebuttal of the points of the noble Lord, Lord Ramsbotham, that would affect the way in which I will behave, but I ask my noble friend the Minister whether I am right in saying that the noble Lord’s points simply went unanswered.

Baroness Benjamin (LD): My Lords, I would briefly like to speak on Motion A1, which would ensure that girls and younger children are kept out of secure colleges as we know them. We know them to be tough, intimidating and challenging places. The children’s charity, the NSPCC, believes it would be unsafe, inappropriate and potentially damaging to hold girls and under-15s in such institutions, especially as they would be with many older boys. The main reason for this is that many of the girls in custody are highly likely to have experienced sexual abuse. Placing them in custodial institutions may be traumatising and damaging to their rehabilitation. Placing girls and young children in secure colleges will cause serious and unprecedented safeguarding risks that should be considered.

Every child deserves to have the best education on offer, to help them prepare for the future and to help them cope with life. But to reach their full potential, children need to feel safe and not intimidated or bullied. We know that these environments will be made up of the most troubled children in the country. There is a need to give these vulnerable children the confidence to reach their potential, to help them engage with their education and to give them stability and consistency. The evaluation report by Ofsted does nothing to address these serious safeguarding concerns. I ask my noble friend the Minister: how will these concerns be addressed? What type of facilities will be put in place to give children and young people the stability, safeguards and requirements that are needed to deal with their mental and physical health and well-being? I look forward with great anticipation to my noble friend’s response, and hope he gives full consideration to our concerns today. I will accept nothing less than a compromise.

Lord Elton (Con): My Lords, I was the Minister responsible for the police and the probation service for one year, and Minister for the Prison Service for three

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years. I was a teacher for 10 years and have been a father for 50, as well as a grandfather for just a few. I find myself in a very uncomfortable position. I have a great loyalty to and a great length of service in this party. On the other hand, I come here not by appointment by any present power but through my father having preceded me, and I remain here on a vote not of my party but of the whole House. Therefore, I feel that I have to be thoroughly independent in this matter.

I must say to my noble friend that all those spheres of experience that I have chime with the advice that he is getting from all quarters of this House. It is not necessary for me to repeat in a humdrum way what has been so eloquently and inspiringly uttered by others, but I want to tell my noble friend that I cannot possibly follow him into the Lobby on this occasion.

Baroness Williams of Crosby (LD): My Lords, I congratulate the noble Lord, Lord Elton, on what he has said and the courage that he has shown. There are just two other questions that I should like to ask the Minister. I was once upon a time, and for some years, a Prisons Minister.

The first question rests on the fact—noble Lords can check this—that young women are most likely to engage in serious self-harm between the ages of 16 and 20. Self-harm is much more common among women prisoners than among male prisoners; it is four times as high—so disproportionate is this attempt to raise sympathy and get attention. Is the Minister aware of these quite striking figures for the very high level of self-harm among young women, some of it serious self-harm, in the very age group that we are considering sending to secure colleges? What steps will be taken to ensure that any girl sent there has no previous record of self-harm?

My second question is quite different. We have all listened closely to the noble Lord, Lord Ramsbotham, and we respect his extraordinary integrity in this House on issue after issue. Is the Ministry of Justice determined effectively to rule Parliament out of a system of consultation, advice and help, which I believe that most of us in this House are crying out for? We have seen an astonishing list of dismissals of Parliament in the course of proceedings on this Bill. I find it very unfortunate, and I am not sure that it is what the Minister intended, but it is certainly the net effect.

Will there be any consultation with the House about who will be the author of this report? In the light of the Home Office committee on sexual abuse, one can see what an intensely controversial question that will be. Will there be any willingness to listen to the House on consultation after the plans have been put forward for submission to the ministry? Finally, will the Minister consider whether the response given by the Commons to our amendments—namely, “it is not appropriate”—is an appropriate argument or even an appropriate answer to the many issues raised by the deep concern of many of us, of all parties, in this House?

Baroness Ludford (LD): My Lords, will the Minister briefly explain precisely why the Government feel unable to take the further step, which seems very reasonable to a lot of noble Lords who have spoken, of allowing parliamentary approval of that next step—for younger boys and girls to go into secure colleges? There is some

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bemusement over why the Government could not take that further step, as it seems unreasonable to withhold it. It would certainly help me in my decision in voting to understand the reasons why the Government feel unable to agree to that procedural step.

Baroness Afshar (CB): My Lords, is the Minister aware that teenagers and pre-teenagers are the most racist groups, particularly those who are disturbed? Putting young, vulnerable minorities in the context of intense racism creates future terrorists. Has the Minister considered the cost to this nation of creating more enemies within its own people?

4.15 pm

Lord Storey (LD): My Lords, I apologise for not speaking before but I have faced two family bereavements. The Government ought to congratulate themselves that the number of young people held in secure accommodation has dramatically reduced. These young people obviously need education. Some 70% are special needs pupils; 20% are statemented. They are also terribly emotionally damaged. They are children; I am not talking about youths or young adults. A 12 year-old child can potentially be hundreds of miles away from the thing they need most—the love of their family and friends. Could the Minister say whether, if this custody provision—we are told it is Europe’s largest—goes ahead, any provision will be made for travel costs for those parents wishing and perhaps hoping to visit their children on a daily basis?

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

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

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

9 Dec 2014 : Column 1730

Lord Faulks: I am grateful for that correction or clarification by the noble Lord. It is important to remember that the context in which the Government are approaching the secure colleges is, as my noble friend Lord Storey correctly pointed out, that we have a reduction in the youth estate, which is to the credit of the Government, the Youth Justice Board and all those concerned with the criminal justice system. However, we have a small number of young people who, for various reasons—and those reasons have been touched on by a number of noble Lords—present many different problems and issues and need to be detained in one form or another on the youth custodial estate.

We cannot be satisfied with the fact that 68% of young people reoffend after leaving custody. Nor can we be satisfied that education is not a greater focus of the efforts to turn these young lives around. In fact, it is 74% where secure children’s homes are concerned. For these reasons, we do not wish to exclude any groups from accessing the benefits that we believe the new model of custody will deliver.

I wonder how much there is, in fact, between the Government and many noble Lords who have spoken. The Government are indeed careful and wary, for all the reasons that have been outlined, before sending those aged under 15 or young girls to these secure colleges. That is why I gave a commitment to the House that we would not cause them, in any circumstances, to be sent there at the beginning. It is also extremely important to emphasise that they will be sent there only if the Youth Justice Board and the youth offending teams think that it is appropriate, because all those bodies and the Government recognise precisely the points that have been made, namely that these young people are extremely vulnerable and that it should only be—

The Earl of Listowel: I am grateful to the Minister for giving way. I have heard him make this assurance previously. I ask him to bear in mind the case of Joseph Scholes. This was a young man in care. He was in a children’s home. He was involved in a gang that stole a mobile phone. It was determined that he should be placed in custody. The court recommended that he should be placed in a local authority secure children’s home. There were not sufficient places available, so I think he was placed either in an STC, a secure training centre, or in a YOI. He took his life after that. Realistically, one has to recognise that the YJB and others are under severe financial constraints and will perhaps be even more so in future. While they may wish to do the very best for every individual child, if these spaces become available there will be great pressure for them to be used.

Lord Faulks: These institutions are important. Those who have seen the plans will appreciate that they are bright and barless. In answer to some of the points made, they also provide a separate, small group of 10 to 12 units for girls and under-15s, if they are placed there, to ensure a degree of separation for them. As for the provision of medical attention, there is to be, as those who have seen the plans will know, a rather sophisticated provision of mental health, provided by NHS England, as well as physical health and dentistry—which should

9 Dec 2014 : Column 1731

in fact, I respectfully suggest to noble Lords, more effectively address health needs than they probably are in the community or in any of the other institutions that currently exist in the youth custodial estate.

I was asked a large number of questions, particularly by the noble Lord, Lord Carlile, and my noble friend Lord Lester, essentially saying, “What is the hurry? What is the foreseeable future? Why do you want to have this provision approved now? Can we not wait until there is a subsequent Bill?”. The answer is this: we have parliamentary approval to set up these secure colleges. I know that many noble Lords do not approve of this, but that issue is now no longer before the House. If the colleges are satisfactory and meet the approval of the inspections, we wish to allow those who may benefit—provided all the safeguards have been followed—to take advantage of that institution.

My noble friend Lord Lester asked where my friend the Minister, Andrew Selous, answered the points made by the noble Lord, Lord Ramsbotham. I refer him to cols. 101 and 102 of Commons Hansard, rather than reading it all out. During the course of his peroration, Mr Selous said that, as the father of three daughters, he would not wish to deny them the opportunity to go to a secure college. I would not, perhaps, go that far. However, the point that he makes is an important one. We should not, provided that the secure colleges are satisfactory, discriminate against girls having the possibility of taking advantage of what we solemnly believe will be a satisfactory educational provision.

Of course the noble Lords say that there should be an affirmative or a negative procedure. It will not be forgotten that this was a case in which there was a loss by one vote in your Lordships’ House, and then it was reversed by a significant number in the House of Commons. It might have been thought that the Government would simply ask this House to think again. We have been endeavouring to provide some assurance. The Secretary of State will indeed provide a report. As I have indicated, he can consult whomever he thinks is appropriate before providing a report as to why he thinks it necessary, if indeed he comes to that conclusion. He may well come to the conclusion that it is not appropriate; that remains an option.

I am sorry that there has not been an acknowledgement that the Government have tried to engage with interested Peers on this issue. I know that the noble Lord, Lord Ramsbotham, is extremely hostile to secure colleges as a whole, but we ask him to bear in mind the essential failure—we regretfully say—in the current arrangements to answer the real problems that have been identified in that relatively small number of people who are in the youth custodial estate. We urge him to ask himself whether it is really appropriate to deny this vulnerable but important cohort of people the opportunity—if it is appropriate, with all the safeguards that we have examined—to take advantage of those secure colleges. We want them—if it is appropriate—to have that opportunity. We can assure the House that these safeguards will be gone through and furthermore that there will be a report that will make the Secretary of State’s reasoning transparent.

9 Dec 2014 : Column 1732

Lord Richard (Lab): My Lords, I plead guilty to the indictment framed by the noble Lord of not having taken part in any of the previous debates. Having listened to the debate this afternoon, I wish that I had. The noble Lord keeps saying “if it is appropriate” and that we must not deny young girls the great opportunity that these colleges might provide. Will the Government say that they will not put any girls under 15 in these establishments until the Government have established that these colleges work and would be of benefit to those children?

Lord Faulks: As I indicated, there are inspectorates —HM Inspectorate of Prisons, Ofsted, the Youth Justice Board and youth offending teams—and now we have a prospective report by the Secretary of State. The noble Lord, Lord Ramsbotham, said that the Secretary of State wished to put these people in the secure colleges. With great respect to the noble Lord, what happens is that if they commit offences and a court has decided that it is appropriate to send them there, subject to all the other safeguards, they will be sent there. The Secretary of State has nothing to do with them being sent there. His task is to provide appropriate establishments.

I respect the concern that noble Lords have quite rightly shown for this cohort—and I fully accept that they have exhibited it not just now but at various stages during the examination of these legislative provisions. They have expressed their view, those views will have been communicated to the Secretary of State, among others, and this House has made its position clear. Nevertheless, having considered the matter carefully, I ask the noble Lord to decide not to press his amendment.

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

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

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

Lord Ramsbotham: My Lords, I am very grateful to the Minister for his summing up but, as he will no doubt understand, I do not find it convincing at all

9 Dec 2014 : Column 1733

because he has answered absolutely nothing. We have heard nothing about the details of this college and we have never heard any evidence of why the Government think that it is appropriate. We have heard yet again about education, and about a healthcare centre, but we have not had an acknowledgement of treating all the multiplicity of problems that these children face.

We keep hearing the word “might”, because there is no evidence to show that this approach has worked. In the absence of that, it would be irresponsible of us not to press further. I am extremely grateful to all noble Lords who have taken part in this very stimulating debate. They have shown yet again not only the vast amount of expertise in this House but the degree of compassion felt for the people we are talking about. I was particularly struck by the noble Baroness, Lady Williams, questioning why it was that this Government chose to rule Parliament out of any consultation on these issues. Here again, the offer of a compromise was thrown down and rejected by the Minister. I feel that I have no alternative than to seek to test the opinion of the House.

4.31 pm

Division on Motion A1

Contents 304; Not-Contents 240.

Motion A1 agreed.

Division No.  1


Adams of Craigielea, B.

Adonis, L.

Afshar, B.

Ahmed, L.

Allen of Kensington, L.

Alli, L.

Alliance, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Armstrong of Ilminster, L.

Bach, L.

Bakewell, B.

Bassam of Brighton, L.

Beecham, L.

Berkeley, L.

Best, L.

Bichard, L.

Billingham, B.

Birt, L.

Blackstone, B.

Blair of Boughton, L.

Blood, B.

Boateng, L.

Boothroyd, B.

Borrie, L.

Boyce, L.

Bradley, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Belmont, L.

Butler of Brockwell, L.

Butler-Sloss, B.

Campbell of Surbiton, B.

Carlile of Berriew, L.

Carter of Coles, L.

Cashman, L.

Chandos, V.

Chester, Bp.

Christopher, L.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Colville of Culross, V.

Condon, L.

Corston, B.

Cotter, L.

Coussins, B.

Craig of Radley, L.

Craigavon, V.

Crawley, B.

Cunningham of Felling, L.

Dannatt, L.

Davidson of Glen Clova, L.

Davies of Coity, L.

Davies of Oldham, L.

Deech, B.

Desai, L.

Donaghy, B.

Donoughue, L.

Doocey, B.

Drake, B.

Drayson, L.

Dubs, L.

Elystan-Morgan, L.

Erroll, E.

Evans of Temple Guiting, L.

Falkland, V.

Farrington of Ribbleton, B.

9 Dec 2014 : Column 1734

Faulkner of Worcester, L.

Fearn, L.

Fellowes, L.

Filkin, L.

Finlay of Llandaff, B.

Ford, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Giddens, L.

Glasman, L.

Glenarthur, L.

Goddard of Stockport, L.

Golding, B.

Goodhart, L.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Grantchester, L.

Greaves, L.

Greengross, B.

Greenway, L.

Griffiths of Burry Port, L.

Grocott, L.

Hameed, L.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, L.

Hastings of Scarisbrick, L.

Haughey, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hennessy of Nympsfield, L.

Hilton of Eggardon, B.

Hollick, L.

Hollins, B.

Hollis of Heigham, B.

Hope of Craighead, L.

Howarth of Newport, L.

Howe of Aberavon, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hussein-Ece, B.

Hutton of Furness, L.

Hylton, L.

Irvine of Lairg, L.

Janke, B.

Jay of Ewelme, L.

Jay of Paddington, B.

Joffe, L.

Jones, L.

Jones of Whitchurch, B.

Jordan, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

Kidron, B.

Kilclooney, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Knight of Weymouth, L.

Laird, L.

Laming, L.

Lane-Fox of Soho, B.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

Lennie, L.

Lester of Herne Hill, L.

Levy, L.

Liddell of Coatdyke, B.

Liddle, L.

Linklater of Butterstone, B.

Lipsey, L.

Lister of Burtersett, B.

Listowel, E.

Lloyd of Berwick, L.

Luce, L.

Ludford, B.

Lytton, E.

McAvoy, L.

McCluskey, L.

McDonagh, B.

Macdonald of River Glaven, L.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

Mackay of Drumadoon, L.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Maclennan of Rogart, L.

Maginnis of Drumglass, L.

Mallalieu, B.

Mandelson, L.

Mar, C.

Marks of Henley-on-Thames, L.

Martin of Springburn, L.

Masham of Ilton, B.

Mawson, L.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Miller of Chilthorne Domer, B.

Monks, L.

Morgan of Drefelin, B.

Morgan of Ely, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Morris of Yardley, B.

Moser, L.

Nickson, L.

Norwich, Bp.

Nye, B.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Ouseley, L.

Palmer, L.

Pannick, L.

Parekh, L.

Patel, L. [Teller]

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

Peston, L.

Phillips of Worth Matravers, L.

Pitkeathley, B.

Ponsonby of Shulbrede, L.

Prashar, B.

Prescott, L.

Prosser, B.

Puttnam, L.

Quin, B.

Quirk, L.

Radice, L.

Ramsay of Cartvale, B.

Ramsbotham, L. [Teller]

9 Dec 2014 : Column 1735

Rebuck, B.

Rees of Ludlow, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Rennard, L.

Richard, L.

Rochester, Bp.

Rodgers of Quarry Bank, L.

Rogan, L.

Rogers of Riverside, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

Sandwich, E.

Sawyer, L.

Scotland of Asthal, B.

Sharkey, L.

Sharp of Guildford, B.

Shaw of Northstead, L.

Sheffield, Bp.

Sherlock, B.

Simon, V.

Singh of Wimbledon, L.

Skidelsky, L.

Slim, V.

Smith of Basildon, B.

Smith of Clifton, L.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Snape, L.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stirrup, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Storey, L.

Strasburger, L.

Sugar, L.

Swinfen, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Warwick, L.

Temple-Morris, L.

Tenby, V.

Thomas of Gresford, L.

Thornton, B.

Tomlinson, L.

Tonge, B.

Triesman, L.

Tunnicliffe, L.

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Walker of Gestingthorpe, L.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williams of Crosby, B.

Williams of Elvel, L.

Willis of Knaresborough, L.

Wilson of Tillyorn, L.

Winston, L.

Woolf, L.

Woolmer of Leeds, L.

Worthington, B.

Wright of Richmond, L.

Young of Hornsey, B.

Young of Norwood Green, L.


Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Anelay of St Johns, B.

Arran, E.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor, V.

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Bates, L.

Bell, L.

Black of Brentwood, L.

Blackwell, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Brady, B.

Bridgeman, V.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Buscombe, B.

Byford, B.

Caithness, E.

Callanan, L.

Carrington of Fulham, L.

Cathcart, E.

Cavendish of Furness, L.

Chadlington, L.

Chisholm of Owlpen, B.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Courtown, E.

Crathorne, L.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Deben, L.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dundee, E.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Eden of Winton, L.

Edmiston, L.

Emerton, B.

Empey, L.

Evans of Bowes Park, B.

Falkner of Margravine, B.

Farmer, L.

Faulks, L.

Feldman of Elstree, L.

Fellowes of West Stafford, L.

9 Dec 2014 : Column 1736

Fink, L.

Finkelstein, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Fox, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glentoran, L.

Gold, L.

Goodlad, L.

Grender, B.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hanham, B.

Harris of Peckham, L.

Helic, B.

Henley, L.

Higgins, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Home, E.

Hooper, B.

Horam, L.

Howard of Lympne, L.

Howard of Rising, L.

Howell of Guildford, L.

Humphreys, B.

Hunt of Wirral, L.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Kakkar, L.

Kirkham, L.

Knight of Collingtree, B.

Kramer, B.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Lingfield, L.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lothian, M.

Lucas, L.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

MacLaurin of Knebworth, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Mancroft, L.

Manzoor, B.

Marland, L.

Marlesford, L.

Mawhinney, L.

Mobarik, B.

Montagu of Beaulieu, L.

Morris of Bolton, B.

Moynihan, L.

Murphy, B.

Naseby, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Nicholson of Winterbourne, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Paddick, L.

Palmer of Childs Hill, L.

Palumbo, L.

Palumbo of Southwark, L.

Parminter, B.

Patten, L.

Patten of Barnes, L.

Perry of Southwark, B.

Pinnock, B.

Plumb, L.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

Renton of Mount Harry, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Ryder of Wensum, L.

Saatchi, L.

Sanderson of Bowden, L.

Sassoon, L.

Scott of Needham Market, B.

Scriven, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shields, B.

Shipley, L.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Newnham, B.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Sterling of Plaistow, L.

Stewartby, L.

Stowell of Beeston, B.

Strathclyde, L.

Suri, L.

Suttie, B.

Taverne, L.

Taylor of Goss Moor, L.

Taylor of Holbeach, L. [Teller]

Teverson, L.

Thomas of Swynnerton, L.

Tope, L.

Trefgarne, L.

Trenchard, V.

Trimble, L.

True, L.

Truscott, L.

Tugendhat, L.

9 Dec 2014 : Column 1737

Tyler of Enfield, B.

Ullswater, V.

Verjee, L.

Verma, B.

Vinson, L.

Waddington, L.

Wakeham, L.

Waldegrave of North Hill, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wasserman, L.

Watson of Richmond, L.

Wei, L.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Williams of Trafford, B.

Wrigglesworth, L.

Young of Graffham, L.

Younger of Leckie, V.

4.49 pm

Motion B

Moved by Lord Faulks

That this House do not insist on its Amendments 97, 98, 99, 100, 101 and 102, to which the Commons have disagreed for their Reason 102A.

Lords Amendments

97: Clause 64, page 64, line 35, leave out “must” and insert “may”

98: Clause 64, page 64, line 37, leave out “not” and insert “decline to”

99: Clause 64, page 65, line 10, leave out “must” and insert “may”

100: Clause 64, page 65, line 13, leave out “must” and insert “may”

101: Clause 64, page 65, line 33, leave out “must” and insert “may”

102: Clause 64, page 65, line 40, leave out “must” and insert “may”

Commons Reason

The Commons disagree to Lords Amendments Nos. 97, 98, 99, 100, 101 and 102 for the following reason—

102A: Because it is appropriate to impose duties, rather than to confer discretions, on the High Court and the Upper Tribunal in connection with judicial review proceedings in which it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

Lord Faulks: My Lords, we turn to Part 4 of the Bill, and specifically the clause concerning procedural defects highly likely to have made no substantial difference to the outcome of a judicial review. I pay tribute to this House, and the expertise shown in many corners, which has been brought to bear on these clauses. We have heard from my noble and learned friend Lord Mackay of Clashfern, who brought his unrivalled experience to the debate. He referred to comments of a former Secretary of State, the noble Lord, Lord Adonis, who wrote in his book, Education, Education, Education:

“However, if Parliament was navigated quickly and unobtrusively, the same was not true of the courts. As soon as academy projects became public, opponents seized on judicial reviews as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions”.

My noble friends Lord Horam and Lord Tebbit told us that judicial review does not exist in isolation and has an impact on projects in the real world that deliver employment to people and can significantly affect actual problems. There have, of course, been many contributions far less supportive of the Government’s proposals. For example, the House has heard from a number of distinguished judges with enormous experience of judicial review, including the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Woolf. We heard from the noble Baroness, Lady Campbell of Surbiton, of the important role that judicial review can have when used properly.

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Throughout, the Government have listened carefully—more carefully than some of our more trenchant critics suggest. The amendments that we propose in later groups bear, I hope, testimony to that. In the case of financial information we have proposed an amendment, despite having won a substantial victory in the other place. However, I must say to the House that on the matter of this clause the Government have not been persuaded that any amendment is required.

When used appropriately judicial review is an essential part of the rule of law, by allowing for the lawfulness of public bodies’ actions to be tested in court. But it is an area that has been misused, with claims brought with no real prospect of success, and with a view to delaying and adding expense to perfectly lawful acts that are simply disliked. Such challenges place significant burdens on the public purse and strike at the economic development that the country badly needs.

The Government want to restrict judicial review, not abolish it—I must emphasise that. Rather, we want to restrict it to cases that have real merit. Judicial review should not be used as a campaigning tool. It should be concerned with unlawful activity that has or is likely to have a real effect on outcome.

Clause 64 is intended to filter out claims brought on technicalities highly unlikely to have made a substantial difference to the claimant’s position earlier and at a lower cost. Your Lordships’ amendments would, in the Government’s view, undermine the clause. The elected Chamber rejected the House of Lords amendment, voting by 319 to 203 last Monday.

As this House amended it, Clause 64 would permit the court to refuse permission or a remedy where it was considered highly likely that a complained-of flaw would have made no difference to the outcome for the applicant. The Government’s formulation would require the judge to consider an argument that it was highly likely that a complained-of flaw would have made no substantial difference to the outcome for the applicant, and to refuse a remedy or permission where he or she was satisfied that the argument was made out.

Although the clause introduced duties on the court, it retained significant judicial discretion—primarily, of course, in deciding when the “highly likely” threshold is met in a particular case, and where the court is of the view that there is any significant doubt that it is, it can act as it thinks fit. Indeed, we have deliberately avoided defining “highly likely” in the statute, meaning that the judiciary will determine how it will apply in practice.

In the House of Commons, in speeches pitched against the Government’s original position and in favour of the amendment made by your Lordships’ House, it was said that we would be putting the judge in the position of the decision-maker. I simply fail to understand this point. The judge is not being asked to second-guess the decision of the administrative body; he or she is being asked simply to consider whether it is likely that there would have been a substantially different outcome if the impugned decision or the conduct had not occurred. This is very much judicial territory. Judges perform such assessments in all sorts of different circumstances.

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The second point made in the House of Commons was that the judge would not be able to come to a decision without a mini-trial or dress rehearsal. I do not accept that point either. At the moment he or she will have to decide in appropriate circumstances whether it is inevitable that the outcome would have been unchanged. Now the bar is slightly higher but the process by which the judge arrives at the conclusion will be very similar, if not the same.

The noble Lord, Lord Pannick, referred to public interest. Of course, public interest plays a part in a number of different legislative provisions in different contexts. But we believe that the threshold established in this clause does best serve the public interest. It will ensure that judicial review cases that progress beyond permission stage are not purely academic and are not based on minor technicalities highly unlikely to make any difference. We therefore think that this strikes the right balance. Indeed, the House’s amendments to the clause could serve to undermine the intended effect, and underestimate the significant safeguards built into the clause as agreed by the other place.

There is a balance between imposing appropriate duties to ensure that these reforms have the intended effect and preserving the important role of judicial decision-making. I strongly believe that this clause gets the balance right between allowing judges to decide matters of judicial review and nevertheless providing appropriate safeguards to ensure that inappropriate and meritless judicial reviews do not proceed further. I beg to move.

Lord Phillips of Sudbury (LD): Before my noble friend sits down, will he be so kind as to give a little more information about the underlying justification, as he puts it, for the rejection of this amendment? That is, he put it in terms of abuse of the judicial review process, technicalities, academic applications and so on. Has he any statistics or indications as to the extent of that abuse?

Lord Faulks: No, I do not have any statistics, I am afraid.

Motion B1

Moved by Lord Pannick

As an amendment to Motion B, at end insert “, but do propose the following amendment in lieu of those Amendments—”

Amendment in lieu

102B: Clause 64, page 65, line 46, at end insert—

“( ) The duties of the court or tribunal under section 31(2A), (3B) and (3C) of the Senior Courts Act 1981, or section 16(3B), (3C) and (3D) of the Tribunals, Courts and Enforcement Act 2007, are subject to the discretion of the court or tribunal to act otherwise where it considers it in the public interest to do so in all the circumstances of the case.”

Lord Pannick (CB): My Lords, I am very grateful to the Minister. His door has been open in recent weeks to discuss matters of concern and interest with noble Lords who are concerned about this clause.

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On Report, your Lordships voted by a majority of 66 to amend this clause to maintain a degree of judicial discretion. The Government lost that vote because they lost the argument. Judicial review is of central importance to the rule of law. It is the means by which citizens seek to establish before an independent judge that public authorities, including Ministers, have acted unlawfully.

5 pm

The courts do not just grant remedies for the individual applicant. They state what the law requires so that Ministers and officials know what test to apply in future cases. This clause, if enacted in the form that the Government wish to see, would oblige a judge to dismiss a judicial review application at the outset, however important the issue and however strong the argument that the defendant, whether it is a Minister or a civil servant, has broken the law. Requiring a fair procedure, and requiring Ministers and officials to comply with the law of the land, is not a technicality. It is very disappointing that, despite the substantial majority in your Lordships’ House on Report, the Government have offered no concession whatever on this clause.

The issue before your Lordships’ House is a very simple and important one. There needs to be an element of judicial discretion. The absence of judicial discretion is not, to use the Minister’s words, a fair balance. During the one-hour guillotine debate in the House of Commons on all three of these judicial review issues—they were taken together—a Conservative Member of the House of Commons, Mr Geoffrey Cox, said that he could not support the Government because this clause will mean,

“that flagrant and absolutely unacceptable behaviour by the Executive could be condoned by saying, ‘Well, it made no difference.’ There are times when courts ought to mark a fundamental lack of due process”.

I agree. More importantly, so did Mr Grayling. The Lord Chancellor intervened in the debate and said:

“The ‘exceptional circumstances’ provisions would allow a judge to say, ‘This is a flagrant case and must be heard’”.—[Official Report, Commons, 1/12/14; col. 82.]

The Lord Chancellor made the same point at col. 72. That is precisely the defect of this clause. It contains no exceptional circumstances provision. It contains no power for the court to say, “This case must be heard”. The clause imposes an absolute duty on the courts to dismiss cases where it is highly likely that the defect would have made no difference, however flagrant the legal error and however important the issue from the perspective of the public interest. Since the Lord Chancellor in the debate recognised the obvious need for a degree of discretion in this clause, it is incomprehensible to me why the Government are so determined that the clause must be enacted with no degree of judicial discretion.

In those circumstances, I invite the House to ask the other place to reconsider this matter and reconsider it on the basis of what this clause actually provides, and the damage that it will do to the rule of law in this country. The Motion in my name now before the House adds a reference to the public interest. It is an improvement on the amendments approved by your

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Lordships’ House on Report in that it identifies the purpose—the essential purpose—of retaining a degree of judicial discretion.

On this issue of the rule of law, the House of Commons should be asked to think again. I beg to move.

Lord Beecham: My Lords, it is a measure of the importance of the matters that we are now debating, and upon which we will have to vote, that the noble Lord, Lord Pannick, made special arrangements to fly back this morning from Moscow at 5.45 am, Russian time. I do not know whether the Lord Chancellor has ever been to Moscow, but I suspect that Mr Putin’s views about holding government and other public bodies to account for the lawfulness of their decision-making would be closer to the Lord Chancellor’s than to the noble Lord’s.

After all, Mr Grayling has proclaimed that judicial review is,

“not a promotional tool for countless Left-wing campaigners”,

or, as he put it in the course of the 58 minutes that the House of Commons devoted to debating the amendments passed by your Lordships’ House:

“Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country”.

He went on to claim that,

“in far too many examples, that is precisely what it has become”.—[

Official Report

, Commons, 1/12/14; col. 70.]

Oddly enough, the Lord Chancellor failed to provide any examples of these malign abuses of the system, the essential interests of the country that he felt were under threat or indeed the identity of the so-called abusers. On Report, the noble Lord, Lord Faulks, at least condescended to cite an example. Members may recall shuddering with horror at the revelation that the building of a supermarket in Yorkshire was delayed by all of six months due to an application for judicial review—brought, incidentally, not by a left-wing or other pressure group but by a commercial rival of the developer. I do not blame the Minister at all for relying on this underwhelmingly persuasive case. He was struggling with a grossly inadequate brief—something that I suspect from time to time he has had to deal with over the years, though perhaps in less important contexts.

The Secretary of State for Justice, moreover, whose title looks increasingly like one coined by George Orwell, gives the game away in presuming that, “perfectly lawful decision making” is what is at stake. The implication is clear: what the Government legislate is ipso facto lawful. In the fantasy world in which the courts are besieged by meddlesome litigants pursuing left-wing causes—litigants such as the Countryside Alliance and the Daily Mail—the courts are deemed to be wholly incapable of sorting out the legal wheat from the campaigning chaff. Typically, though, Mr Grayling, in the amendments that he has produced, which were never spelled out or indeed debated in the Commons, ignores the basic requirements, already enshrined in law and practice, that permission from the courts is required both to bring a case to hearing and for third parties to intervene. The Government, themselves a

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possible defendant in these cases, seek to restrict the exercise of judicial discretion in their own interests, and on the basis of the flimsiest evidence of the abuses that they affect to detect in the working of the system and the decisions of the courts. In the unlikely event of Mr Putin becoming aware of the Government’s approach, he would be lost in admiration.

The Opposition support the amendments from the noble Lord, Lord Pannick, Motion B1 and Amendment 102B to Clause 64, which would preserve the court’s discretion to grant judicial review where the court considers it in the public interest to do so. I invite my colleagues and others to join the noble Lord in the Content Lobby.

It would be convenient if at this stage I indicated the Opposition’s position in relation to the other amendments. We support the noble Lord’s amendment to Motion C, dealing with Clauses 65 and 66, and his amendment to Motion D, which sets out in Amendments 107A to 107E what purport to be the Government’s concession in relation to the financial position of interveners. I remind the House again that interveners must obtain permission before taking part in any application. The Government’s amendments would oblige the court to order an intervener who has been granted permission to pay costs to any other party in any one or more of four instances. The instances are: under subsection (4A)(a) of Amendment 107B, where they act as a party, although the court already has a discretion in such a case; under subsection (4A)(b), where the intervention has not provided significant assistance taken as a whole, whatever that is supposed to mean; under subsection (4A)(c), where the intervention relates to matters not necessary to resolve the issue—although, again, if they did not, permission would presumably not be granted in the first place; and under subsection (4A)(d), where the intervener has behaved “unreasonably”, whatever that means in a context in which the court already has a discretion.

The potential for mandatory awards of large costs against interveners is self-evident and self-evidently chilling. In addition, I understand that the question of financial resources and the extent of any liability would be left to the Rule Committee to determine, subject only to a negative resolution. In this context, it might be thought that this is a highly debatable procedure for dealing with such an important issue in such an important area.

I do not need to enlarge on the weight of opinion opposed to these measures in the senior judiciary, past and present, or the wide range of opinion, including that of the Joint Committee on Human Rights and the Equality and Human Rights Commission, not to mention such subversive organisations as Age UK—I declare my interest as honorary president of Newcastle Age UK —Mencap, Mind, the National Autistic Society and many other highly esteemed and reputable organisations in the voluntary sector.

I conclude with a particular appeal to Liberal Democrat Members of this House, several of whom voted for the amendments in your Lordships’ House when we last debated this matter on Report, and several of whom joined some of us—from the Cross Benches and these Benches—in the Division Lobby in the vote just taken.

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Sadly, very few of their colleagues voted in support of this House’s amendments in the House of Commons. If anything has distinguished the Liberal Democrats—and particularly the former Liberal Party—it has been a sincere attachment to civil liberties and the rule of law. They have been vigilant in questioning, and, from time to time, opposing, policies of different Governments that were perceived to be in conflict with those legitimate concerns. I believe that many are troubled by what this part of the Bill seeks to achieve and by the Government’s amendments. There is nothing, of course, in the coalition agreement that refers to the measures we are now debating. If ever there was a case—with a general election only six months away—for this House to exercise its role in scrutinising and amending important legislation, and in making a judgment on the merits rather than according to political calculation, this is such an example. My appeal to Liberal Democrat Members—

Lord Carlile of Berriew: I am grateful to the noble Lord for giving way, and I know that what he is saying is being said in a constructive spirit, but he might like to bear in mind that lectures from the Labour Party on civil liberties are not popular in the Liberal Democrats. He might possibly just leave it to our own consciences to determine how we vote on this matter.

Lord Beecham: It is, of course, entirely a matter of conscience for the noble Lord and others, and I would not defend everything that Labour Governments have done in this area either. That is why I referred to the stance that Members of the noble Lord’s party took on proposals made by more than one Government. It is a perfectly fair point.

I hope that, in addition to Members of those Benches, there may be other Members—from the Conservative Benches, perhaps—who will follow the example not only of some Conservative Members of Parliament who voted for this House’s amendments in the Commons, but even, much to my surprise, of the two UKIP MPs. I would not normally be encouraging people to follow where UKIP has led, but in this particular case, they were for once on the side of the angels. I hope, therefore, that this House can support the noble Lord’s amendments and, in so doing, encourage the Government to rethink their direction of travel in this very sensitive area of the rule of law and of the way in which government in this country—not just central government, but local government and other executive agencies—carries out its important responsibilities.

5.15 pm

Baroness Campbell of Surbiton (CB): My Lords, I support Motion B1 in the name of my noble friend Lord Pannick. Noble Lords will know that I have expressed serious concerns about Part 4 at every stage of the Bill, and I remain deeply troubled. I know only too well how much vulnerable people, especially those who are disabled, rely on state services and how catastrophic it is when things go horribly wrong. I feel that in the other place the Lord Chancellor is still peddling the line that judicial review has been hijacked by pressure groups for political campaigning, citing

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again and again the example of Richard III. If political campaigning includes campaigning for justice and people’s access to justice, then I am very happy to plead guilty; I am one of those campaigners.

The Lord Chancellor also said in the other place that tough times mean tough decisions and tough love. I agree with that, but judicial review is even more critical in times of stress—in tough times—to ensure that the Government do not ride roughshod over their citizens. These reforms must be seen in the context of cuts to legal aid which already hinder access to justice for those at the margins of society, especially disabled people. This is not an issue about lawyers protecting their status or income. I am sorry, but it just is not. Where is the evidence? It is truly about weakening the ability of ordinary vulnerable people to hold public bodies to account and increasing the power of the state.

Clause 64, if not amended, would require judges to refuse judicial review if the outcome would be highly likely to be no different. It would remove their discretion. We need their discretion. The Government want to exclude judicial review for what they call “minor technicalities” —for example, the need for a bit more consultation. So much for due process. Removing judges’ current discretion would allow unlawful or dishonest decisions to go unchecked and public bodies to be let off the hook. It would also dramatically change the role of judges in second guessing what might have been. I cannot understand it. It cannot be right. The amendments made by this House to restore judicial discretion were rejected in the other place. I thank my noble friend Lord Pannick for his Motion and entirely support it. I seriously urge all Members of your Lordships’ House to think beyond the campaigning and those odd cases where it may have been quite ridiculous and to think about the hundreds of very vulnerable people who will need this over the coming years as, I have to tell the House, things are getting really tough for us.

Lord Woolf (CB): My Lords, it is always important to listen to what is said by the noble Baroness, Lady Campbell of Surbiton. She has an insight into these matters that Members of the House who come from a legal background, as I obviously do, do not have personal experience of. It is very apposite that she should have said what she just said. I hope that the House will heed her plea.

Knowing that the noble Lord, Lord Pannick, would have to go to Moscow, I am bound to say that I had prepared for him not to be here, and therefore had prepared a much longer speech than I am going to give. But I would like to add just one or two things. As I am sure your Lordships understand, this is a very important issue. If noble and learned Lords have any ability to assist and advise the House, then it was clear in the earlier stages of the Bill that this was something they thought was wrong. They gave their reasons, and I played a leading part in that. The reason we did so was that we thought it was going to be bad for justice, for the citizens of this country and for the reputation of this country as a leading adherent of the rule of law. Judicial review is all about the rule of law. Every application that has any prospect of succeeding initially has to prove that something happened which the Lord Chancellor and the judges would regard as being

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unlawful. So if you are refusing relief in this situation, you are doing it with regard to something which has been illegal, or is in a position where there could be illegality.

The second thing to remember is that the procedure for judicial review is an exceptional procedure, designed initially by the judges, but then enacted in what was the Supreme Court Act and is now the Senior Courts Act 1981, in Section 31, which sets out the position as to the jurisdiction of the courts. That section makes it clear that heavy responsibilities are placed upon the judiciary with regard to its operation. The safeguards are there, because they have a very heavy responsibility of holding the balance. The amendment we are now considering is a small one. It is in relation to the first amendment, which I am addressing. As required by the Government, the judge—the word in question is— “must”. As required by the amendment, the word is “may”. The difference between us is “must” and “may”. As you have already heard, in the House of Commons—and I am going to come back to this—the Lord Chancellor misled the House. I have to say that. I am sure the Minister will accept it. He said to it that each of the amendments—

Lord Faulks: I am only interrupting to agree absolutely with what the noble and learned Lord said. The Minister has in fact written to say he was in error. The letter has, I believe, been placed in both Houses of Parliament, but there was a mistake and the noble and learned Lord is quite right to draw attention to that.

Lord Woolf: I am grateful to the Minister for making that clear. I was not aware that the Lord Chancellor had done so, and I thought it was very regrettable that he should have failed to do so. It is extremely important that the one Member of the lower House who has a statutory responsibility of a particular nature with regard to the rule of law and the administration of justice should have made that mistake, because he dealt very summarily and quickly with the position which was before this House in some detail. We have heard the relevant passages of what he said.

I recall that on, I think, 5 December—I have the reference to it if it is required—the Minister took care to say that there was a convention that the courts, Parliament and Government each respected each other and therefore did not unnecessarily criticise each other. I was well aware of that convention but I would suggest that it is much wider than that. It is a convention that, in respecting the other arms of government, each of them—I include the judiciary here as an arm of government—will not trespass on the other’s area of territory or a different part of the arm unless there are particular reasons for doing so. One can see why that should be so. In the courts, we are very particular indeed not to trespass on the privileges of this House and the other place—and they should be equally sensitive.

Knowing what had been done by this House, which appeared to me at any rate to be so clearly necessary, I read with great care what was said in the lower House. I must say that I was very concerned that the Lord Chancellor in the lower House had indicated the three reasons that noble Lords were told about by the noble Lord, Lord Beecham, when he read the speech, including one that clearly amounted to a reflection on the judiciary. I have heard many protestations that the Lord Chancellor

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greatly respects the independence of the judiciary. However, when he talked about its difficult task of administering judicial review, as it does, day in and day out—and the task of presiding over judicial review is allocated to earmarked judges, so we can be sure that the matter will be properly considered—he was concerned that it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. That is one of the problems that the Chancellor was concerned about. I would gently suggest to the Lord Chancellor, if he is writing apologies, that that is another matter that certainly calls out for an apology. It is wholly inconsistent with his statutory responsibilities under the Constitutional Reform Act. That is something that, having been said, either persuades the House or does not. However, if the other place was misled as to the background, what is at first sight a very difficult decision to understand is explained. I suggest that, because the matter was not put fairly to the other place, that is another very good reason why the matter should be returned to it.

5.30 pm

If you know about judicial review, you would know about its early history. One problem of judicial review during its early history was that it could be bypassed. Just as the present legislation applies only to judicial review, it is possible to take before the courts the same matter under an application for a declaration. If that happens, all the safeguards are bypassed. Therefore, the judges had to find ways to avoid litigants bypassing judicial review by going for a declaration. The declaration was imported into our system in England and Wales fairly recently, not least from Scotland, where it is used to great effect as a declarator. The declaration means that the court has power to declare before something happens whether it is unlawful or not. Unfortunately, perhaps, it is not used as much as it should be. As someone who had the task of defending the Government before the courts—for example, in planning applications —I was deeply concerned that, often during the course of a very long planning inquiry, points of law would arise and one had to wait until it was over before the position could be determined. With the benefit of a declaration, it could be determined. At the time of the application for permission to apply for judicial review, in many circumstances one will not know what the correct answer is. It is therefore important and in the public interest that issues are established, not only for a particular case but for the law as a whole in the process.

On looking at the proposal we are considering, it may be clear to your Lordships that it attacks not only the stage of the trial but also the stage where permission is being sought for leave to apply for judicial review. If it can be shown at that stage, to the satisfaction of the judge, that it is highly likely that it may not affect the applicant, he is then under a responsibility to stop the proceedings ever getting to a hearing. On the one hand, there would be an act which could be established as unlawful and yet, if this amendment as now encoded were to survive, the law could not be clarified.

Looking back over my experience, I could give many examples of cases where I might not have been able to ignore the effect of this provision when it would not be in the interests of justice to do so. I am not going to take

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up time, because there is not the time for me to do that, but I would readily do it if it were necessary. I suggest that it is obvious. Last week the Lord Chancellor lost a case which, at first sight, may have seemed very petty. The question was whether a prisoner could order a book. It was said that, because of a procedure initiated by the Lord Chancellor, there would be no access to that book. On 5 December, Mr Justice Collins, who has had great experience in these matters, came to the conclusion that the guidance which the Lord Chancellor wanted to be implemented as the practice in prisons was not lawful. No doubt there are still opportunities to appeal the matter. There are arguments that can be advanced against the judge’s decision, but if you read the decision you can see how important it is that the facts of the individual case are considered. You cannot have a blanket approach because there will be very similar cases where, in one, a certain view should be taken and leave to proceed not be given whereas, in the other, it should be.

I ask your Lordships to say that, in the interests of justice and of the rule of law, the matter should go back to the other place with the opinion of this House as sought by the noble Lord, Lord Pannick.

Lord Deben (Con): My Lords, I do not want to disappoint the noble Lord opposite but it does not need to be a particular party to see that there is something deeply wrong with what is being presented today. I am sorry about the tone that he adopted. I think it was entirely wrong and he may have done his cause and my cause a great deal of harm as a result.

The Government have not distinguished themselves by the way in which they have listened to this House or by the way in which they have thought through what they have presented. I remember the comments of the late Harold Macmillan that it is a mistake to revolt on more than one thing at a time because it confuses the Whips. I am concentrating on this particular issue because it is the most important issue of all. I think my noble friend misunderstood something I said earlier as criticising him. I do not criticise him at all. I think he has presented the case in this House as well as humanly possible, with a courtesy which one would expect and which he has fully expressed. The trouble is that there is not a case for what is being proposed. That is the difficulty. I do not think I have ever heard so damaging an apology as the one which was revealed during the course of the speech of the noble and learned Lord, Lord Woolf—that the Minister got wrong the only argument of any importance that he presented and then tried to uphold in this House the decision of the other House which would not have come about except with the exercise of the Whip. That would have done credit to the Chief Whip on the Benches opposite during his period in the House of Commons. It is very serious indeed. We have to say no to the Government’s determination. We have to support the proposal of the noble Lord, Lord Pannick, because we have to give the other House an opportunity to reverse the decision that it made when it was not in full possession of the facts. That is the first thing we have to do.

My noble friend said that all that is happening is that the bar is being raised slightly higher. I am not a lawyer. I am proud of not being one and am keen to

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enter into this discussion because sometimes it seems as if the only people who understand these things are lawyers. I think that most normal people understand these things and they understand them very simply. With the greatest of respect, the bar is not being raised slightly higher. Its nature is being changed. What is being asked now is that judges must make a decision which does not seem to be a proper decision for the courts in any case. Decisions of courts should fundamentally be on the facts of the law—on what something means. But that is not the decision that is being asked for here. The judge is being asked to decide that somebody’s unlawful act was highly unlikely to have affected the people who would otherwise have been affected. That is a curious thing to ask a court to do. Surely a court ought to be asked to say whether a proposal is so unimportant or vexatious that it should not occupy the time of the court. That is a perfectly reasonable thing to say. If judges had constantly allowed people who wanted to argue how many angels danced on the point of a pin, then I would have accepted that we needed to do something about it. However, when my noble friend was challenged for the statistics on which this very serious proposal was based, he honestly said that he had not got any.

Your Lordships might reflect that if I were presenting a proposal to a board of directors of a public company and I said I wanted fundamentally to change the product they had—its constituents, the way it was advertised, the market for which it was being manufactured—I would have to present some figures. I would have to say how many people did not like the product and thought that it needed to be reformulated. I would have to say how often the product had poisoned people or upset their stomachs. I would have to produce some kind of basis.

Lord Faulks: I am grateful to my noble friend for giving way on this point. I said that I had no statistics; I did not say that I had no examples.

Lord Deben: I have listened carefully to the examples that my noble friend put forward, but has he any more? I do not think that any of them have been convincing so far. I am happy to give way to him if he is prepared to give us some new examples.

Lord Faulks: If the noble Lord had looked at the website in which all the examples were set out in the build-up to the Bill, he would have read them. I cannot read them all out now; it would be an inappropriate use of the House’s time.

Lord Deben: I am sure that most of my noble friends, and noble Lords generally, have seen those examples. I have to say to my noble friend that they are not very convincing. They are not sufficiently great to suggest that we should change the law of the land in this very particular way. That is my concern. I can see that it is easy to say, “Look, there have been a lot of judicial reviews that have not really been necessary”, or to say that we really need to shorten the time to build and to develop. I have a long history of being keen on building, developing and getting this country ahead of its neighbours, and of being unhappy about the way that we seem to take such a long time to do things. I am therefore a natural voter for this. I am on

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the side of the Government; I would like to be with them. However, this is not the way to do it. There are ways in which it could be done that would not break the fundamental reason for judicial review.

I come to my third point. During an earlier debate I said that the foundation of British law is that no one is above the law. I am a great enthusiast for King Charles the Martyr, but it was perfectly right to say that he should not be above the law. I think it extremely dangerous—I say this to my noble friend very carefully—if Ministers should feel it reasonable to break the law because it is not really very important, or because it does not really have much effect. Breaking the law, if one is in a position of authority, is ipso facto a serious thing to do. Having been a Minister for 16 years, I would expect my civil servants to tell me very clearly if I proposed something that would break the law. I would take that very seriously indeed. I do not believe that ordinary people will respect the law in the same way that they do today if they think that Ministers have a special arrangement, which is that when they do things somebody has to show that it was really serious, really upset somebody or really made a difference before the courts can adjudicate on it.

I come to my fourth point, which I must say is, to me, very serious indeed. We have to be very careful about legislating in a way that suggests that we do not have trust in the judges who make decisions. Of course, this might be thought to be a dangerous place to say this as there are so many judges here, but it is the thing that distinguishes us from many Administrations: there are very few people who will not say that the judges in this country make decisions without fear or favour. If judges have made decisions that judicial review cases should be heard, I would prefer to rely on them than on people who are parti pris—that is, the Ministers—who find those decisions embarrassing. Ministers of any political party ought to be embarrassed if they break the law. That is an essential part of defending the law.

5.45 pm

The fifth thing I want to say is that I feel that the treatment of this House on these issues has not been what we have expected in the past. When I was Secretary of State I expected my Minister in the House of Lords to defend the Bill and to get the essentials, but to be free enough to be able to say, “Well, the House clearly doesn’t find it possible to accept this. Therefore, I’ll go away and see if I can find a way through”. I do not blame my noble friend for that. What I blame is what appears to me to be an increasing habit to say that that is not what we are here for. If we are not here to uphold principles of this kind, then we should not be here at all.

My real worry about this whole series of returns, having won the argument, having had a significant majority, having been advised by some of the best legal brains in the country, and having had—if I may dare say so to the noble Lord opposite—the support of large numbers of Conservatives and Liberal Democrats and almost every Cross-Bencher, is that, after all that, I hope, had I been a Minister, I would have tried to find a way through that was as simple as the one that has been presented by the noble Lord, Lord Pannick. This is a very generous amendment; for me, it does not

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go far enough. However, I shall support it. I hope that real Conservatives will support it because it is about the rule of law—that is really why I objected to the way that the noble Lord opposite spoke—which all of us in this House, irrespective of our parties, should support. That is why we are here. If we do not defeat this and insist on the amendment we will not have done our duty.

Lord Morris of Aberavon (Lab): My Lords, I will not detain the House for more than a few minutes. I listened carefully to the last debate on this issue. There was nothing to add to the wide experience, in more than one capacity, of the noble and learned Lord, Lord Woolf, and of the noble Lord, Lord Pannick. In my non-ministerial years while at the criminal Bar, dealing with murders, rapes and frauds, the opportunities of polishing my talent in judicial review applications were few and far between. Hence, I did not speak earlier. However, what I want to say—it is a fundamental point—is that what I find offensive is the fettering of judicial discretion in a constitution that does not have the protection of a Bill of Rights. That is important.

The only point that I want to make in this debate is to show and illustrate, from my own experience, how government departments respond to an adverse finding in a judicial review. The Attorney-General’s office, for which I was responsible, has never, to my knowledge—certainly not up to my time—been judicially reviewed. However, the Attorney-General is responsible in Parliament for the Director of Public Prosecutions and supervises that office. By Act of Parliament, the Attorney-General appoints the director. He or she would be seen week in and week out, when significant cases would be discussed, although it is the director alone who takes the decision whether or not to prosecute.

Three important cases of death in custody—nothing, to my mind, having had a constituency next to a prison, would cause greater concern than an issue of that kind—were judicially reviewed as to the director’s decision not to prosecute. The court criticised the Crown Prosecution Service severely. What did I do? I immediately set up a non-statutory inquiry under a senior retired circuit judge, His Honour the late Gerald Butler, whom I located late on a Sunday night in the serenity of Cornwall and seduced him to do some additional work. His published report was extremely critical. I knew immediately that lessons had to be learnt and supported the work that I had undertaken to review fundamentally the Crown Prosecution Service. This was important additional evidence and it was essential to avoid a recurrence. Firm and speedy action was necessary. I hope that that brief example illustrates how one government department responded immediately to the findings of the court. The result was a huge transformation in the operation of the Crown Prosecution Service.

I have no reason to believe that any other government department does not take the findings of judicial review equally seriously; hence my firm belief in the unfettered judicial curb on the Executive—to ensure legality, to ensure that Ministers believe and act legally—and in the continuation of the long-standing judicial discretion which is the bastion for the maintenance of the rule of law.

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Lord Lester of Herne Hill: Mr Geoffrey Cox, a Conservative Member of Parliament, asked the Secretary of State for Justice what he meant by “a minor technicality”, and he replied by giving examples of a failure of proper consultation. In my experience, a failure of proper consultation can be a very serious matter. I want to give just two examples of cases that I was involved in—one I won and the other I lost. One was about closing Barts Hospital. A judicial review challenge was brought on the basis that the Minister had not properly consulted before deciding to close the hospital. The judge exercised discretion in any event, and we lost. However, it was a very important exercise because it involved the court in calling to account what the Minister had done to see whether it was an abuse of power; it was not.

In the other case, involving a Labour Government, the consultation was about the Export Credit Guarantee Corporation and whether the new rules on anti-corruption had been properly consulted on. It turned out that the only people who had been consulted were large corporations. A small NGO, the Corner House, brought a challenge based on the fact that it was not a proper consultation, and it succeeded. As a result, the Minister had to do a further, proper consultation and to beef up the anti-corruption rules. I give those two examples to show that the Secretary of State for Justice simply does not appreciate how important a breach of procedural good government can be in a particular public interest case.

I want to say two other things. One is that the Joint Committee on Human Rights, on which I serve, has repeatedly pointed out that the Government have produced no evidence, as distinct from ideology, to justify the changes that are being contemplated and are now the subject of ping-pong, and they still have produced no evidence. The Constitution Committee, on which I also have the privilege of serving—not a left-wing, radical, subversive organisation—led by its chair, the noble Lord, Lord Lang, on 4 July asked the House to reflect on the wisdom of the Government pressing ahead with the reform to judicial process despite the warnings of the judiciary. In spite of the Constitution Committee ringing the alarm bell and repeating the warnings—I will not bore the House with the details—the Government went ahead. As far as I can see, neither of these reports was even referred to by Mr Grayling in the debates in the other place.

It is very important, if we have expert committees that are advising both Houses, that at the very least Ministers do them the courtesy of replying to them in the debate, and they have not done so. I cannot match the eloquence of the noble Lord, Lord Deben, or the eloquence and wisdom of my noble kinsman, the noble and learned Lord, Lord Woolf, in what they have said, but I very much hope that we will rise above party politics this evening.

Baroness Lister of Burtersett (Lab): My Lords, like the noble Lord, Lord Deben, and the noble Baroness, Lady Campbell of Surbiton, I speak as a member of what was last week dubbed the sisterhood and brotherhood of non-lawyers. It is very important that non-lawyers speak in support of lawyers on these issues because, as the noble Baroness, Lady Hamwee,

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said at Second Reading of the Bill, “These are citizens’ issues”. We are talking about the most marginalised, powerless and voiceless citizens whose concerns are at stake.