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Tuesday, 1 July 2014

Lord Lloyd’s reference to the IPPs sitting and latest proceedings report.



30 JUNE 2014 Parliament


Lord Lloyd of Berwick (CB): My Lords, we have
just listened to two very powerful speeches, which have
covered the whole scope of the Bill. For my part, I
shall concentrate only on Part 1, in which there is
much to criticise in detail when we come to Committee.
Taken as a whole, I find Part 1 profoundly depressing.
We have 28 new clauses full of new offences and
increased penalties at a time when, as the noble Lord,
Lord Marks, demonstrated, and as we all agree, crime
is actually falling and the prisons are full.
When I became a judge, not so very long ago, there
was a prison population of 35,000. It is now 85,350.
How can such an increase be explained, let alone
justified? Mr Grayling says that there is no crisis
because he has 1,000 spare prison places. However, the
story fromindividual prisons is very different:Wandsworth
is currently operating at 169% of capacitywhile Durham,
which was built for just under 600 prisoners, currently
accommodates 940. Mr Grayling says that there has
been an unexpected increase in the demand for places
and has suggested that one reason might be the number
of recent convictions for historic sex offences. I would
like to suggest a much more likely reason. Home
Secretaries, as we have seen, have an itch for taking a
hand in sentencing—and now, to Home Secretaries of
the past, we have to add the Lord Chancellor.
I will give an example of what I know from my own
experience. In the old days, the tariff in murder cases
was fixed, or I should say recommended, by the trial
judge, and the Lord Chief Justice would add his
comments. Sometimes, the Home Secretary would
will be nine years before the backlog is cleared. That is
the position in general, but I am particularly concerned
about a group of 773 prisoners who were given tariffs
of two years or less in 2007 before Section 225 was
amended. If they had been sentenced in 2008 instead
of 2007, they could not have been given IPP sentences,
so they would by now be out of prison: indeed, they
would have been out of prison long ago. Yet they are
still in prison.
Some 275 of them are five years or more over tariff;
some as long as eight years over tariff, including
37 where the tariff was less than six months. Can
nothing be done for these people to speed up their
release? The answer the Minister should give is, “Yes,
something can be done”. When Parliament repealed
Section 225 in 2012, it was well aware of the backlog
that had been created and of the need to so something
about it. So Kenneth Clarke introduced a new clause
giving the Lord Chancellor the power to alter the
release test in the case of IPP prisoners. It need no
longer be the same for other lifers, as it had been and
as indeed it still is; nor need it even depend on an
assessment of risk.
This new power is contained in Section 128 of the
2012 Act. It is obvious that it was included in the Act
for one purpose only: to speed up the release. I have no
reason to doubt that if Kenneth Clarke were still Lord
Chancellor, hewould have exercised the power contained
in that provision. He had already described the existing
state of affairs as unfair and unjust, for the very
reasons that I have mentioned.
Some time—very soon—after Mr Grayling became
Lord Chancellor, I asked him whether he intended to
exercise the powers that he had been given by Parliament
to deal with the backlog. He said that he had no such
intention. The only reason he has ever given is that it
would not be right or appropriate to interfere with the
sentences lawfully imposed by the judges. However, in
the case of the 773 prisoners given sentences of two
years or less, that reason will not hold. In their case,
the judges had no discretion one way or the other; they
were bound to assume dangerousness until Section 225
was amended in 2007.
Mr Grayling must surely find some better reason
for not exercising the power he has been given in
relation to those prisoners. Nobody is suggesting that
he should release prisoners who are “dangerous” in
the ordinary sense of the word, but he should find
some way of dealing with those with tariffs of two
years or less under the powers which he has been given
for that very purpose. With tariffs as short as that,
they cannot have been among the most serious offenders.
In the case of 37 prisoners with tariffs of six months
or less, we now know that 24 of them have a low risk
of reoffending—yet they are still in prison. The matter
cannot be put better than it was in a leader in the
Times on 25 March. It made this point:
“The scandal Mr Grayling should address is that a process set
in law”,
should be “followed in life”. I hope that Mr Grayling
will do just that—not just, as the Times said, to save
some £40,000 a year for every prisoner released or to
reduce overcrowding but to restore to these prisoners
some sense that they are being fairly and justly treated
that it is legitimate to use physical constraint on a
child only in order to prevent harm to the child or
others. A Bill which insists on the presumption of a
custodial sentence for anyone, including a child, carrying
a knife might by the same token be expected to keep to
a minimum the use of physical force on children by the
state’s own officers.
The other important theme to which I draw attention
is access to justice and the ability to hold the Executive
to account for their actions. The impact of the proposed
changes to judicial review has to be seen in the context
of a cumulative series of changes relating to legal aid
and judicial review from the time of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012
onwards. Judicial review is a vital element in our
system of democracy and in ensuring that elected
authorities act in accordance with the law. The executive
power at every level must be subject to law. In the
pages of scripture, in Deuteronomy, the King of Israel
is told that he must not consider himself better than
his fellow Israelites or turn from the law to the right or
to the left. The same applies to all public authorities at
all times.
The 2012 Act reduced the eligibility threshold for
legal aid and cut legal aid across many areas without
affecting the funding of judicial review. Eight days
after the 2012 regime came into force, the Ministry of
Justice published proposals for further changes in
legal aid funding for judicial review, including the
introduction of a residence test. In addition, new rules
on time limits may well further limit access to justice.
It is disturbing when the Bar Council says that when
combined with other recent government measures for
changing the law of judicial review, these changes, if
enacted in their current form, will immunise government
and other public authorities fromeffective legal challenge.
Where there has been a case for the overuse of
judicial review, in planning or immigration matters,
for example, changes have already been made. It is no
longer possible to sustain the claim that there has been
massive expansion in judicial review cases requiring
urgent action. Nor is there evidence that the permission
stage in judicial review has become too lax, letting
through groundless claims.
It is important that the system strikes a balance
between the interest of claimants and defendants so
that justice is done. The proposals in the Bill risk
tilting that balance too far in the direction of the
defendant. The charge that judicial review has become
a campaigning tool for pressure groups does not seem
to be recognised by those who know the field well. The
Bill’s proposals would raise the threshold for bringing
a case, and in various ways would increase the financial
risk for those bringing a case and for charities and
other bodies wishing to intervene in a case. It seems
inevitable that it will be the individuals and groups
with a sufficient financial base that will be able to risk
losses and enter into the judicial review process.
Many other aspects of the Bill will merit close
examination. For example, we may need to consider
the extra burdens to be placed on the already hard-pressed
Parole Board, as has already been mentioned. The
fixed-term recall for some others is another issue. At
this stage, however, it is the proper care of troubled

oversaw the cases they supported or intervened in. I
know how important those cases were: for example,
the decision that a local authority’s blanket ban on
manual lifting and handling,which deprived two seriously
disabled sisters of any control over their lives, was
unlawful. That ruling has had a life-changing impact
on the practice and procedures of all local authorities.
Although we are not here to discuss legal aid today,
the proposals in Part 4 of the Bill must be considered
in that context. The legal aid changes will make it
harder for people to secure advice and representation.
Increased fees already make it more difficult for those
without means to access judicial review. Part 4 will
introduce further barriers, and may restrict judges’
discretion to act fairly in cases that should be heard in
the public interest.
I have questions to put to the Minister in two areas
of these proposals. The first relates to the “no difference”
test. Clause 64 will require judges to refuse judicial
review where, even if a local authority acted unlawfully,
the outcome would be “highly likely” to have been no
different. Consider a failure by a local authority to
consult the community in its decision to withdraw a
service. Are the Government really asking a judge to
“guesstimate” what the outcome of that consultation
might have been and what disabled people might have
said in response? Will he then guess how the local
authority might have responded? Is second-guessing
part of the judge’s role?
The second area for the Minister relates to the
disclosure of financial information. Under Clauses 65
and 66, judicial review claimants will have to provide
information on their financial resources before their
claim can proceed. The Government say that they
want to stop claimants being used as “human shields”
by unscrupulous persons trying to avoid court costs.
That really does not ring true to me.
Of concern is the worrying effect of these measures
on poorer claimants and those who are willing to
support them if they cannot get legal aid. If my cousin
gives me £5,000 to help me challenge a decision about
my support, will that open up the spectre of an order
for court costs, putting her home at risk? What about
lawyers volunteering their services pro bono? Would
their gifts in kind put them at similar risk? If not,
where is the reassurance in the Bill? I hope that the
Minister will clarify this.
The Joint Committee onHumanRights has published
a powerful critique of these proposals. I had the
privilege of serving on that committee and I know
how hard it works to reach a cross-party consensus on
politically contentious cases. I wholeheartedly endorse
its conclusion that the case for change is not made and
that Part 4, if not heavily amended in Committee,
should be rejected. But I am heartened today by the
Minister’s comments that having listened to concerns
raised on this in the other place, he may consider
amendments in Committee. I look forward to holding
the Minister to this when he returns in Committee,
and I will be back too.
Disabled people, more than any other group, have
experienced the cumulative burden of myriad government
reforms in recent years. Please let us not make access
to justice the final injustice.

Posted by veronica Cooke, (filed and posted) Katherine Gleeson
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