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 When Parliament repealed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.
Link http://www.parliament.uk/business/publications/hansard/lords/todays-lords-debates/read/unknown/115/
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