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.

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

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