Jeremy Beecham outlines our main concerns with the Coalition’s latest criminal justice Bill
Another parliamentary session, another criminal justice Bill. And once again, we are presented with the customary mix of the worthy and welcome, the half-baked and the harmful.
Parts of the Bill are certainly welcome, for example the provisions about police corruption, extreme pornography, and care worker offences of ill-treatment or wilful neglect. But others, notably those dealing with secure colleges and judicial review, demonstrate the propensity of the current Government to indulge in grandstanding on issues of crime and justice. What makes it even worse is that Lord Chancellor, Chris Grayling does so on the basis of the most tenuous evidence and with a disturbing determination to curtail judicial discretion.
Two provisions in the Bill stand out in particular: Secure Colleges for Young Offenders and Judicial Review.
On the first of these, the Government is already appointing a contractor to build a three hundred place college, which would house young offenders in detention. The objective of providing education is welcome. But it is self-evident that many youngsters would be a long way from home and there are serious questions about the desirability of housing girls alongside boys, or the youngest offenders with those in their later teenage years. Wholesaling and warehousing large numbers of damaged and vulnerable youngsters is not acceptable. The Government should pilot a much smaller scheme with a narrower age range, close to where the children come from.
Ministers will once again will rely on some private sector provider, like Serco, to run the establishment – including the right to use force to maintain good order and discipline. This however, goes against the advice of the Joint Committee on Human Rights (JCHR) that the use of force on children and young people for such purposes is incompatible with the European Convention on Human Rights. The use of reasonable force on children should only be used as a last resort, for the purposes of preventing harm to the child or others - and with the minimum force necessary. We have had too many disturbing accounts of excessive force being used by private contractors on inmates at Yarls Woods and on deportees, to countenance the possibility of similar actions in secure colleges.
On Judicial Review, the Bill will make it much more difficult to challenge the lawfulness of decision making, especially for those with limited financial resources. Once again, Ministers are imposing a mandatory requirement on judges to refuse relief at the permission stage, “if it appears highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred”. How can the Court do that without a full consideration of the case? And in that event, where is the saving? Moreover, if procedural or legal errors are made there must be some mechanism by which those failures can be challenged – even if the ultimate outcome is the same. That is what the rule of law requires.
A provision requiring the Court, when determining costs, to take into account the finances and membership of applicants is clearly designed to discourage or deter organisations and supporters, charities, solicitors acting pro bono or even family members from supporting a claim where no legal aid is available. The principle is extended to ‘interveners’ – those who, after applying for leave of the Court to intervene, take part in the case and can then be required to pay their own costs but also anything incurred by other parties as result.
As the Court already has a discretion in these matters, including this provision is a clear threat to organisations like Liberty, Justice and the Howard League, all of which have played an important part in defending the rule of law. Mr Grayling meanwhile, has claimed pressure groups use individuals as “human shields to challenge the government” – a claim rejected by the JCHR and the Public Bill Committee.
On both of the provisions I have highlighted, Labour will work with Peers from across the House to either oppose or improve the Bill. But there are thoughtful members on the Government benches who must share some of our misgivings and I hope that they too will work with us in the interests of justice.
Lord Jeremy Beecham is Shadow Justice Minister in the House of Lords
Published 30th June 2014