“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 from effective legal challenge” – Bishop of Oxford, 30/6/14
On 30th June 2014, the Bishop of Oxford, the Rt Revd John Pritchard, took part in the Second Reading debate on the Government’s Criminal Justice and Courts Bill. During his speech, he focused on two particular areas of concern – the proper care of troubled children and the role of ‘secure colleges’ and the need for a fair and effective system of judicial review and legal aid to be available to all, regardless of their material situation.
The Lord Bishop of Oxford: My Lords, I am not among those who decry the frequency with which criminal justice Bills come along. The world is changing fast and the shapes assumed by criminality change no less quickly. It is important to respond to change and to take care that the unchanging core of justice—a British value if ever there was one, as well as a Biblical value—is honoured both in the detail and in the overall direction of policy on the criminal law and its enforcement.
This fourth Bill of the present Government contains much that is welcome. For example, it makes prisons slightly safer places through allowing non-controlled drugs to be tested for at a time when some prescription drugs have become a destructive form of currency. It will also make some vulnerable people safer from the tiny minority of care workers who may ill treat or wilfully neglect them. It will increase protection from extreme pornography and appropriately raise maximum sentences for malicious communications. All that is welcome. It will ensure that cautions will be issued to 17 year-olds only in the presence of an appropriate adult. That will complete the changes made to police procedures so that all children under 18 are treated as children, which they are.
Children and young people are a particularly high priority for me as much of my time is spent supporting the causes of education and services to children and young people. For that reason, I am especially interested in the proposals for secure colleges. I hesitate to raise questions about secure colleges, since opposition to them has been authoritatively described in the other place as “bonkers”. One cannot deny the attraction of a vision of a college for children convicted of an offence serious enough to warrant detention which is just like a school surrounded by an unobtrusive fence and with a first-rate education programme. It sounds good. However, the Bill presents this vision in soft focus and with very little clarity of detail. That is where I get anxious.
The number of children in secure custody has reduced greatly in recent years, which is an achievement in itself. The children are looked after in relatively small institutions, which are small enough to focus on the individual. Even the larger young offender institutions in existence now are considerably smaller than the proposed secure colleges. Children from 12 years of age and upwards, currently held in secure children’s homes, would be in the secure college. Girls—again there are only a small number of them—would also be held there. What seems certain is that, on average, children would be held much further away from their home area than at present. We are told that specialist subunits on the college site would care for these minorities. No one quite seems to know how that would work.
One telling detail in the Bill is that it gives to secure college staff the power to use reasonable force to maintain good order and discipline. I must protest 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 from effective 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 children and the ability of people with fewer material resources to challenge decisions of those with executive authority that I wish to emphasise as legitimate concerns for the House.