Criminal Justice and Courts Bill

Debate between Baroness Campbell of Surbiton and Lord Woolf

Tuesday 9th December 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I support Motion B1 in the name of my noble friend Lord Pannick. Noble Lords will know that I have expressed serious concerns about Part 4 at every stage of the Bill, and I remain deeply troubled. I know only too well how much vulnerable people, especially those who are disabled, rely on state services and how catastrophic it is when things go horribly wrong. I feel that in the other place the Lord Chancellor is still peddling the line that judicial review has been hijacked by pressure groups for political campaigning, citing again and again the example of Richard III. If political campaigning includes campaigning for justice and people’s access to justice, then I am very happy to plead guilty; I am one of those campaigners.

The Lord Chancellor also said in the other place that tough times mean tough decisions and tough love. I agree with that, but judicial review is even more critical in times of stress—in tough times—to ensure that the Government do not ride roughshod over their citizens. These reforms must be seen in the context of cuts to legal aid which already hinder access to justice for those at the margins of society, especially disabled people. This is not an issue about lawyers protecting their status or income. I am sorry, but it just is not. Where is the evidence? It is truly about weakening the ability of ordinary vulnerable people to hold public bodies to account and increasing the power of the state.

Clause 64, if not amended, would require judges to refuse judicial review if the outcome would be highly likely to be no different. It would remove their discretion. We need their discretion. The Government want to exclude judicial review for what they call “minor technicalities” —for example, the need for a bit more consultation. So much for due process. Removing judges’ current discretion would allow unlawful or dishonest decisions to go unchecked and public bodies to be let off the hook. It would also dramatically change the role of judges in second guessing what might have been. I cannot understand it. It cannot be right. The amendments made by this House to restore judicial discretion were rejected in the other place. I thank my noble friend Lord Pannick for his Motion and entirely support it. I seriously urge all Members of your Lordships’ House to think beyond the campaigning and those odd cases where it may have been quite ridiculous and to think about the hundreds of very vulnerable people who will need this over the coming years as, I have to tell the House, things are getting really tough for us.

[Lord Woolf (CB)]

My Lords, it is always important to listen to what is said by the noble Baroness, Lady Campbell of Surbiton. She has an insight into these matters that Members of the House who come from a legal background, as I obviously do, do not have personal experience of. It is very apposite that she should have said what she just said. I hope that the House will heed her plea.

Knowing that the noble Lord, Lord Pannick, would have to go to Moscow, I am bound to say that I had prepared for him not to be here, and therefore had prepared a much longer speech than I am going to give. But I would like to add just one or two things. As I am sure your Lordships understand, this is a very important issue. If noble and learned Lords have any ability to assist and advise the House, then it was clear in the earlier stages of the Bill that this was something they thought was wrong. They gave their reasons, and I played a leading part in that. The reason we did so was that we thought it was going to be bad for justice, for the citizens of this country and for the reputation of this country as a leading adherent of the rule of law. Judicial review is all about the rule of law. Every application that has any prospect of succeeding initially has to prove that something happened which the Lord Chancellor and the judges would regard as being unlawful. So if you are refusing relief in this situation, you are doing it with regard to something which has been illegal, or is in a position where there could be illegality.

The second thing to remember is that the procedure for judicial review is an exceptional procedure, designed initially by the judges, but then enacted in what was the Supreme Court Act and is now the Senior Courts Act 1981, in Section 31, which sets out the position as to the jurisdiction of the courts. That section makes it clear that heavy responsibilities are placed upon the judiciary with regard to its operation. The safeguards are there, because they have a very heavy responsibility of holding the balance. The amendment we are now considering is a small one. It is in relation to the first amendment, which I am addressing. As required by the Government, the judge—the word in question is— “must”. As required by the amendment, the word is “may”. The difference between us is “must” and “may”. As you have already heard, in the House of Commons—and I am going to come back to this—the Lord Chancellor misled the House. I have to say that. I am sure the Minister will accept it. He said to it that each of the amendments—

Criminal Justice and Courts Bill

Debate between Baroness Campbell of Surbiton and Lord Woolf

Wednesday 30th July 2014 Lords Chamber

[Lord Woolf]

My Lords, I have added my name in support of the amendment that the noble Lord, Lord Pannick, has advanced so elegantly. It is perhaps appropriate that it should be considered this afternoon because it will be recalled that this morning I was gently—but I do not think appropriately—chided by the noble and learned Lord, Lord Mackay, for going too far in my comments about legal aid provision with regard to judicial review and the effect of the action being taken in that respect. I respectfully suggest that what we have just heard indicates that there is real reason to be concerned at the reduction of legal aid in respect of judicial review. The points made by the noble Lord, Lord Pannick, with regard to the shortcomings of regulations being used in respect of this area of legislation are very well founded.

[Baroness Campbell of Surbiton]

My Lords, I speak in support of all the amendments in this group, and in particular Amendments 82 and 85 in the name of my noble friend Lord Pannick. I must say that he has put down some very sensible amendments, which spoke to me—so much so that I decided to change my holiday plans and be here on the last day.

The issue of legal aid is inherently linked to the provisions in Part 4. It is part of a package of reforms that seem to have a very strong common thread—they make it so much harder to challenge public bodies when they act unlawfully. That right to challenge belongs to every citizen, whatever their background or means, but without legal advice and representation it is a truly empty right. That is particularly true of those at the margins of society who may be most affected when public authorities get it wrong—and sometimes they get it very wrong. I am particularly familiar with that territory due to my long career in social care and disability public services.

The legal aid reforms, which restrict its availability for judicial review, are one of the most damaging elements of this package. Coupled with the proposals on the costs of interventions and costs capping, they make it nigh impossible for the vulnerable to bring a claim. I supported my noble friend Lord Pannick in his Motion of Regret on the regulations that came into effect in April—not only for what they said but for the way in which they were introduced. The Joint Committee on Human Rights was highly critical of that. In their response this month, the Government say that legal aid for judicial review does not require a higher level of scrutiny. Honestly, that shows a remarkable lack of understanding of why judicial review is so important to the rule of law and why legal aid is so crucial to its effectiveness. Two weeks, ago the High Court ruled that the Government’s proposals for a residence test for legal aid were unlawful. We all remember that one. The Secretary of State had exceeded his powers and the test was discriminatory. The judgment confirms that the Government have been pushing the boundaries of what Parliament intended.

The Government’s approach to legal aid and their view of its importance to judicial review is deeply disturbing. However much the Lord Chancellor may disapprove, those who campaign for justice are entitled to legal aid to challenge the Government—or any other public body—when they get it wrong. Campaigning is in my DNA, which is why I support these amendments. I am a campaigner; not a left-wing, right-wing, or middle-wing campaigner. I am just a campaigner, who has been involved in judicial review to make society and our communities bigger, wiser and more effective. Again, that is why I support these amendments.