Criminal Justice and Courts Bill

Baroness Kennedy of Shaws Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Phillips of Worth Matravers (CB)]

My Lords, if those in this Chamber who were opposed to these amendments at the start of this debate have not been converted by what they have heard, nothing that I can add is going to convert them. I simply say to the noble Lord, Lord Tebbit, that Parliament did not create judicial review; the judges did. It was, I hasten to say, before I became a judge and was one of the best things that our common-law judges have ever done. These amendments are designed to ensure that Parliament does not damage that which the judges created, and they deserve the support of this House.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I know that there is always a sigh in this House when a debate is dominated by lawyers. However, I remind the House that sometimes it is lawyers who know the pain that citizens in our country experience, because we represent them, and that this is about the actual lives on which judicial review has an impact. It is always about the person whose business is to be closed down from trading, based on a department’s or a local authority’s decision that they want to challenge, or the person whose mother is in a care home and suddenly finds that it is being moved or closed down, with no consultation as to the impact on her and her family. It may be about the effect on a disabled child of a decision about their schooling. Those things are about real people’s lives and that is why this is not just a constitutional debate of high flown words or complicated legality—it is about the real impact on the lives of ordinary people.

When your Lordships come to vote in our Lobbies, as I am sure you will be asked to do, I say to those of you who are not lawyers that this is really about people’s lives and about the law coming into play to protect citizens. That is why lawyers and organisations such as the Bar Council, the Law Society and Justice—cross-party and no-party organisations—know why the rule of law matters in our nation and our democracy. This is not, I say to the Minister’s noble friend Lord Tebbit, about judges somehow usurping the power of Parliament. This is about justice, fairness and the things that we hold dear, so I say to my colleagues in this House who are not lawyers that this is not a festival of lawyering. It is about ordinary people.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, we now turn to Part 4 of the Bill, which has proved to be one of the more contentious areas at Second Reading, in Committee and today. The debate has ranged far and wide and it has been magnificent. We have discussed the constitution of the United States, the merits of the European Union, the Council of Europe, King Charles I, fracking, the Severn barrage and HS2, to name a few topics. I am sure that noble Lords will understand if I do not deal with all of them.

Similarly, there have been speeches of an omnibus nature, particularly by the noble Lord, Lord Beecham, and my noble friend Lord Marks, in the sense that they have covered matters beyond Clause 70. I will deal with those arguments when we come to the relevant groups. We are focusing on Clause 70 at this juncture. The Government have listened with great care to the arguments raised by noble and learned Lords and noble Lords during those debates. I assure my noble friend Lord Cormack that I have listened carefully again this afternoon to the speeches made by a large number of your Lordships. However, we do not resile from our central contentions, which I trust the House will allow me to set out briefly.

First, it is our contention that judicial review, when used properly, is an essential component of the rule of law. It allows individuals and businesses to invite the court to test the lawfulness of public bodies’ actions. Secondly, judicial review as it presently stands is not always perfect. On several occasions, the Government have set out some of the examples of delay and cost which can be caused, such as the challenge to the exhumation licence concerning the mortal remains of King Richard III which the noble Lord, Lord Beecham, described as “ludicrous”, despite his own view that York is the more appropriate resting place.

Thirdly, while we have taken some steps, working with the judiciary where appropriate, to rebalance the current approach, such as through the creation of the planning court, some further reform is needed. Noble Lords may be aware that the use of judicial review has increased more than threefold in recent years from around 4,200 in 2000 to around 15,600 in 2013.

The noble and learned Lord, Lord Woolf, was kind enough during our Committee debates to offer me a copy of De Smith’s Judicial Review, of which he is a distinguished editor. I have to say that he honoured his pledge most generously. I have been in receipt of De Smith and I have done my best to reacquaint myself with its contents. The preface to the seventh and most recent edition reads as follows:

“English administrative law is now one the most celebrated products of our common law and doubtless the fastest developing over the past half century”.

We accept that many judicial reviews will be well founded and brought in good faith, and that much of the growth has been driven by the number of immigration and asylum cases, but it remains a simple fact that a well timed judicial review can delay the implementation of crucial policies or projects for months or even years. Even when decisions are perfectly in line with due process, months can be spent preparing for and defending claims when that time would be better spent taking forward the reforms that the country needs.

The debates have been, perhaps predictably, dominated by those with long experience of the law and, of course, on the government Benches we welcome the expertise which has been brought to bear, even if we do not always welcome the contents of all the speeches. However, there is another side to judicial review—one which pertains to what happens, or does not happen, outside the courtroom as judicial reviews proceed. As they proceed, arguments are made and countered; witness statements are prepared and probed; and fine points of law are weighed and determined. Crucial projects with direct implications for jobs are delayed, perhaps lost.

For example, a judicial review was initiated by a competitor to the proposed development of a supermarket in Skelton, North Yorkshire. That challenge was described by the judge at the earliest possible opportunity as “a hopeless case”. Yet work was delayed for six months. Irrespective of the rights and wrongs of the case itself, is it right that a hopeless judicial review can be used to such effect? The risk of this happening was recognised by that great judge Lord Diplock who, when emphasising the importance of the permission stage in judicial review said:

“The requirement may also prevent administrative action being paralysed by a pending, but possibly spurious, legal challenge”.

I quote from Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses 1982 appeal case 617 at page 643.

It is important that we do not ignore the fact that such cases place a considerable burden on the public purse in terms of the time of judges, lawyers, Ministers and officials. Overall figures are not recorded, and are probably not recordable, but by way of illustration, I can report that the total legal costs of the Richard III case to the Ministry of Justice alone have been put at more than £90,000, none of which is recoverable. Consequently, we make no apology for having taken some sensible steps already, and none for making a few more small but important changes.

Outside your Lordships’ House the debate about these reforms has been rather long on hyperbole. Reference has been made during the debate today, and indeed in Committee, to left-wing causes. Of course, I entirely accept that it is irrelevant whether a cause is left-wing, right-wing or apolitical. What matters is whether the challenge is justified and whether it has merit. However, I have seen it suggested that the Government wish to do away with judicial review altogether and even that these reforms will lead to imprisonment without trial. As I will explain, these fears are entirely ill founded. The Government believe that the roles of Parliament and the courts should exist within a relationship of mutual respect and co-operation. In that context, I should emphasise what the provisions do not do: they do not seek to undermine or fetter judicial discretion; they do not seek to challenge the basis on which judges approach questions of judicial review; and we have not altered legal standing, much as that was open to criticism. That was a response to the consultation paper.