Criminal Justice and Courts Bill

Debate between Baroness Lister of Burtersett and Lord Lester of Herne Hill

Tuesday 9th December 2014 Lords Chamber

[Lord Lester of Herne Hill]

Mr Geoffrey Cox, a Conservative Member of Parliament, asked the Secretary of State for Justice what he meant by “a minor technicality”, and he replied by giving examples of a failure of proper consultation. In my experience, a failure of proper consultation can be a very serious matter. I want to give just two examples of cases that I was involved in—one I won and the other I lost. One was about closing Barts Hospital. A judicial review challenge was brought on the basis that the Minister had not properly consulted before deciding to close the hospital. The judge exercised discretion in any event, and we lost. However, it was a very important exercise because it involved the court in calling to account what the Minister had done to see whether it was an abuse of power; it was not.

In the other case, involving a Labour Government, the consultation was about the Export Credit Guarantee Corporation and whether the new rules on anti-corruption had been properly consulted on. It turned out that the only people who had been consulted were large corporations. A small NGO, the Corner House, brought a challenge based on the fact that it was not a proper consultation, and it succeeded. As a result, the Minister had to do a further, proper consultation and to beef up the anti-corruption rules. I give those two examples to show that the Secretary of State for Justice simply does not appreciate how important a breach of procedural good government can be in a particular public interest case.

I want to say two other things. One is that the Joint Committee on Human Rights, on which I serve, has repeatedly pointed out that the Government have produced no evidence, as distinct from ideology, to justify the changes that are being contemplated and are now the subject of ping-pong, and they still have produced no evidence. The Constitution Committee, on which I also have the privilege of serving—not a left-wing, radical, subversive organisation—led by its chair, the noble Lord, Lord Lang, on 4 July asked the House to reflect on the wisdom of the Government pressing ahead with the reform to judicial process despite the warnings of the judiciary. In spite of the Constitution Committee ringing the alarm bell and repeating the warnings—I will not bore the House with the details—the Government went ahead. As far as I can see, neither of these reports was even referred to by Mr Grayling in the debates in the other place.

It is very important, if we have expert committees that are advising both Houses, that at the very least Ministers do them the courtesy of replying to them in the debate, and they have not done so. I cannot match the eloquence of the noble Lord, Lord Deben, or the eloquence and wisdom of my noble kinsman, the noble and learned Lord, Lord Woolf, in what they have said, but I very much hope that we will rise above party politics this evening.

[Baroness Lister of Burtersett (Lab)]

My Lords, like the noble Lord, Lord Deben, and the noble Baroness, Lady Campbell of Surbiton, I speak as a member of what was last week dubbed the sisterhood and brotherhood of non-lawyers. It is very important that non-lawyers speak in support of lawyers on these issues because, as the noble Baroness, Lady Hamwee, said at Second Reading of the Bill, “These are citizens’ issues”. We are talking about the most marginalised, powerless and voiceless citizens whose concerns are at stake.

I speak also as a member of the Joint Committee on Human Rights. We opposed the original clause on grounds of both principle and practice, including the argument put so powerfully by the noble Lord, Lord Deben, that we should not condone unlawful decision-making. This is of particular importance to the enforcement of the public sector equality duty, a point which has been made to us by the Equality and Human Rights Commission. I declare an interest as the honorary president and a former employee of the Child Poverty Action Group, which, as Sir Stephen Sedley has pointed out, was a pioneer in the use of judicial review to further the interests of children in poverty and their parents and played an important role in elucidating the law on social security to the benefit of everyone involved.

I will recount briefly a recent case that is relevant also to Motion D, in which the CPAG acted as an intervener. It was a judicial review against a decision to cut the funding for local welfare assistance schemes—which replaced the discretionary social fund—which we know, from a growing body of evidence, is causing real hardship. The decision has taken place without consultation and without first carrying out the review that had been promised to Parliament during the passage of the Welfare Reform Act 2012. As it happened, the Government settled the case—they clearly did not think that they would win it—and have now consulted. The CPAG’s solicitor said to me that if the Government’s version of the Bill becomes law, this intervention probably would not have been possible,

“because of the uncertainty around whether our charity would end up liable to pay costs. As a result, the Courts would have been ignorant of the broader issues at stake”.

Indeed, the case may not even have got permission because the Government might have argued that, even if they had consulted, their decision would have been highly likely to be the same. I hope that that does not prove to be the case. We do not yet know what the decision will be. However, in answer to a Written Question just the other day, I was told that they have had over 5,000 responses to that consultation. That is not a mere technicality; that is about listening to what local authorities and other citizens of this country think about this issue.

To echo the very powerful speech of the noble Lord, Lord Deben, at issue here are the accountability of the Government, the rule of law and access to justice—the very kind of principles that your Lordships’ House has traditionally upheld. I hope very much that your Lordships will uphold them again today.