Criminal Justice and Courts Bill

Debate between Lord Grayling and Frank Dobson

Monday 1st December 2014 Commons Chamber

[Chris Grayling]

A Minister is confronted by the practical threat of the arrival of a judicial review case virtually every week of the year. It is happening all the time. There are pre-action protocols all the time, and cases are brought regularly. Looking across the majority of a Department’s activities, I would say that Ministers face judicial review very regularly indeed. It happens weeks apart rather than months apart.

[Frank Dobson (Holborn and St Pancras) (Lab)]

Will the Secretary of State give way?

[Chris Grayling]

Let me set out the other two areas covered by the reforms, and I will then give way to the right hon. Gentleman.

The second thing we are trying to do is to stop third parties using people with no means as human shields, and effectively bringing broad-ranging cases on public policy by acting as interveners behind and alongside them, while being immune to financial risk if they lose. That is customarily discussed in terms of pressure groups, but it actually applies to big corporations as well.

The third reform applies in a similar way. If an organisation brings a judicial review, we should know who they are and who is backing them. Of all the disagreements of the House of Lords, I understand this one least. How is it possible for a judge to take a decision on costs and other aspects of a judicial review if he or she has absolutely no idea who is responsible for bringing it? Is it not right and proper for the court to know?

Let me give an example to challenge Labour Members. If a large international, such as a tobacco company, wants to challenge the Government on a public policy decision, it can, under the current rules, set up a shell company, with a single—probably impecunious—director and use it as the front for the judicial review. If that happens, is it not right, proper and sensible for us to know which corporation is backing the judicial review? Labour Members may say that it could never happen, but it happened in the Richard III case, when a shell company with a single impecunious shareholder brought a judicial review against the Government, which cost the taxpayer a significant six-figure sum. It can and does happen.

Why on earth would anybody disagree with the principle that if an organisation brings a judicial review, we should know who it is and who is backing or supporting it? Why is that so unreasonable? I simply do not understand why the Labour party lined up with Cross Benchers in the House of Lords to oppose it. What is wrong with the principle? I challenge shadow Ministers to say—I will happily take an intervention—what is wrong with the idea that a court should know who is backing a judicial review or who is behind it?

--- Later in debate ---

[Chris Grayling]

I am afraid that that is complete nonsense. The amendments that we are discussing do not involve any financial risk at all. They are simply about the court knowing who is backing the judicial review. They are purely for information. I do not believe that it is unreasonable for a court considering a judicial review to know who is backing it, and I am baffled as to why the Labour party opposes that.

We do not have much time for this debate, so I will focus my detailed remarks on clause 67, but I said that I would take another intervention.

[Frank Dobson]

The right hon. Gentleman talks of technicalities, but the law is full of technicalities—that is all it is. He says that Ministers and officials are frightened of judicial review, and so they should be. The pressure on them is to comply with laws and regulations that we have passed. We are encouraging law breaking if we let someone say, “Well, it’s okay. You can skate over that, or you can skate over this. You can get away with it. It was only a minor technicality.”

[Chris Grayling]

I am afraid that that is simply not right. Very many judicial reviews are not about whether we have broken a law passed by this place—of course, we must be challenged if that happens—but are based on a much looser interpretation of what should or should not happen. They are based not on statute, but on, for example, why we have run a consultation for six rather than nine weeks, given that the previous one was for nine weeks. The truth is that such arguments are brought to the courts by people who seek to delay the impact of decisions. I must say that if Labour Members find themselves taking difficult decisions in government after the election, they will discover that a judicial review’s ability to delay key decisions is against the interests of this country, and they will wish that they had supported rather than opposed us.

As hon. Members will see from the amendment paper, we will ask the House of Lords to reconsider its opposition on most of the measures. We listened very carefully to the concerns expressed on clause 67. We disagree with the Lords amendments, which undermine the clauses agreed by this House. Each amendment would take the heart out of the reforms by undermining any duty to give effect to the key requirements. However, we have listened very carefully to the concerns expressed on clause 67, and we have moved by proposing an alternative model.

If this House approves the amendments in lieu, clause 67 will continue to give the courts significant leeway in making cost orders. It will be for the court to consider whether any of the four conditions have been met. It will preserve the court’s role in deciding whether costs were caused by the intervener and incurred by the party reasonably. Where the court is of the view that exceptional circumstances would make the award of costs under the clause inappropriate, it need not make an award.

That is a crucial point on all of this. There are still provisions that give the judiciary the freedom, in exceptional circumstances, to say, “This is a particularly distinctive case, and we need to pursue an approach that is different from the norm.” We have left in provisions for such exceptional circumstances, but on clause 67 we have taken on board some of the concerns expressed. The amendments in lieu are not about preventing legitimate intervention in support of a case brought on behalf of a disadvantaged individual, but are about preventing a powerful group from using someone with no money as a human shield for a case in which the group intervenes behind that individual, with the public picking up the cost regardless of whether the case is won or lost. That should not happen.

We believe that the amendments in lieu strike a sensible balance. They meet the concerns expressed by hon. Members from different parts of the House in a way that will reassure both them and those in the other place that our intention is to tackle the challenge of such human shields, not to remove altogether the ability to intervene in cases where there is a legitimate reason for doing so.