Criminal Justice and Courts Bill

Debate between Lord Grayling and Geoffrey Cox

Tuesday 13th January 2015 Commons Chamber

[Chris Grayling]

I have set out a number of examples. On Second Reading I referred to cases where essential infrastructure projects have been delayed by judicial reviews that have been brought for reasons that we do not regard as acceptable. I have experienced in the Department attempts by third parties to delay necessary reforms through judicial reviews brought on technicalities. This is a reform that is needed. Comments made over the years by Ministers in the last Government also underlined that they themselves believed that reform was necessary.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

I am grateful to my right hon. Friend for listening most carefully to some of the matters that were raised in this House and the other place in relation to the clause. I can see the way in which he is considering alleviating some of those problems, but is there any particular precedent for the phrase “exceptional public interest”? I cannot find it in any previous statute, nor am I familiar with it as an example in any other legislation. I am not quite certain what it means. I can understand that there might be exceptional circumstances, which might lead a judge to find that those in the public interest meant that the matter should be allowed leave to proceed, but the phrase “exceptional public interest” has caused me some difficulty. What is the model on which he has founded this approach?

[Chris Grayling]

My judgment was that a conventional level of judgment against public interest was not sufficient in this circumstance. We have discussed it extensively in the Department among my ministerial team and with our advisers. I have no qualms about setting a higher test. It will be a matter for the judges to decide how and when that test should apply. As my hon. and learned Friend would expect, rightly, the judges should have the discretion to do that. But I do not think it is unreasonable for this place to say that it wants a test that is a bar higher than the conventional public interest test and that this should be used only in exceptional circumstances.

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[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

I will, I hope, be very brief. As the Secretary of State knows, it was in response to me that he made the mistake for which he has graciously and fully apologised to the House. I, for one, accept that it was entirely inadvertent.

However, I have two real points on the original clause 64 and amendment 102B in lieu. First, when my right hon. Friend wrote to me on 4 December 2014, he said in his concluding paragraph:

“I would like to make it clear that the clause as introduced strikes an appropriate balance, and where there is any real doubt that there could have been a substantial difference for the applicant, the court will be able to find that the threshold had not been met and can grant permission to proceed with judicial review.”

What that arouses in me is this reflection: the current rule developed by the courts is that where the outcome was “inevitable”, the court is enabled under the current authorities to decline a remedy. I ask my right hon. Friend, when he concludes this debate, to point out where there is a difference. If he is correct in saying that where there is any real doubt, the court will still be able to grant leave, how does that differ from the current situation? If the position is inevitable, the court will not grant a remedy now. Where there is any real doubt, it will grant a remedy. It is therefore difficult to see whether the common law test on whether the outcome is “inevitable”, despite the procedural defect, is affected very much by being changed from “inevitable” to “highly likely”. I am therefore puzzled about why we need this particular change.

I am relieved to have heard the tone of the speech of the hon. Member for Hammersmith (Mr Slaughter) from the Opposition Front Bench, because I am able much more easily to agree with him that there are substantial problems with the clause as drafted, specifically the one I have pointed out previously: it places judges in the invidious position of effectively having to take the decision themselves. They go from being reviewers of a decision to being decision makers. If we are asking somebody to say what would have happened had the facts not been as they are and how a decision is likely to have been taken, the judge is inevitably going to have to ask, “What would I have done, based on the evidence that is being put before me? What would a reasonable person have done?” That places the judge in the invidious position of being much closer to a decision maker.

The courts studiously avoid doing that. They adopt the position of being reviewers of a decision and they are enabled at the moment to decline a remedy when a matter is utterly obvious and inevitable because that does not put them in the position of having to second-guess the decision of the proper constitutional authority that has made the decision they are reviewing. When it is obvious and inevitable and when no reasonable person could come to any other conclusion but that the decision would have been the same, the courts are not in the position of having to speculate about how a reasonable person—how they, the judge—would have approached the problem in the same circumstances based on the evidence.

That is why I think the provisions represent a fundamental change constitutionally. It is one that Conservatives should lament, because instead of the courts allowing the proper body—the Executive—to take the decision, the Executive are inviting the court to place itself in the position of taking that decision. As a result of frustration with procedural defects that seem to the Executive not to be particularly meritorious and to hold up Executive decisions, they are saying to the judge, “Well, you take the decision. You can take the decision and you can say that it would have been the same anyway.” That is constitutionally wrong and it is something that the courts have avoided—in my submission, rightly. That is why I voted against the Government on the last occasion and why I am afraid that unless my right hon. Friend the Lord Chancellor can persuade me today I shall vote against the Government again. This is a point of principle and an important one and it is not affected by the Government’s amendment in lieu, which I otherwise welcome.

As for amendment (a) in lieu, I have never come across the expression “exceptional public interest” and I do not understand what it means. Every public interest is exceptional and the only public interest that is likely to be at stake is the public interest in fair and decent governance. Fair, consistent, rational administration is the public interest at stake in allowing somebody or an Executive authority simply to avoid the consequences of an unfair procedure. What other public interest would there be but that? It would simply be a case of someone saying, “I think this is so unfair that even though I think I probably would have decided it in the same way had the procedural defect not taken place, I still think leave should be granted.” That seems nonsense with which to confront a court, and my regretful submission —regretful, because I find it extremely difficult to diverge from the Government, particularly as I believe that my right hon. Friend ought to be commended for rethinking this and considering his new amendment—is that I would like him to consider whether it might not be better drafted. For example, I really do not understand why it could not have said something like, “There are exceptional circumstances that make it in the public interest for the application for permission to be granted.” I do not understand what is meant by “exceptional public interest”. Although I applaud the sentiment behind the amendment, I am not able to support it as drafted.

In the previous debate I adumbrated my concern about the proposal to put judges in the position of decision maker and to make applications for permission cumbersome and evidence-heavy. Public authorities will be induced to bombard the judge with all the reasons, even if they are wrong about the defect in procedure, that the decision would inevitably have been taken or, in this case, highly likely to have been taken. The judge will then have to embark on an inquiry at permission stage into whether or not it is highly likely that the decision would have been taken. That will induce evidence to be submitted by the other side, and so permission hearings will be unwieldy.

For all those reasons, I shall listen attentively to what my right hon. Friend the Secretary of State says in concluding the debate, but I regret to say that it will take considerable persuading to induce me to vote with the Government on this occasion.

[Chris Grayling]

With the leave of the House, I shall say some brief words in response to the two contributions.

First, the shadow Minister, the hon. Member for Hammersmith (Mr Slaughter), argued that the reforms are wrong. I simply remind him that, time after time when Labour was in government, we heard Ministers arguing about the impact of judicial review on Government and the need for change. It is interesting that Labour takes a very different view now that it is in opposition.

What Labour is actually arguing for is anonymity for people who provide financial backing to a judicial review. That anonymity would apply not just to a small backer, but, for instance, to a tobacco company using a third party to judicially review the Government’s public health policy. I simply do not understand why Labour would oppose the idea of a court knowing who is funding a judicial review to a major degree. We will simply have to disagree on that.

It was interesting to hear the shadow Minister say that if, heaven help this country, Labour finds itself in government in May, it would restore judicial review to its current position. I did not hear him commit to introducing primary legislation to reverse our measure. I would wage the usual fiver that, in the unhappy event of the Labour party being in government again, it will not seek to reverse our reforms.

My hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) and I are clearly not going to agree. The point about the amendment on procedural defects is that it ensures that a public authority cannot commit a major breach of procedure. It also ensures that a public body that commits a minor and unimportant breach of procedure cannot then face a substantial bill as a result of someone using that breach to bring a case when there is little likelihood of a different decision being taken. That simply ties up the costs and staff time of public bodies for weeks on end on a matter that is only really ever brought for campaigning or delaying purposes. I assure my hon. and learned Friend that the Government see regular examples of cases being threatened or brought on precisely that premise.

My hon. and learned Friend mentioned the stipulation of exceptional public interest. Put simply, there are many matters that are of general public interest and we are seeking to set the bar higher. It seems to me to be a simple proposition to say that a court must certify that a matter is of exceptional public interest—which might relate to a major, fundamental and worrying breach of procedure by a public body—rather than of general public interest. As a Government and, I hope, a Parliament, we are consciously setting the bar one notch higher. That is what the measure is designed to do.

I am afraid that I do not agree with my hon. and learned Friend’s point about judges being forced to make or evaluate a decision themselves. If a judge is able to decide whether a ministerial decision is irrational, quash a Government decision and send a major policy matter back to the drawing board, surely they can also decide that a matter is so minor that it would not have led to a different decision being taken. That is the purpose of the measure.

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[Chris Grayling]

The whole purpose of the reforms is to protect public bodies against cases brought on a technicality. One of my concerns that has not been addressed is about secondary legislation. I have severe doubts about whether secondary legislation should be subject to judicial review, but it is; Parliament itself can be judicially reviewed.

The reforms are not designed to undermine the core purpose of judicial review. They will ensure that we apply common sense to the process, and that decisions are taken by the courts only when appropriate. They will ensure that public bodies cannot be in effect blackmailed by a judicial review, and that campaign groups cannot use judicial review to string out a process or to delay change to make a political point.

[Mr Cox]

I would be most grateful if my right hon. Friend addressed the point I raised. What is the difference between the current common law test, which enables courts to allow leave or a remedy in a case of inevitability —in other words, if it is obvious and inevitable that the decision will be the same, the courts already have the power to say, “No, you can’t have leave or a remedy”—and his proposed test, in clause 64, about whether it is “highly likely” that the decision will be the same?

[Chris Grayling]

My hon. and learned Friend mentions the common law approach. When it was introduced in 1974, judicial review was a limited remedy for individuals who felt they had been badly wronged by a decision made by a public body, central Government or local government. Over the years since, it has become very different, and it is now overtly used by campaign groups and third parties to seek to disrupt the process of government. He is absolutely right to say that the common law approach exists, but our judgment as a Government—I hope and believe that, at the end of the debate tonight and of the one to follow in the House of Lords, it will also be the judgment of Parliament—is that Parliament needs to set in place some tramlines within which the courts can operate. We do not want to undermine, remove or destroy judicial review; we want it to be used in the right and proper way for which it was originally intended, and that is what the reforms are designed to achieve.

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[Chris Grayling]

Let me give an example of one consultation response that we received when we put forward our thoughts about the changes that are needed. A group of local residents who were challenging a planning decision formed a limited company, with a small number of directors each paying £1 to the company funds. The respondent considered that by doing that the directors aimed to avoid any adverse cost consequences if the challenge was unsuccessful, and that could have meant significant costs to the taxpayer in terms of defendant legal costs that might otherwise have been recovered from a losing claimant. The respondent also said that other local residents were horrified that that small group could hold up democratically agreed development at such small financial risk to themselves.

There are two parts to that example. First, there is the financial element, and one thing I would expect us to do in the consultation is consider the use of shell companies—a shell company was used in the much discussed Richard III case. There is also the point about exceptional public circumstances. I listened carefully to and talked after the last debate to my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who suggested possible forms of words to use. We looked at that option and discussed others, and decided that the exceptional public interest threshold best achieved the goal. It may not have existed in legislation until now, but that is no reason for it not to exist henceforth. These are straightforward terms in the English language, and we are simply setting the bar one step higher than public interest. A routine matter can generally be deemed to be of public interest, and we are discussing introducing an exceptional level to that.

[Mr Cox]

Does the Secretary of State mean what he said a few minutes ago, which is that cases of really egregious unfairness might afford a basis for declining to dismiss the case, even when the outcome is likely to have been the same? Is that what he is thinking of, because a few moments ago he mentioned something that is a serious or grave departure from fair process. If that is what he means, there is a better way of encapsulating it than the current drafting.

[Chris Grayling]

We will probably beg to differ on that, but my hon. and learned Friend is absolutely right. One of the circumstances in which I could envisage the amended clause being used is if a public body has blatantly flouted the way in which consultations should be managed and procedure handled, but it is likely that the ultimate decision would have been the same. It is reasonable for a court to then say that that is simply unacceptable—that it is a matter of exceptional public interest that a public body of this kind should be able to behave in such a completely cavalier way—and it will therefore allow the case to go forward. The amendment gives the judge the freedom to take that decision. It was our judgment that it accorded that freedom, but it also achieves our goal of ensuring that permission is not given for technicalities, which is particularly important.

Criminal Justice and Courts Bill

Debate between Lord Grayling and Geoffrey Cox

Monday 1st December 2014 Commons Chamber

[Chris Grayling]

In that particular case, we fulfilled the orders of the court after the first judicial review hearing. I did not agree with the judge in that initial ruling. I considered an appeal, but looking at the detail of the ruling, I decided that it was more in the interests of the system that we were trying to protect and develop to move ahead with a further period of consultation. That is what we did, and we have published our responses arising from that consultation. We took the opportunity to revisit our original decisions and to look at whether any further changes needed to be made. That was embodied in the document that we published last week.

There are three simple principles in the areas of debate covered by these motions. I challenge the Opposition to explain why they so strongly disagree with those principles. First, parties should not be able to use minor technicalities in process as an excuse to bring a judicial review in order to delay an essential decision when there is very little likelihood that the outcome would be affected by that technicality. It is a simple principle. There is an exceptional circumstances clause which still allows judicial discretion in cases where there is a particularly distinctive characteristic, but this is designed to stop organisations judicially reviewing a process on the basis of a minor flaw in process, only to have the effect of delaying a difficult change—delaying for financial reasons and trying to push a change back a few months so that the financial impact is not felt as soon.

That is the reality of what is happening, and this proviso seems a perfectly sensible means of ensuring that the Government can take decisions in a timely and necessary way. In the unhappy event that the shadow Secretary of State finds himself in my chair or his colleagues find themselves in other Ministers’ chairs, they will think that it is sensible and logical way to make sure that the wheels of government move at an appropriate pace.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

I hope that my right hon. Friend accepts that some Government Members, and I include myself, have some concern about the reforms he is promoting. Will he help me to resolve a very difficult dilemma by telling me and the House what he regards as a minor technicality? Judges do not generally grant leave for judicial review on minor technicalities—it has to be based on matters of serious abuse of fair process—so I am concerned and troubled by what he considers a technicality.

[Chris Grayling]

I hate to disabuse my hon. and learned Friend, but such cases happen all the time and very regularly. Very early in this job, I faced a judicial review—we eventually won it after a hearing, but only following a delay and some considerable cost—from a representative group that argued that changes to a part of the compensation system should not proceed because of a technical detail concerning how the consultation had been carried out. It went to a hearing, which we won, but it cost the taxpayer substantial amounts of money and delayed the process. It was on a technicality, and there was no likelihood of there being a different outcome. If he talks to Ministers from across the Government, he will find that such cases happen regularly—for example, if a nuance of a consultation has not been done thoroughly or properly, or if it was fractionally shorter than the precedent for similar consultations. I am afraid that such cases do happen, and they delay the wheels of government. Let me talk about the other two areas, because they are also acute problems.

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[Chris Grayling]

The “exceptional circumstances” provisions would allow a judge to say, “This is a flagrant case and must be heard.”

[Mr Cox]

I hear the Secretary of State, but the Bill does not refer to “minor technicalities”; as the Bill reads, the default position would be that any abuse of due process or power could be justified and defended on the basis that the decision would in any event probably have been taken. It is difficult to make “exceptional circumstances” clauses work, because the courts say, “Well, ‘exceptional circumstances’ cannot mean a lack of fairness or an abuse of power.” I have spent many years examining these kinds of clauses and arguing them in the courts, and I know that “exceptional circumstances” clauses are rarely invoked, because courts are reluctant to acknowledge them as a standard resort in such circumstances. It would take something extreme indeed for a court to be persuaded it was exceptional. On the other hand, abuses of power happen quite often, I am afraid, and the clause is likely to condone those abuses of power, whereas often where there is an abuse, it is right that the decision be taken again.