Criminal Justice and Courts Bill

Lord Carlile of Berriew Excerpts

Monday 28th July 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

I am grateful to my noble friend for giving way. I should declare the interest of having appeared for the juror in the case to which my noble friend referred a few moments ago. I make no comment on the case or the result, but the jury video and the instructions given to jurors were not perhaps quite as good as they might have been, particularly for a young juror under the age of 21 who used his social media almost as a part of his body. Can we be reassured that when these new provisions are brought into force a new jury video will be made available immediately, as well as revised instructions, so that jurors young and old, including those between the ages of 70 and 75 who also enthusiastically use their social media, really understand what they are not permitted to do? It can be very confusing.

[Lord Faulks]

I am grateful to my noble friend for that intervention. Clearly this matter should be taken very seriously. I do not think that these directions are frozen in time or form, and the debate as to precisely how best to communicate what there is agreement on over the use of electronic communications will go on. I entirely take my noble friend’s point about the degree of attachment to them that exists, depending on the individual and not necessarily depending on their age.

The new clause proposed would impose statutory obligations on the Department for Education, the Judicial College and HM Courts and Tribunals Service, and on jurors themselves, in connection with jury service. These obligations cover the same ground as some recommendations from the Law Commission, which we are still considering and to which we will respond shortly. The crucial point, however, is that if it were decided to implement them, or to make any further suggestions about improving directions to jurors or about jury management issues as opposed to trials of particular cases, legislation would not be required. It could be done administratively, and in our view that would be a better course than accepting the suggested amendment. I invite the noble Lord to withdraw it.

--- Later in debate ---

I hope that the Committee will look very critically at these provisions. They may not seem to be matters of very great substance, but there is a point of important principle here which has to be established and maintained.

[Lord Carlile of Berriew]

My Lords, I wish to make three short points in support of the noble and learned Lord, Lord Woolf. I do not know how long this debate is going to continue. We heard that the noble Lord, Lord Pannick, is unable to be here at the moment. I hope I will be excused for being absent for about half an hour from 5 pm.

The three points I wish to make are these. First, it seems that there is a belief that it is very easy to obtain permission to move for judicial review. For those of your Lordships who are not lawyers—and happily there are many here—I want to lay that belief to rest. Like myself and, in a much more distinguished way, other noble and learned Lords, anybody who has faced the challenge of a list of cases requesting permission for judicial review will know that a vast percentage of those applications are refused at the paper application stage.

I shall give your Lordships what might be a useful insight. The typical High Court judge or deputy High Court judge—and it is in that latter capacity that I have sat and continue to sit—is faced on any given day with about a dozen paper and oral applications for judicial review. My estimate, based on my own experience and on talking to others—there may be more formal statistics—is that at most one or two of those applications move on to the next stage, and the other 10 or 11 are refused. Nobody should, therefore, get the idea that it is very easy to challenge the Government or public bodies by way of judicial review.

The second point is about the phrase “highly likely”, which appears in Clause 64. I think the use of this phrase confuses especially the lawyers on the standard of proof which is required in judicial review applications. Does “highly likely” mean “more probable than not” or less than “beyond reasonable doubt” or what? Why do we need to add this almost tautologous standard of proof to a well honed system in which judges—who are, believe it or not, trained in these matters, and many of whom have great experience—know exactly what to do without an artifice being added for reasons which are not clear?

The third point which is of real concern to me is that the test in new subsection (2A) that Clause 64(1) seeks to insert in Section 31 of the Senior Courts Act 1981, which refers to the outcome not being,

“substantially different if the conduct complained of had not occurred”,

is a licence for vestigial consultation. Many cases that come before the High Court on applications for judicial review are cases in which the Government and other public authorities that are devolved parts of government have failed to carry out proper consultation with the public. Sometimes the failure to carry out consultation is a very serious matter indeed, because it is a denial of the right of the public not only to be told that they are being consulted, but to express their views in that consultation and to have them considered in a full and proper way.

There have been many cases in which judicial review has been granted because of the failure of consultation, and in many of those cases the outcome is eventually exactly the same as that which the Government would have wished before the failure of consultation. Therefore it may be thought by the judge highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred. Sometimes that failure of consultation is—or borders on—the contumelious by the public authority concerned. I suggest that we should not license that kind of failure by governmental authorities which would thereby deprive the public of the right to have proper consultation. I hope that those three points are useful to your Lordships. I do not want to add anything else, because the noble and learned Lord, Lord Woolf, has given a very full exegesis of the concerns.

[Baroness Lister of Burtersett (Lab)]

My Lords, first, I apologise that I have not spoken on the Bill before, but I wanted to intervene on Part 4. At Second Reading, the noble Baroness, Lady Hamwee, observed that Part 4 raises “citizens’ issues”. I hope that noble Lords will agree that it is therefore important that non-lawyers—who were referred to by the noble Lord, Lord Carlile—add their voice in support of the highly expert advice from the great legal minds in your Lordships’ House. Not only are those citizens’ issues, but they affect in particular poor and marginalised citizens, including, in the words of the Bar Council,

“some of the weakest and most vulnerable in society”.

Here I declare an interest as an honorary president of the Child Poverty Action Group, and a former director and legal research officer—believe it or not, although I am not a lawyer—of that group back in the 1970s, when the group spear-headed what came to be known as the social security law test case strategy, under the late Sir Henry Hodge, or the plain Henry Hodge as he was then, as CPAG’s solicitor. According to an evaluation of that strategy, Henry Hodge saw it as having an,

“independent value in obtaining substantive improvements in the law and in producing a higher standard of behaviour from administrators”.

Those are still two important functions of judicial review that are now under threat.

I fear that CPAG may be one of the organisations that the Government had in their sights, given that Mr Iain Duncan Smith accused it of “ridiculous and irresponsible behaviour” and “an ill-judged PR stunt” when the High Court dismissed a challenge to the housing benefit cap, for which it had been granted a cost protection order and permission on the basis that the case was arguable and raised issues of public importance. In contrast, Sir Stephen Sedley, in oral evidence to the Joint Committee on Human Rights, of which I am a member—I have a feeling that the Minister was himself a highly valued member at that point—said that,

“not all public interest litigation is hostile; it can be creatively used, and has been in the past. The Child Poverty Action Group was a pioneer in this respect, to elucidate the law to the benefit of everybody who is involved. Social security is a very good example, because it is an arcane and hideously complex area of law, where it is easy to get things wrong and a mistake can affect millions of people. It is very much to the advantage of everybody if the Government collaborates with challengers like the CPAG in getting the issue to the core”.

I speak today not so much as an honorary president of CPAG but as a member of the Joint Committee on Human Rights, which recommended that this clause be deleted from the Bill. I therefore support the contention that it should not stand part of the Bill, as well as supporting those amendments that would revert to the status quo. I will not rehearse at any length the arguments of the JCHR, some of which were quoted on Second Reading; there are arguments of both principle and practice, including that we should not be condoning unlawful decision-making, and the danger that it would mean that the permission stage became a full dress rehearsal and therefore could be more rather than less costly. However I would like to emphasise what is perhaps a key human rights point, when we said that it may give rise to breaches of the right of access to court in ECHR Article 6(1),

“a right which, in order to be practical and effective rather than theoretical and illusory, includes the right of access to a legally enforceable remedy”.

On this argument alone I believe that the clause should not stand part of the Bill. But as we have heard today, and earlier at Second Reading, there are also other persuasive arguments.