Criminal Justice and Courts Bill

Lord Hart of Chilton Excerpts

Monday 28th July 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I recognise the points that were made on the other side of the House about delays and the deterrent effect on certain local authorities. There is a clearly a balance to be struck. But this legislation is a step too far. It is an unattractive step, as has been said by many other noble Lords. The Government are reducing significantly the right of a citizen to challenge flawed decisions of national and local government; they will not to be able to hold national and local government to account. That has come out loud and clear from earlier speakers, but I just reinforce it.

Whatever the disadvantages of judicial review may be, one must bear in mind that to go forward with this particular legislation will be a denial of justice to ordinary citizens—some of whom, as the noble Baroness said, are very vulnerable. I must ask the Government to step back for a moment and rethink whether there is a way forward to deal with delays and other problems without cutting the fundamental importance of the exercise of the discretion of the judge. As the noble Lord, Lord Carlile, said, only in a minority of cases is permission to go forward given. Those cases need to be heard. So I ask the Government to think again and step back. If I could use perhaps an unattractive phrase—back off on this one.

[Lord Hart of Chilton (Lab)]

My Lords, I want to speak briefly. I was going to save myself until Report, but this afternoon I was provoked into speaking by the reference by the noble and learned Lord, Lord Woolf, to Andrew Congreve. Andrew Congreve is a partner of mine at Herbert Smith. We both went to the post office to get our TV licences when we heard that the fee was going to be increased. Andrew Congreve was provoked by the threat that his second TV licence was to be revoked by the BBC. That threat stirred him into action. He has not been very well recently. It is only to be applauded that he should be referred to this afternoon: he is now in the Law Reports and will appear in Hansard.

I wish to make a second point. The noble Lord, Lord Horam, referred to delay, as did the noble and learned Baroness, Lady Butler-Sloss. Steps are being taken at the moment to speed up the process of judicial review. Only six weeks are allowed now to bring the case—to make the application. That is a substantial cut to the period of time that was allowed before. The new planning courts, filled with judges who are experienced in this area, now sit to hear these cases. They come on very quickly. In my recent involvement, the six weeks application was made, the leave was granted quickly and the hearing took place a week ago. That was dealt with with enormous speed. If that is the process that is to be fulfilled in the future, a lot of the problems about delay will vanish.

[Lord Pannick (CB)]

My Lords, I apologise to the noble and learned Lord, Lord Woolf, for missing the opening minutes of his speech this afternoon—indeed, I apologise to all noble Lords—as I attempted unsuccessfully to break the world record for running here from the Supreme Court.

When proposals for amendment of judicial review are brought forward by the Government—who are, of course, the main defendant in such litigation—they require the most careful scrutiny to identify whether they are indeed in the public interest and whether there is any good reason for Parliament to intervene in an area that has previously—and rightly—been left to judicial discretion. Clause 64 seems to me to fail to meet those criteria.

I have three objections to Clause 64. First, it focuses on whether it is highly likely that the outcome for the applicant would not have been substantially different. I emphasise the words “for the applicant”. The clause fails to recognise that judicial review is not concerned just with the narrow interests of the applicant. Judicial review serves the public interest, as the Committee has heard, by exposing systematic breaches of legal requirements by defendants. The court’s judgment—often a declaration—tells the Administration that what has been done is unlawful. Changes are then made; unlawful practices stop. Clause 64 will constitute a major impediment to that vital function of judicial review.

My second objection to Clause 64 is that a remedy may be appropriate in the interests of the individual claimant even in cases where the legal wrong may have made no difference. Last year, Lord Reed emphasised in the Supreme Court in a case concerning the Parole Board—the Osborn case of 2013, in volume three of the Weekly Law Reports, at page 1020, paragraphs 67 to 68—that the law requires public bodies to adopt a fair procedure to ensure not just that the right conclusion is reached on the merits of the individual case but that the subject of such a decision is not left with a sense of injustice that a wrong approach has been adopted in their case. Again, Clause 64 would prevent judicial reviews going forward for that purpose.

My third objection to Clause 64 is that it would require the court at the preliminary stage to conduct a detailed review of what would have happened had circumstances been different. That will of itself be time-consuming and expensive, and will inevitably promote satellite litigation. The noble Lord, Lord Horam, expressed concern about delay, and we are all concerned about speeding up legal procedures. Several steps have been taken; the noble Lord, Lord Hart, referred to them a moment ago.

It is important to say to the noble Lord, Lord Horam, that Clause 64 simply does not address the objective of speeding up procedures; nor will it achieve any such objective. One could have shorter time limits and arrange for speedier, expedited or shorter hearings—those are all processes that are being adopted. The Fordham inquiry for the Bingham Centre has made a number of valuable proposals.

Clause 64 simply does not address the topic; it is a blunt weapon, if removing delay is its objective. It is, for reasons that I have sought to explain, counterproductive, because it will lead to longer hearings at the leave stage and more appeals on the grounds of what would have been the result had a different approach been adopted.

Your Lordships have heard that Clause 64 has been criticised by the Joint Committee on Human Rights. Your Lordships’ Constitution Committee referred to the concern expressed by the senior judiciary during consultation that Clause 64 may well lead to unlawful administrative action going unremedied. The Constitution Committee therefore advised this Committee and the House to consider whether Clause 64 risks undermining the rule of law. I think that Clause 64 will impede the effective exercise of judicial review, and will do so for no good reason. I very much hope that the Government will think again before Report.