Criminal Justice and Courts Bill

Baroness Campbell of Surbiton Excerpts

Monday 28th July 2014 Lords Chamber

The Minister pursued this argument at Second Reading with considerable skill, courage and, perhaps I may say, stamina. All fair-minded and objective people who are concerned about the bigger picture and not just about the legal situation will see that there is a lot of sense in what he is saying.

[Baroness Campbell of Surbiton (CB)]

My Lords, I support all the amendments in this group, particularly Amendments 70, 71, 72 and 73 in the names of my noble friend Lord Pannick and my noble and learned friend Lord Woolf, and I oppose the question that Clause 64 stand part of the Bill. Like the noble Baroness, Lady Lister, I also need to lend my voice to this area of reform from the perspective of the ordinary person. I look at this through the prism of those with little power, little control and very little knowledge.

Clause 64 strikes a blow at the heart of democracy, viewed with the other provisions of Part 4 and the Government’s legal aid reforms. We all agree that British citizens, whether rich or poor, able or disabled, have a democratic right to access the justice system. As I said at Second Reading, holding public bodies to account when they get it just plain wrong is a vital part of the rule of law, and I believe that it leads to better services. I cannot understand why the Government would want to restrict it; surely it is something that we would all welcome.

The clause moves the goal posts when people seek judicial review. It lowers the test and forces judges to refuse it where currently they have discretion. In future, the courts must refuse if the outcome is “highly likely” to have been no different—a significant change from “inevitable”. This is highly likely to mean that unlawful and, I have to say, even dishonest decisions will go unchecked and public bodies will get off scot free. For some very vulnerable people in our communities, this is really serious. It flies in the face of what the Minister said at Second Reading: that Part 4 will ensure that judicial review,

“continues as a check on the Executive”.—[Official Report, 30/6/14; col. 1542.]

Well, this is a very strange check. More importantly, it could give rise to a breach of Article 6(1) of the European Convention on Human Rights in fettering access to the courts. It is also particularly relevant to the public sector equality duty, which requires that due process is followed. The Government may think that that does not matter. It does, crucially, as the Court of Appeal recognised in the Bracking case. The decision to close the Independent Living Fund was held unlawful because it was taken without due regard to the public sector equality duty.

I asked the Minister at Second Reading how judges would be able to weigh up “highly likely” without speculating. Surely, judges are supposed to decide on the facts— that is what I was always told—not second-guess what might have been. I have not heard from the Minister—he was not able to answer me at the time—and I really hope that he will tell me today.

The Minister has said that the aim of Part 4 is to limit the potential for abuse, such as delay. That puzzles me. If the court has to inquire into things that it would not otherwise consider until the judicial review itself, how will that reduce delay? It can only lengthen the case and increase the costs. I agree with the Joint Committee that Clause 64 should not stand part of the Bill but, if it remains, I will certainly support these amendments to reflect the current approach of the courts.

[Lord Davies of Stamford]

My Lords, luckily, and happily, I think there is little danger of this debate becoming a closed shop of the legal profession. It is very important that that is the case, because in my view Part 4 of the Bill, which represents an attempt by the Government to—I think one can only say—clip very severely the wings of the whole judicial review system, is something that goes to the heart of the way that we are governed, something that is of interest to every citizen as much as it is to professional lawyers. It raises questions such as: do we live in a state in which the Government are subject to the law? Is that a purely theoretical state of affairs or a practical reality? Is there some way of enforcing that principle? Is it possible for the citizen to get an authoritative view of what the law is? He or she is supposed and indeed compelled to obey it, but is it possible to get a judicial decision as to what the law is in a particular circumstance? Do the three powers of government operate as they should? Do they act as a balance on each other, or is one of those three powers oppressive to another? These are foundational questions and I think that we have been quite right to spend a bit of time this afternoon addressing some of these basic principles as well as the Bill.

However, I will now say a few words about the Bill. We heard two very distinguished speeches from the noble and learned Lord, Lord Brown, and the noble Lord, Lord Marks, setting out some of the central principles that lie behind this debate. I agree with much of what was said by both of them. On the central controversy between the two as to whether Parliament should legislate in the area of judicial review, I side entirely with the noble Lord, Lord Marks. It is, in my view, Parliament’s essential job to review and keep under review the constitution, and to make changes to it when it decides that that needs to happen. We created the Supreme Court recently, for example, to keep under review the operation of our legal system and the evolution of jurisprudence, to correct a tendency that we do not approve of by using statutory law, and so forth. These seem to be essential roles of Parliament and we should not shy away from that.

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[Baroness Anelay of St Johns (Con)]

My Lords, I think that the noble Baroness, Lady Campbell of Surbiton, might wish to speak.

[Baroness Campbell of Surbiton]

My Lords, I wish to add my voice to that of the noble Lord, Lord Beecham. Under these provisions, judicial review claimants will have to provide information about the financing of their claim before it can proceed. The court must take that into account and, if someone has given financial support, it must consider whether to make a costs order against them.

I believe that this will hit the poorest claimants the hardest. If they cannot get legal aid, they will need third-party support to bring a claim, whether that be a family, a friend, charities or lawyers who work pro bono. But if their supporters know that they could be liable for costs, these sources will dry up. In fact, the proposals will potentially have a devastating effect on the most vulnerable members of our society, who after all, are the poorest—those who stand to lose the most if access to judicial review is severely curtailed.

I would like to bring to your Lordships’ attention two ground-breaking cases that I believe would never have taken place should this measure come into force. One is the Supreme Court’s ruling that three vulnerable individuals had been unlawfully deprived of their liberty under the Mental Capacity Act. They were poor and had little support, but there was just enough from charities, friends and families to take their case to court, and the Supreme Court ruled accordingly.

The other case was the decision that a blanket ban on manual lifting and handling deprived two severely disabled sisters of family life. This was deemed to be unlawful because of this case. I remember that case very well. I was working as chair of the Social Care Institute for Excellence. I was particularly concerned about the local authority blanket ban on lifting and handling, which potentially meant that many disabled people would have to go into residential care because carers were no longer physically able to lift and manually handle them when they were unable to use a hoist. This case not only gave the sisters the liberty to stay at home with their families but also affected thousands of other disabled people, who could potentially have been deprived of their liberty.

I know that these two cases would not have taken place without the support of charities, families and friends. If people feel that they are liable to costs in any way, even if there is a slight threat, they will not proceed, and these cases would not be heard and many of us would be deprived of the liberties that are so vital to our access to justice.

[Baroness Anelay of St Johns]

My Lords, it is unusual for the Chief Whip to intervene at this moment, just before the Minister responds to this debate. I do so with prior agreement in the usual channels that this might be a convenient point for me to move formally, in a moment, that the House resume and that we take the Question for Short Debate in the name of the noble Baroness, Lady Whitaker. The procedure will then be that, as we return at the end of the QSD, I will make a short business statement in which I will explain why the Minister will then respond to this debate and we will then be able to proceed to the advertised business of the debate in the name of the noble Baroness, Lady Boothroyd.

I beg to move that the debate on Amendment 73F be adjourned.