Criminal Justice and Courts Bill

Debate between Baroness Lister of Burtersett and Lord Faulks

Monday 28th July 2014 Lords Chamber

[Lord Faulks]

The case is George v Secretary of State for the Environment. I omitted one or two pages of my speech in order not to weary the Committee but I am most grateful for the offer of an autographed copy of De Smith.

I reiterate that, where there is any significant doubt over whether the flaw complained of was highly likely to have made a substantial difference, permission can be granted, and judges will continue to perform their established role. I remind the Committee of a significant judicial discretion which will remain under the clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial.

Amendments 72D and 73E are intended to replace the requirement to refuse to grant permission where it is highly likely that there would have been no substantial difference with an option to refuse permission. It is worth examining that. It postulates the position where the judge says, “I think it is highly likely that it would have made no difference at all, but still I should allow this to progress”. Similarly, Amendments 70, 70A and 71 are intended to replace the requirement to refuse to grant a remedy, including a financial remedy, where this is the case. The Government’s view is that these amendments would significantly weaken the utility of the clause in dealing with minor technicalities in a proportionate manner.

Under Clause 64 as currently drafted, the High Court and the Upper Tribunal will retain significant discretion over the application of this clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial. Indeed, the term “highly likely” will, as I have said, be interpreted by the courts. Where the court comes to the conclusion that it is highly likely that the outcome would not have been substantially different, the Government’s view is that the court should not grant a remedy. I can see no merit in continuing a case where there is no real prospect of a difference in outcome and a remedy such as a quashing order would be futile.

In conclusion, I trust that I have reassured the Committee that the Government absolutely understand the importance of judicial review and do not wish inappropriately to interfere with the exercise of the discretion by the courts, nor substantially to disturb the approach that the courts have taken in this very important area of the law. In fact, I submit to your Lordships that Clause 64 is modest in ambition and beneficial in effect. I hope that, with that reassurance, the noble and learned Lord will withdraw the amendment and I urge the Committee to agree to Clause 64 standing part of the Bill.

[Baroness Lister of Burtersett]

The noble Lord has not responded to a very specific question from my noble friend Lord Beecham, which was: how many of the Bingham centre’s recommendations have the Government accepted? This is very relevant to the point made by the noble Lord, Lord Horam, about delay. He quoted the Joint Committee on Human Rights, making great play of the word “perennial”, but I think that he rather quoted out of context. Perhaps I may read what the Joint Committee said:

“We welcome the Bingham Centre Report as an important contribution to the debate about possible reform of judicial review, demonstrating that the perennial problem of reducing the cost and delay of judicial review proceedings can be addressed in ways which are compatible with effective access to justice”—

that is, it is saying that these reforms are not so compatible.