Criminal Justice and Courts Bill

Lord Grayling Excerpts

Monday 1st December 2014 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Chris Grayling)]

I beg to move, That this House disagrees with Lords amendment 97.

[Mr Speaker]

With this it will be convenient to consider Lords amendments 98 to 106 and Government motions to disagree.

Lords amendment 107, and amendments (a) to (e) in lieu.

[Chris Grayling]

Before I move on to the detail of the amendments, it might be helpful to remind the House why these reforms are so important. Judicial review was developed as a tool for citizens to challenge decisions taken by public bodies that unlawfully and adversely affect their lives. That remains as important today as ever, and nothing in these reforms will prevent those citizens from using judicial review in the future. As Lord Chancellor I take my responsibility to uphold the rule of law very seriously, but I do not believe that the way in which it has evolved in relation to the current use of judicial review is consistent with or necessary to uphold the rule of law, and I believe the time has clearly come to set some limits to prevent misuse.

Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. Yet, in far too many examples, that is precisely what it has become and it is why reform is necessary. It is also why the three areas of our proposed reforms covered by this debate tonight are so important.

[Mr Lee Scott (Ilford North) (Con)]

Does my right hon. Friend agree that although the judicial process must be robust and fair, it must not be open to constant abuse?

[Chris Grayling]

Indeed. I am genuinely baffled as to why the Opposition are so set against many of these reforms when many of their predecessors as shadow Ministers or in government raised many of the same concerns. I will challenge them over one or two of the issues later, because I find their position inexplicable.

Whoever wins the general election will have to take some very difficult decisions in the next Parliament. Those decisions are not ones that any of us would wish to have to take, any more than we in government wanted to take some of the difficult decisions that we have faced in this Parliament, but tough times mean tough decisions—decisions in the interests of this country. And yet, whichever party is in government after next May will face a wave of pressure groups trying to use judicial review to delay decisions, to avoid spending reductions, and to generate publicity for their own cause.

If a group can find a clever enough lawyer, almost any Government decision can be judicially reviewed, and very many are, not necessarily on the basis of specific breaches of specific laws, but far too often on a loose argument that something was not quite right with the consultation paper, that there should have been a bit more consultation, or that a tough decision seen in isolation was irrational. Without undermining the essential core of judicial review, we need to restore common sense to the way in which the judicial review system works, and that is what we are working to do.

[Robert Neill (Bromley and Chislehurst) (Con)]

Does my right hon. Friend agree with the important point made by Lord Horam that there is a difference between a balance to protect the rights of the citizen in specific cases and a situation where, sadly, judicial review can be moved through pressure groups to what is effectively a review of the merits, rather than of the procedures, often contrary to the wishes of the communities that are most directly affected?

[Chris Grayling]

My hon. Friend is right. Judicial review has become a vehicle that is used as one of the tools to campaign, to delay and to challenge, not necessarily in the interests of the broader society or the broader community, but because it provides a vehicle to make a point or to delay something for financial reasons. It makes no sense to have a system that can be abused in the way it often is.

We listened carefully to the debate in the House of Lords, and as hon. Members will see from the amendment paper, we have suggested some modifications to ensure that we avoid unintended consequences of what we are working to do. I hope that the House will say clearly today that having agreed those safeguards, we want to see this package of reforms pass into law.

[Mrs Anne Main (St Albans) (Con)]

On safeguards, can my right hon. Friend give me an assurance that local authorities will not be able to dumb down their standards, knowing that there is not likely to be a judicial review, and that they will still always go through the correct process, as they need to do, and not think that they are beyond reproach?

[Chris Grayling]

My hon. Friend is right. It is important to say that the Bill will not stop organisations being judicially reviewed where they are at fault. It does not stop organisations being judicially reviewed for constant or serious underperformance or failure to fulfil their duties. What it stops is judicial review on technicalities. It stops the system being used for purposes for which it should not be used.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

Does the Lord Chancellor view as a technicality the recent consultation on changes to legal aid ignoring the Welsh language aspect altogether and allowing half the time for the consultation to go into the Welsh language issue, as opposed to the whole time? Is that something that we should just ignore?

[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.

[Julie Hilling (Bolton West) (Lab)]

The right hon. Gentleman says “all the time”. Will he give us a notion of how often that is—once a day, once a week, once a month? How many times have such cases happened since April, for instance? He is giving the impression that they happen all the time, but what does that mean?

[Chris Grayling]

A Minister is confronted by the practical threat of the arrival of a judicial review case virtually every week of the year. It is happening all the time. There are pre-action protocols all the time, and cases are brought regularly. Looking across the majority of a Department’s activities, I would say that Ministers face judicial review very regularly indeed. It happens weeks apart rather than months apart.

[Frank Dobson (Holborn and St Pancras) (Lab)]

Will the Secretary of State give way?

[Chris Grayling]

Let me set out the other two areas covered by the reforms, and I will then give way to the right hon. Gentleman.

The second thing we are trying to do is to stop third parties using people with no means as human shields, and effectively bringing broad-ranging cases on public policy by acting as interveners behind and alongside them, while being immune to financial risk if they lose. That is customarily discussed in terms of pressure groups, but it actually applies to big corporations as well.

The third reform applies in a similar way. If an organisation brings a judicial review, we should know who they are and who is backing them. Of all the disagreements of the House of Lords, I understand this one least. How is it possible for a judge to take a decision on costs and other aspects of a judicial review if he or she has absolutely no idea who is responsible for bringing it? Is it not right and proper for the court to know?

Let me give an example to challenge Labour Members. If a large international, such as a tobacco company, wants to challenge the Government on a public policy decision, it can, under the current rules, set up a shell company, with a single—probably impecunious—director and use it as the front for the judicial review. If that happens, is it not right, proper and sensible for us to know which corporation is backing the judicial review? Labour Members may say that it could never happen, but it happened in the Richard III case, when a shell company with a single impecunious shareholder brought a judicial review against the Government, which cost the taxpayer a significant six-figure sum. It can and does happen.

Why on earth would anybody disagree with the principle that if an organisation brings a judicial review, we should know who it is and who is backing or supporting it? Why is that so unreasonable? I simply do not understand why the Labour party lined up with Cross Benchers in the House of Lords to oppose it. What is wrong with the principle? I challenge shadow Ministers to say—I will happily take an intervention—what is wrong with the idea that a court should know who is backing a judicial review or who is behind it?

[Mr Andy Slaughter (Hammersmith) (Lab)]

I would love the Secretary of State for once to use an example or any example that does not involve Richard III. He knows very well that the intention of his approach on clause 67 is not to be transparent, but to discourage small litigants—individual groups wishing to take on a big corporation—who would fear that all their funds were at risk. The vast majority of such cases are of that kind. He wants to suppress viable litigation, rather than in any way to be transparent.

[Chris Grayling]

I am afraid that that is complete nonsense. The amendments that we are discussing do not involve any financial risk at all. They are simply about the court knowing who is backing the judicial review. They are purely for information. I do not believe that it is unreasonable for a court considering a judicial review to know who is backing it, and I am baffled as to why the Labour party opposes that.

We do not have much time for this debate, so I will focus my detailed remarks on clause 67, but I said that I would take another intervention.

[Frank Dobson]

The right hon. Gentleman talks of technicalities, but the law is full of technicalities—that is all it is. He says that Ministers and officials are frightened of judicial review, and so they should be. The pressure on them is to comply with laws and regulations that we have passed. We are encouraging law breaking if we let someone say, “Well, it’s okay. You can skate over that, or you can skate over this. You can get away with it. It was only a minor technicality.”

[Chris Grayling]

I am afraid that that is simply not right. Very many judicial reviews are not about whether we have broken a law passed by this place—of course, we must be challenged if that happens—but are based on a much looser interpretation of what should or should not happen. They are based not on statute, but on, for example, why we have run a consultation for six rather than nine weeks, given that the previous one was for nine weeks. The truth is that such arguments are brought to the courts by people who seek to delay the impact of decisions. I must say that if Labour Members find themselves taking difficult decisions in government after the election, they will discover that a judicial review’s ability to delay key decisions is against the interests of this country, and they will wish that they had supported rather than opposed us.

As hon. Members will see from the amendment paper, we will ask the House of Lords to reconsider its opposition on most of the measures. We listened very carefully to the concerns expressed on clause 67. We disagree with the Lords amendments, which undermine the clauses agreed by this House. Each amendment would take the heart out of the reforms by undermining any duty to give effect to the key requirements. However, we have listened very carefully to the concerns expressed on clause 67, and we have moved by proposing an alternative model.

If this House approves the amendments in lieu, clause 67 will continue to give the courts significant leeway in making cost orders. It will be for the court to consider whether any of the four conditions have been met. It will preserve the court’s role in deciding whether costs were caused by the intervener and incurred by the party reasonably. Where the court is of the view that exceptional circumstances would make the award of costs under the clause inappropriate, it need not make an award.

That is a crucial point on all of this. There are still provisions that give the judiciary the freedom, in exceptional circumstances, to say, “This is a particularly distinctive case, and we need to pursue an approach that is different from the norm.” We have left in provisions for such exceptional circumstances, but on clause 67 we have taken on board some of the concerns expressed. The amendments in lieu are not about preventing legitimate intervention in support of a case brought on behalf of a disadvantaged individual, but are about preventing a powerful group from using someone with no money as a human shield for a case in which the group intervenes behind that individual, with the public picking up the cost regardless of whether the case is won or lost. That should not happen.

We believe that the amendments in lieu strike a sensible balance. They meet the concerns expressed by hon. Members from different parts of the House in a way that will reassure both them and those in the other place that our intention is to tackle the challenge of such human shields, not to remove altogether the ability to intervene in cases where there is a legitimate reason for doing so.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

Will the right hon. Gentleman confirm that he is therefore re-establishing judicial discretion?

[Chris Grayling]

As I just said, we have never taken away judicial discretion. We have left in place the clause on exceptional circumstances. Almost every week, this House passes measures that set tramlines for the courts to operate within. We set maximum sentences, but if the maximum sentence for a crime is five years, we do not say that judges should give a five-year sentence; we give them the flexibility to decide what is the right length of time below that.

We are taking a similar approach with these proposals. We are saying to judges, “Look, you’ve got some flexibility, but there are parameters that we need you to operate within.” To my mind, that brings common sense back to the system of judicial review and deals with the frustrations with a system that can be abused. It does not create a situation in which legitimate judicial reviews cannot be brought.

Surely my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) would admit that an organisation should not be able to bring a case to court free of financial risk because it is shadowing behind somebody who has no means and therefore cannot have costs awarded against them; that an organisation should not be able to set up a shell company to bring a judicial review without any information being available to the court about who is behind the shell company; and that an organisation should not be able to delay a difficult spending decision by arguing to a court that the whole process should start all over again because of a minor technicality. Those things happen on a regular basis and they must change.

These reforms are essential in restoring common sense to judicial review. I hope that the House will back the motions to disagree and the amendments in lieu.

[Mr Slaughter]

Although it is some two and a half years since I last spoke on a series of Lords defeats of Ministry of Justice legislation, I have an acute feeling of déjà vu. On 17 April 2012, this House considered the 11 defeats that their lordships had inflicted on the infamous Legal Aid, Sentencing and Punishment of Offenders Bill. Today, we examine the four considerable dents that have been put in the Criminal Justice and Courts Bill. The three that we are considering in this group of amendments substantially amend part 4 of the Bill, which seeks to hobble the administrative law remedy of judicial review.

LASPO is fresh in my mind today for two reasons. First, those 11 defeats were whittled down, in the course of ping-pong, to some important but narrow wins. Secondly, the Government have spent the past 30 months trying to squirm their way out of even those concessions. The MOJ is still deciding what to do about the High Court decision that its review of costs rules for mesothelioma cases was unlawful. Let us remember that it is trying to enforce, against the will of Parliament, the payment by sufferers of that terrible disease of up to 25% of their damages in legal fees. Further proceedings are pending on the evidential requirement for obtaining legal aid in domestic violence cases—another defeat for the Government.

Both Houses may wish to note how the Government have sought to dodge the undertakings that were given to two of the most vulnerable groups in society—terminally ill cancer sufferers and domestic violence victims—when they look at any purported concessions in the Bill. Of course, the fact that a Government who go back on their commitments to Parliament and let people down are held to account by the courts is at the root of this attack on judicial review. The Lord Chancellor has lost six judicial review actions in the past year and there are several strong cases in the pipeline. Might that have any bearing on his current attack on judicial review?

For once, notwithstanding the truncated nature of the debate, I feel that we have enough time to debate an issue that the Government find very uncomfortable. That is not because there is a lack of arguments to put against part 4, but because they have already been put many times and have not been rebutted. On Second Reading, in Committee, on Report and on Third Reading in both Houses, there have been long debates on the dangers and inequities of this attack on the rule of law and the rights of the citizen against the state.

An unprecedented alliance of charities, the legal professions, the judiciary and victims of Government injustice has come together to support the Lords amendments. On the “Today” programme this morning, the noble Lord Woolf, who was a sponsor of the Government’s defeats, said that the Bill undermined the independence of the judiciary and, thereby, the rule of law. All the arguments are on one side. Against the clear voice of the experts, which says that this attack on judicial review is a constitutional provocation, we have the childish statements from the Lord Chancellor, who says that judicial review is a left-wing conspiracy. He should tell that to those who are reliant on the independent living fund, the Gurkhas and the victims of care home abuse, or indeed the Countryside Alliance and Stop HS2, all of which are successful challengers of his Government’s arbitrary exercise of power.

The only thing going for the Government is the majority that they hold in this House. The real issue today is whether they can use it to batter the other place into submission. Sadly, there are too few supporters of individual freedom on the Tory Benches. Tory Members either support the big corporation over the little man or have swallowed the Lord Chancellor’s infantile line that judicial review is all about subversive left-wing groups stopping the wheels of commerce turning. We are left to hope—I find it difficult even to say this—that the Lib Dems will wake from their comfortable ministerial sleeps to remember the time when they claimed to be the party of civil liberties. To wait is to hope, but as only one Liberal Democrat MP has bothered to attend this important debate on civil liberties and the rights of the individual, I do not think that we can have much hope.

--- Later in debate ---

[Chris Grayling]

Since the hon. Gentleman has indicated his intention to support all the Lords amendments, will he explain why he thinks it appropriate to allow organisations that back judicial reviews to remain anonymous?

[Mr Slaughter]

I will not speak for long because we have limited time, but I will come on to those matters in a few moments.

It is not only Labour peers who were rallied by Lord Beecham who share our view. Indeed, as he pointed out, the Lord Chancellor’s proposals have been roundly condemned by every independent and bipartisan body that considered them, including the Joint Committee on Human Rights and other Committees of both Houses. Furthermore, the former Conservative party chairman Lord Deben referred to the changes as “out of line” and “unacceptable”, and Baroness Williams called them an “act of absolute tragedy” that she was “very troubled” by. Lord Howe voted against the Government, as did many pillars of the legal establishment—so much for the Lord Chancellor’s left-wing plot.

Each amendment that the Government have resisted has a particular point to make. On the “highly likely” test, all their lordships are saying is that judicial discretion should be retained, and that the court may refuse judicial review if it concludes that it is “highly likely” that the outcome for the applicant would not have been substantially different had the conduct complained of not occurred. If we stick with the Government’s proposal and disagree with the amendment, public bodies will be allowed to escape responsibility for unlawful decisions. In the long run it would change the role of judges in judicial review cases as they would be invited to second-guess how decisions have been taken. The Government are confusing remedy with unlawfulness, and potentially creating far more problems at earlier stages of judicial review cases—and causing far more court time to be taken up—because the court will have to consider the implications of its decisions and not the process under review, as is the case at the moment.

On financial barriers, the evidence—I emphasise that word—of practitioners and those who have represented parties on all sides suggests that the chilling effect of the clauses will be felt first by people of limited means who look for support in their judicial reviews. That could be family members—for example in a care home case—or individuals in a community, perhaps on a planning case, but it could also be charities and other not-for profit organisations. Such organisations have said clearly that although they are currently prepared to support judicial review proceedings, if there is a risk that the court will look at the funders and potentially penalise them in costs, their trustees will not be prepared to continue doing that, whatever their support for the individual action. Each clause in part 4 purports to be a simple tinkering change and a way of dealing with things at the margin to ensure that unmeritorious cases do not come forward. However, evidence from the judiciary, practitioners, interveners and everyone who has participated in the process suggests that the clauses will have a chilling and discouraging effect. That is as true for provisions on financial barriers as for the “highly likely” test or interveners.

The issue of interveners has taken centre stage, and at an early point in proceedings the Government said that they would table amendments to deal with the concerns expressed. We had one of those little dances that takes place between the Liberal Democrats and the Government, when the Liberal Democrats say, “We’re not happy with this, can we have a concession?”, and grudgingly, at the last minute—last Friday in this case—we have a concession.

Let us consider the concession the Government are proposing. What they originally proposed, and what the House of Lords disagreed with, is the idea that only in exceptional circumstances and very rare cases would interveners be protected from paying costs. That does not mean their own costs, which interveners customarily pay, but those of all parties involved. That was clearly wrong, and the Government appear to accept that. As the deputy president of the Supreme Court said, interventions are of great assistance to the court and there can be merit in interventions. Therefore, amendments have been tabled. It is clear why Labour supports what the House of Lords said, and that the matter should be—as it is now—at the discretion of the court. The court has completely adequate powers, should it wish to exercise them, to punish or find against interveners on costs if it believes there is no merit in the intervention or if it believes—this is unlikely—that time has been wasted during proceedings. That matter is currently, and should properly remain, at the discretion of the judge.

Let us consider the amendments, because this is the most disingenuous part of the debate. We waited months—since June, I think—to see what concession the Liberal Democrats with all their bravery had wrung out of the Government. The opinion of everyone who has considered the amendments since they were published just before the weekend is that not only do they not address the issue, but they make the situation worse. The reason for that is simple. Previously, there could at least be exceptional circumstances. Now, a series of criteria must be met, otherwise a mandatory duty means that all costs associated with the intervention would be recoverable by all other parties, including losing parties. Therefore in certain ill-defined circumstances, the court would have no discretion to act to prevent an unjust outcome, despite interveners having been granted permission to intervene by the court, and encouraged to proceed. That will have a more damaging effect than the Government’s original proposal to create a presumption that costs would be payable except in exceptional circumstances. Only this Government could make the situation worse by making a concession.

In a way, the wording does not matter. The net result of those criteria is to set up retrospective tests that mean that the chilling effect will apply. Interveners are typically charities, not-for-profit organisations and others who may perhaps have funds to pay their own costs, but will not risk the definition of terms such as “in substance”, “taken as a whole”, “significant assistance”, or whether something is “necessary” for the court to consider whether someone has behaved unreasonably. A judicial review often develops from the permission stage through to a full hearing, and during that time it is perfectly possible that certain facts become more or less relevant. What impecunious charity will take those risks? This is another attempt to pull the wool over our eyes by setting up impossible hurdles and mandatory tests where matters should be left to the discretion of the judge.

[Chris Grayling]

The hon. Gentleman is missing the point. Why should those who row in to back a judicial review that they lose be automatically insulated from the costs of doing so? He knows that time after time the taxpayer picks up the bill. This measure is simply to ensure that those who row in behind a judicial review but do not make a valid contribution to the process cannot be immune from facing the costs if they lose.

[Madam Deputy Speaker (Dame Dawn Primarolo)]

Order. May I remind both Front-Bench speakers, one who has already spoken and the other who has been speaking for rather a long time, that the debate ends at 7 pm and other Back Benchers wish to participate? The Secretary of State has got his points on the record, and perhaps Mr Slaughter will conclude his remarks so that we can call the Back-Bench speakers.

--- Later in debate ---

I wonder if the Secretary of State will have the opportunity to make further remarks on this subject, however, because at the moment I cannot give him my support in the Lobbies on matters relating to the earlier clauses, specifically the “highly likely” clause. The inevitability test the courts have previously adopted drew an important constitutional line that he is asking them to cross. The clause will create pragmatic difficulties in the courts and mean that flagrant and absolutely unacceptable behaviour by the Executive could be condoned by saying, “Well, it made no difference.” There are times when courts ought to mark a fundamental lack of due process.

[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.