Criminal Justice and Courts Bill

Debbie Abrahams Excerpts

Monday 1st December 2014 Commons Chamber

[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.