Criminal Justice and Courts Bill

Frank Dobson Excerpts

Monday 1st December 2014 Commons Chamber

[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?

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[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.

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[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.

[Frank Dobson]

My hon. Friend mentioned Lord Woolf. Will he remind the House which judicial position was held by Lord Woolf? Would he, like me, be more likely to agree with Harry Woolf than with the right hon. Member for Epsom and Ewell (Chris Grayling)?

[Mr Slaughter]

We do indeed stand on the shoulders of giants in conducting this debate. The names that graced the amendments that were made in the House of Lords included not only the former Lord Chief Justice, but other esteemed lawyers such as Lord Pannick, the Labour spokesman Lord Beecham, Lord Carlile and many other senior jurists. Indeed, the President of the Supreme Court and the Master of the Rolls have also spoken out in clear and emphatic terms to say that the Government proposals are not just folly, but dangerous steps to take. I am amazed that any Lord Chancellor—even this one—would ignore those protestations.

It is not wrong to see this concerted attack on judicial review as of a piece with other reductions in access to justice that this Government have advanced, such as on legal aid, on no win, no fee, and on court and tribunal fees. However, judicial review seems to receive particular opprobrium from this Lord Chancellor. That is strange in many ways. Judicial review is already a remedy of last resort and already includes a permission stage. Its accessibility has been limited by the changes to the rules on legal aid for judicial review and the shortened time limits for applying. Indeed, Lord Justice Jackson, some of whose recommendations on costs and civil claims the Government have grabbed on to, advised that it was already very difficult for the ordinary citizen to apply for judicial review for want of funds and expert knowledge, and that we should look at broadening the basis for bringing a judicial review claim.

The attack on judicial review should be of concern to us all. It is a remedy that can protect the rights of very vulnerable individuals, such as young prisoners and dementia sufferers; that can save whole communities from wrongful decisions by the state, such as when the closure of Lewisham’s accident and emergency department was ruled unlawful; and that can establish the law on important points of policy, often with the help of expert bodies that intervene to assist the court on a point of general principle. It is, as Liberty says,

“a crucial tool which allows ordinary people to challenge decisions by the authorities—either because they’re unlawful, irrational, or made in the wrong way.”

I suspect that if their lordships had not been interrupted by other business, they would have continued to neuter the clauses that deal with judicial review. As it is, they stopped at just three defeats for the Government, each of which was important. We urge all Members of the House to vote against the motions to disagree in respect of each of the clauses at issue. For the avoidance of doubt, we will press to a vote, just as their Lordships did, the matters that relate to the “highly likely” test, financial information, and interveners.

2011 Public Disorder (Compensation)

Frank Dobson Excerpts

Wednesday 5th June 2013 Commons Chamber

[Damian Green]

As I say, particularly in the case of the mortgages, it is for the mortgage lenders to decide in the end, but I have explained that I am doing what I can to persuade them to take a sympathetic attitude to individuals who deserve help.

As the House will know, all those who made claims under the Riot (Damages) Act were offered sums in settlement. In case they were unhappy with their offers, the PCCs—and MOPAC in London—established a right of appeal, which a number of people have exercised. At the outset of the riots, the Government made a commitment to back the costs incurred by police forces in meeting Riot (Damages) Act costs, because that was another potential problem. We have provided that backing, and will continue to do so until the few remaining claims have been settled. So far the Government have paid some £30 million to forces to meet Riot (Damages) Act costs, as well as meeting the operational costs of policing the riots, which totalled £97 million.

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

As the Minister knows, I think well of him. Last time I inquired, however, officialdom did not know how many claims had been met in full and how many had been met partially. Do we know yet?

[Damian Green]

I do not have the figures to hand, but if the Department has them, I will write to the right hon. Gentleman and place a copy in the Library. I assume that he is referring to insurance claims rather than to Riot (Damages) Act claims. When it comes to insurance, there are three distinct classes. First, there are the people who are fully insured and who may over-claim, As we know, there are people who always over-claim. Secondly, there are the people who have insurance but subsequently find that they are underinsured. I consider many of those cases to be among the most complex and difficult. Thirdly, there are those with no insurance. It is the second and third groups who are eligible for compensation under the Riot (Damages) Act.

It may well be that the claims of some of those people will not be met in full. No doubt the hon. Member for Croydon North will be aware that some people in Croydon have withdrawn parts of their claims. It would obviously be inappropriate for me to comment on individual cases, so I shall not do so, but I am happy to discuss the matter with the hon. Gentleman privately.

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[Damian Green]

I was about to come on to that point. The Act is a safety net, which exists to provide some level of compensation. It should not be seen as a direct replacement for an insurance policy. The aim now is to encourage as many people as possible to obtain insurance, and we will need to look at any difficulties in that regard.

Turning specifically to Croydon, I am aware of the claims relating to the terrace on London road. The situation there is complex because of the number of people who were underinsured and because of the sums of the losses involved. Before rebuilding work can commence, it is important that most, or all, of these claims are resolved.

In recent months, the Home Office, Croydon council, the Metropolitan police, MOPAC, the insurers and the loss adjusters have been working together to finalise settlements on these claims. At the local level, Croydon council has been working with the landowners on London road to try to bring forward a suitable and appropriate development. They have already engaged with an architect to assist in this process. Meetings have also taken place between officials and MOPAC and the insurers, and the offer of a further meeting chaired by the deputy mayor for policing and crime has been proposed if it is thought that that will help speed things up. MOPAC and Croydon council, as well as the Home Office, are therefore doing their best to speed things up.

[Frank Dobson]

Surely the principle should be that if anyone lost their property or business as a result of this criminal activity, which we all deplore, the Government should say that the minutiae of the law should not be used as a way of weaselling out of compensating people, so no one loses out.

[Damian Green]

That is part of the principle of the Act, but it is not the whole point of it. The right hon. Gentleman has been a Minister and he knows that Ministers have to obey the law like everybody else.

I take the point about money, and MOPAC has been making some interim payments. I understand that about £10 million has been paid out, including some to residents of London road.

Underlying all this is the unsatisfactory nature of what is 19th century legislation. As I set out in a written ministerial statement last month, we have appointed Neil Kinghan to conduct an independent review of the Act. That has already begun and is expected to be completed by the end of September.

Leveson Inquiry

Frank Dobson Excerpts

Monday 3rd December 2012 Commons Chamber

[Mr Andy Slaughter (Hammersmith) (Lab)]

rose—

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

rose—

[Maria Miller]

Will Opposition Members give me a few moments to make a little progress?

Who can say what amendments would be made to such a legislative framework in future? Who can make promises for the politicians and the political parties in years to come? The action that we take will have consequences that will be felt for generations to come, and we must make sure that whatever action we take, it is not just for now but for the coming years as well.

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[Mr Whittingdale]

Of course it is important for us to establish public confidence. What we need to do is persuade the public that things will never be the same again: that the new regime on offer is completely different, that it is independent, and that it has real powers. However, as I think Shami Chakrabarti said at the weekend, the question of whether it requires statutory underpinning is about processes, not outcomes. We need to focus on the outcomes of this.

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

Is it not the case that the proposed legal and financial incentives to be offered to the press would require legislation by the House to give the press privileges that are not available to other citizens?

[Mr Whittingdale]

I think I have already dealt with that, but the right hon. Gentleman is right. Lord Hunt himself suggested that there should be some statutory recognition of the body in the context of, for instance, defamation cases, so that it can be taken into account when damages are awarded. However, that is not the same as setting up a body by statute, or statutory underpinning. It is all very well for the right hon. Gentleman to laugh, but there is a massive difference between the law recognising the existence of a body and the law somehow having power over that body.

Justice

Frank Dobson Excerpts

Monday 25th June 2012 Ministerial Corrections

Administration of Justice: Secrecy

[Frank Dobson]

To ask the Secretary of State for Justice (1) with reference to Appendix J, paragraph 11 of the Justice and Security Green Paper, how many of the cases referred to concern material related to national security;