Criminal Justice and Courts Bill

Debate between Geoffrey Cox and Andy Slaughter

Monday 1st December 2014 Commons Chamber

[Mr Slaughter]

I give up with the Secretary of State. We are talking about interveners, who are there to assist the court and broaden the issue where it is helpful for matters of public policy. If he cannot see that after having discussed the Bill since February, I really do give up on him.

The Government proposals would prevent judicial review if they can persuade a court that it is highly likely that an unlawful act would have been lawful if done differently. That is a recipe for poor decision making. They will hobble the attempts of people to raise the considerable funds needed to bring a case and weaken their ability to have protection from the Government’s costs if they lose. Most bizarrely, they discourage the intervention of expert bodies, such as charities and civil society organisations, which often assist the court in making the right decision. Under pressure on this last point, or to give the usual fig leaf to the Liberal Democrats, a series of last-minute amendments have been tabled by the Lord Chancellor on interveners, but the opinion of experts who have looked at them is that, if anything, they make the Bill worse.

Labour MPs will therefore vote to uphold judicial review and the rights of the individual against the state. We will oppose the motion to disagree with each and every one of the Lords amendments in this group. We will vote against the Government’s amendments in lieu. We may, I hope, be joined by one or two libertarian Tories, although I am not holding my breath. It will be interesting to see how many Liberal Democrats, so keen to shout about their love of liberty before voting for legal aid cuts in secret courts, will join us in the Lobby.

[Mr Cox]

I regret the tone of the hon. Member for Hammersmith (Mr Slaughter), which fell beneath the standards the House is entitled to expect on so important a matter. The tone was cynical and frankly insulting to those of us on the Government Benches who have spent many years of our lives fighting for the rights of individuals in the courts.

I should, before I begin, draw the attention of the House to my entry in the Register of Members’ Financial Interests. I appear in courts, specifically in the administrative court, quite frequently. [Interruption.] I hear the hon. Gentleman, from a sedentary position, hurling yet another insult. I do not know what he was like in the legal profession, but if he won as few arguments by his gracelessness and charmlessness as he is winning this evening, no doubt he switched professions with very good reason indeed.

In substance, many of the points the hon. Gentleman makes—they are not, I think, his; he is merely puppeting and gibbeting the points made by his betters and those more equipped than he to make the criticisms—are, I have to say, correct in the substance of the matter. That is why I say to the Secretary of State that, although one cannot always choose one’s friends in this House on specific topics, I am extremely troubled by what he is introducing. I sympathise with and understand the frustration that, he feels with the industry, it may well seem to those in charge of the Executive, that judicial review has become. I understand that, but my concern is that the measures my right hon. Friend is introducing are not well targeted or adjusted to the mischief he is seeking to suppress.

One of the examples I give is the provision to introduce a likelihood test as to the outcome of any judicial review. The problem with this measure is that it does two things, unintended no doubt in their consequence by the Secretary of State. First, it will turn permission hearings, and substantive hearings if permission is granted, into an immensely detailed and cumbersome process of trawling through fact and evidence so as to equip the judge to take a decision on whether it was more likely than not that the decision would have been taken anyway, and in order to demonstrate that it would have been taken anyway if the flaw had been identified by the judge. The presupposition is that the judge has identified a technical flaw, as my right hon. Friend would call it, either in consultation, natural justice or perhaps even discrimination. The public authority will then seek to justify its position by saying, “Well, it would have made no difference and you, the judge, on all of the evidence, can take the view yourself that this would have made no difference.” That converts the judge into the decision maker.