Criminal Justice and Courts Bill

Heather Wheeler Excerpts

Tuesday 17th June 2014 Commons Chamber

[Robert Neill]

I rather suspect, Mr Speaker, that you have anticipated how my ministerial career came to an end as well, delightful though it was at the time. I am happy to draw my remarks to a close, because I know that my right hon. Friend the Member for Wokingham (Mr Redwood) has a great deal of expertise on this matter. I will also welcome the contribution of the hon. Member for Aberavon (Dr Francis), not least because his predecessor was a member of my chambers who led me on a number of cases, including some judicial review matters with which he dealt expertly. [Interruption.] I am sorry to have driven you from the Chair, Mr Speaker.

Let me conclude with these thoughts. The judicial process is important for its checks and balances. That position is not being changed by the Government’s proposals; what they are providing is a reality check on the process of judicial review. On the issue of interveners, if someone chooses to intervene in litigation, they should not do so without being aware of the costs that their intervention can bring. That is what we are seeking to do. It is often the intervener, rather than the initial parties, who takes up the bulk of the time in the case. It is logical for someone who seeks to intervene in a case—no one is obliged to do so, after all—to face the discipline of the potential costs.

[Heather Wheeler (South Derbyshire) (Con)]

My hon. Friend is making an important point. When constituents write to me about planning inquiries and the like, they want to know the true cost, because ultimately, one way or the other, the taxpayer is paying for all this. The facts must be clearly put out there. I thank my hon. Friend for the argument he is proposing.

[Robert Neill]

I am grateful, and that provides a suitable point for me to conclude. The costs apply not just to individual litigants and therefore to companies and local authorities, because the cost to a local authority is ultimately a cost to the taxpayer, and then there is the opportunity cost to the planning system and the court system that comes from bringing needless judicial reviews. There is nothing in the Bill to prevent a meritorious claim from coming forward and being heard, but it provides some checks and balances in the matter—a reminder that the common law does not exist independently of the House. Ultimately, accountability lies here through Parliament. The judiciary has an important role to play in interpreting the will of Parliament.

Occasionally, I look at judgments in judicial review cases and gain the impression that one or two of the senior judiciary have rather concluded that the common law somehow exists in isolation. The development of case law is important, as suggested, but it should happen within the framework set by this democratically accountable House. We need to redress the balance to ensure that while the House is accountable, a democratically elected local authority is the right primary accountable body in its sphere of competence. I thus commend both the planning and the judicial review provisions.

[Dr Hywel Francis (Aberavon) (Lab)]

It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill), not so much for the content of his contribution as for its tone and humour. I am afraid that I will not be able to match his humour. He beat me to the punch by telling us about his friendship and legal partnership with my distinguished predecessor, Lord Morris of Aberavon. I suspect from the tone of the hon. Gentleman’s contribution that he must have learned it at the feet of my predecessor. The general tone of this debate has been very constructive, so I hope the Minister will respond positively to the constructive contributions.

I particularly commend the contributions of my hon. Friend the Member for Rotherham (Sarah Champion) and of the hon. Member for Cambridge (Dr Huppert)—I was about to call him my hon. Friend—who contributed progressively and constructively to the work of my Joint Committee on Human Rights earlier in this Parliament.

I shall propose my own amendments 42 and 44 and speak in support of amendments 24 to 32 and 36, tabled in the names of my hon. Friends the Members for Hammersmith (Mr Slaughter) and for Barnsley Central (Dan Jarvis) and recommended by the Joint Committee on Human Rights, which I chair. Let me remind everyone that the Joint Committee is made up of members of all parties and that the majority of its members are from the coalition parties. When a report from our Committee is unanimous, it means that it was supported by Government Members.

My Committee has done a lot of work on the implications for access to justice of the Government’s proposals to reform both legal aid and judicial review, and we continue to take evidence on these important matters. Earlier this year, we concluded a detailed inquiry into the Government’s judicial review reforms. Our report, which came out in April, pointed out—as did my hon. Friend the Member for Hammersmith in this debate—the crucial importance of judicial review to upholding the rule of law in this country. It is, I believe, one of the fundamentals that seems to be in everyone’s list of “British values”—much discussed of late.

Amendments 42 and 44 were recommended in my Joint Committee’s report. They are necessary to ensure that the Bill does not go too far in curtailing one of the most important developments in recent years, which has increased effective access to judicial review to hold the Government to account. The courts have carefully developed costs capping orders, which are also known as protective costs orders, to ensure that meritorious challenges to the legality of Government action are not prevented by the fear of a crippling bill for costs. In appropriate cases, they remove the disincentive to litigation of the ordinary “winner takes all” costs rules.

Corner House Research, a non-governmental organisation with expertise in countering bribery and corruption, brought judicial review proceedings against the Department of Trade and Industry for not doing enough to counter bribery and corruption through its export credits guarantee scheme. The courts believed that the legal challenge raised important issues of public interest that needed to be decided. The case was, however, brought only because of a costs capping order limiting the costs exposure of this important NGO.

The Government are concerned that the test for providing such costs protection has become increasingly flexible, as a result of which costs capping orders are being granted too frequently. The Lord Chancellor and Secretary of State for Justice said that they seem to have

“become the norm rather than the exception”.

According to his way of thinking, a lot of well-off campaign groups are bringing cases safe in the knowledge that their costs exposure will be kept down by a costs capping order. My Committee looked into this issue in detail and found the Lord Chancellor’s concern to be exaggerated. The senior judiciary, in its response to the consultation, also doubted the Lord Chancellor’s claim. Other than in environmental cases, where a special cost regime applies because of the UK’s EU obligations, the judges’ experience is that the use of costs capping orders is not widespread.

We welcome much of what is in the Bill on costs capping, including the Government’s decision to put costs capping orders on a statutory footing and to enshrine the common law principles into a statutory code. This seemed to my Committee to be a welcome recognition in principle of the importance of costs capping orders as a way to ensure practical and effective access to justice. We also found that the new statutory code in clauses 59 and 60 is a broadly accurate reflection of the principles developed by the courts, and for the most part merely reflects the restrictions on the availability of costs capping orders that are already applied by the courts.

In one very important aspect, however, the Bill includes a restriction that has the potential to limit very severely the practical effectiveness of costs capping orders. Clause 59(3) provides that a costs capping order may be made by the courts

“only if leave to apply for judicial review has been granted.”

The Government’s justification for this restriction is that only cases with merit should benefit from cost capping orders, and the test of whether a case has merit is whether it is granted permission to proceed by the court. In practice, however, this provision seriously undermines the utility of costs capping orders and may lead to meritorious judicial reviews not being brought because the cost risk is too great.

[Heather Wheeler]

Can the hon. Gentleman provide any examples of where that might have occurred? I am finding it very difficult, and I think the taxpayers of South Derbyshire will find it very difficult, to think that people’s rights to open justice are being curtailed in any way when we are not seeing meritorious cases that ought to come to court. Judicial reviews have got out of hand, my friend.

--- Later in debate ---

[Mr Redwood]

I beg to disagree. I entirely understand what the Government are trying to do. They are trying to warn certain potential users of judicial review that it is a fatuous process if it turns out that the original decision was perfectly reasonable, although there may have been some difficulties with the process. If too many decisions are subject to too much court examination continuously, it is often possible for a clever and well-paid lawyer to find something slightly inappropriate or questionable in the way in which a council or Government Department made a decision, although the decision itself was correct. It might be better if the money were not spent, and if the courts’ time were not taken up with applications when the position cannot be improved for a litigant who remains in dispute with the council or the Government, and who will not secure a reversal of the original agreement.

The bulk of the work to which the new clauses and amendment relate lies in the intricate and sometimes opaque drafting of new schedule 3, with which we non-lawyers are perhaps struggling a little. It is a complex piece of work, because it amends various pieces of underlying legislation. I have one or two queries with which the Minister may be able to help me, knowing as he does that I approve of what he is trying to do, and am merely trying to clarify some of the ways in which it would operate. For instance, I do not quite understand the logic of paragraph 4(7) of new schedule 3, which provides for new subsection (6) of section 288 of the Town and Country Planning Act 1990 to state:

“The High Court may not suspend a tree preservation order under subsection (4C) or (5)(a).”

That is not entirely similar to some of the other proceedings.

I am also interested in the timings. The period during which due consideration must take place seems generally to be specified as six weeks, but I wonder what the overall period will be when the High Court finds that the judicial review process should proceed. In the case of planning issues in particular, delay can impose complexity, blight and difficulty in the area involved, and if the end result is that the development goes ahead anyway, it becomes a real issue. I am sure that questions of timing and delay lie behind some of the work that the Government have been doing.

[Heather Wheeler]

I think that my right hon. Friend has hit on a very interesting point. It seems to me iniquitous to build in delay in cases in which the result could not have been changed in the first place. I hope that the Minister will be able to explain why he considers this to be such an important tidying-up mechanism.

[Mr Redwood]

I do wonder whether a period of six weeks is required. Presumably the proposal relates to a typical case in which those who are likely to object have followed the earlier processes of the application in great detail. After the original decision there may have been a planning appeal, and they will surely have all their arguments prepared and be ready to move before six weeks have passed. That period seems fairly generous in the circumstances. I wonder how much longer the process is likely to take, and how much High Court capacity there is for dealing with such cases expeditiously.

While I am keen to defend the green fields in my patch from inappropriate development, and am very accustomed to the techniques that we sometimes need to use for the purpose, I am also aware that we need land for building, and that people sometimes object to developments in certain locations that independent-minded people would deem perfectly reasonable. I suspect that in the case of applications of that kind, we might get into difficulties. I am pleased to see that you know exactly what I mean, Mr Deputy Speaker. When we seek to represent our constituencies, we all try to balance such considerations. I am strongly in favour of new growth and new development, but I am equally strongly against its taking place in certain localities where I would find it objectionable, as would many of my constituents.

Let me make two more brief points. I note that new schedule 3 proposes an amendment to the Planning (Hazardous Substances) Act 1990. It states, of course, that leave cannot be granted without the High Court’s approval, but I think that the main issue is whether it poses problems of a different kind, which, given that hazardous substances need to be controlled carefully, might make a more timely result even more crucial.

The new schedule also refers to the Planning and Compulsory Purchase Act 2004. Perhaps the Minister will tell us whether any different considerations apply when someone’s property is the subject of compulsory purchase. I would expect a higher standard of proof, and more rights for people to object, to apply when the estate or the council envisages a better use for land that they own than when a piece of land which is near to where they live, but which belongs to someone else, has been subject to various planning processes and the owner wishes to develop it. I think that those are slightly different cases, and that litigants should be given more protection when they are subject, under the Act, to a compulsory purchase to which they object or which they do not welcome.

I hope that the Minister will be able to clarify some of those points.