Judicial Review and Courts Bill (Third sitting)

Janet Daby Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Andy Slaughter]

I am grateful to my hon. Friend, who makes exactly the right point. He did not hear me paying tribute to him when he was temporarily detained elsewhere. I am pleased that, as an experienced shadow Minister, he is on the Committee.

People in charge of public authorities should welcome judicial review, which, like many court and tribunal processes, is a way to scrutinise and improve decision making either directly through a challenge or because they want to avoid such a challenge. In my humble way, I remember the 10 years or so when I was running a local authority, and unless other members of the Committee were also in that position—there may well have been—I have probably been subject to more judicial reviews than anyone on the Committee. I must say that while we can take a view on the merits of an individual case, the process is generally beneficial for the authority. As my hon. Friend said, what have they got to hide?

[Janet Daby (Lewisham East) (Lab)]

Does my hon. Friend agree that judicial reviews are a part of the checks and balances on Government?

[Andy Slaughter]

I absolutely agree. It is an important part of those constitutional checks and balances, and it has become more important. In a country without a written constitution, it is totally appropriate that a common-law process such as judicial review should develop as it has. I do not mean that it is excessive or that it has grown out of control; it has simply moved with the times in a way in which our senior courts in particular are able to do. As I say, the Bill is a clear attempt to reduce proper accountability for state actions.

--- Later in debate ---

about the quashing of the development consent order. Applying a prospective-only quashing order remedy, it would be unclear whether ultimately the building works would go forward; probably they would, but we do not know that. However, the court may be obliged to make this order if it prevented the continuation of building works, as that might provide “adequate redress” for the claimant.

[Janet Daby]

Does my hon. Friend agree that all sorts of consequences arise from the proposed measures? They are likely to make things much more complicated and less clear, and to provoke further litigation.

[Andy Slaughter]

Yes, and I am grateful for that reminder. I have a little more to say on the Stonehenge case and I will mention one other case that is familiar to Members. However, my hon. Friend makes exactly the point: there is mischief caused here. However many times the Government say, “This is designed to simplify and extend the powers,” the less credible that seems when one looks at the actual nature and type of decisions that would be affected, and at how they would be affected.

In the Stonehenge case, the likely effect of the order would be to remove the possibility for collateral claims for compensation against the Government for their unlawful decision up to the date of the prospective order. All preceding activity, including expense in performance of any contracts that the judicial review court may not be fully aware of, if at all, are reliant on the unlawful decision would be considered lawful to the date of the order, even though the full contracts could not be completed. This could cause significant loss to contractors who were not present to make representations during the hearing, as they could potentially only claim for losses thereafter.

The other case I will mention is the Unison case, which is another important real-world example. It is worth considering the impact that prospective-only remedies could have had if they had applied in that case, which concerned, as I think all Members know, fees to access employment tribunals. Having found that Parliament could never have intended a clear derogation from the right of access to justice, the Supreme Court quashed the order that required individuals to pay to use the employment tribunal.

The remedial consequence of the quashing order was that the Government were required to retrospectively refund the claimants who had been charged fees. A prospective-only remedy in this scenario would have denied the claimants this refund and therefore would have been a serious injustice to the claimants, whose fundamental right to access to justice had been found to have been violated.