Criminal Justice and Courts Bill

Julie Hilling Excerpts

Tuesday 17th June 2014 Commons Chamber

[Robert Neill]

I am sorry to say—perhaps not for the first time—gently, and with the affection of one legal professional to another, that the hon. Gentleman rather misses the point. We all want good decision making and nobody is saying that there is not a role for judicial review. When I listen to some of the rhetoric from the Labour Benches, I am tempted to think that my right hon. Friend the Lord Chancellor is proposing to abolish judicial review. No such thing is proposed and it is nonsense to say so. But there has been a significant degree of mission creep, to use a popular term, in judicial review. It is reasonable to say that that now needs to be rolled back. That is what the Bill seeks to do.

[Julie Hilling (Bolton West) (Lab)]

Does not the hon. Gentleman agree that the real risk here is that those people who are least able to access justice—people with the least means to pay for advice—are the most likely to be squeezed? I hope later to give examples of where judicial review has really helped the little people. The problem with these clauses is that we risk giving ordinary people less access to justice.

[Robert Neill]

I cannot say that that has been my experience. If we were removing the process of judicial review and challenge, that would be a legitimate criticism. But we are not. To change a threshold around, for example, the “highly likely” test does not exclude a deserving case from seeking remedy. To deal with the issue of interveners does not remove a deserving case from the prospect of remedy through judicial review. If it imposes a degree of discipline in the thinking behind the bringing of such challenges, that is a good thing and we should not apologise for it.

[Julie Hilling]

But the issue is who will pay for the interveners for those people who have least access to finance and justice. Interveners will be allowed but who will foot the bill for people who do not have the means to pay?

[Robert Neill]

With respect to the hon. Lady, it is seldom persons in that category who are the interveners; they are much more likely to be the bringers of the review. I will come to the role of interveners in a moment, but let me finish the point about the way in which there has been mission creep in judicial review and the sometimes damaging effect that that has on the decision-making process.

The situation is a little like what we found with local government finance at one time, when officials tended to play tick the box so that someone qualified for the right number of grants. There is an element of that sometimes in the decision-making process, where decisions are always taken with an eye over the shoulder at the risk of judicial review rather than getting to the merits of the matter. If these clauses help, as I think they will, to move away from that culture, that is a good thing, as it will then encourage imaginative and radical, but always fact-based, decision making. It will always have to be fact-based because, after all, the Wednesbury reasonableness test is unchanged; it remains in any event. There will always be scope for challenge of irrational decisions, or of decisions that are genuinely not based on evidence. But removing the threat of judicial review to the extent that it now hangs over decision makers is sensible and proportionate.

--- Later in debate ---

[James Morris]

I will not give way again. I am drawing my remarks to a conclusion.

We should not create an environment in which people have the expectation that going for a judicial review will somehow impact on a decision. I welcome the changes in the Bill. We need to improve the balance between judicial review and local democratic accountability to enable public bodies to make long-term decisions on behalf of communities and constituents.

[Julie Hilling]

I rise to speak with some trepidation as I face a Chamber full of lawyers and barristers; I am neither, and never have been. I want to put it on the record that I am a member of the Howard League for Penal Reform.

All those who gave evidence to the Bill Committee spoke as one against the clauses under discussion. They said that the Government should not be making such moves. This is one of the nastiest bits of the Bill: it is very much a David and Goliath situation. From my perspective, and that of my constituents, the Government have already curtailed legal aid, and are now further curtailing access to justice. I understand why the Government want these changes. As a parent, an employer or a Minister, we never want our decisions to be challenged. I am sure that when Labour is in power, I will not want our decisions to be challenged. However, politicians are not always right. I know that that might come as a dreadful shock, but it is the truth.

Interestingly, Government Members on the Bill Committee were very concerned that interventions were coming from some of the most dreadful left-wing groups; in fact, the challenges came from everywhere. People were saying, “Actually you have got things wrong and we want them to be looked at again.” This is about people having access to justice and being able to go to judicial review; it is about David being able to stand up to Goliath. Those organisations that are prepared to support people are helping to hold the powerful to account. They are organisations that Members on both sides of the Chamber support, through subscriptions and fund raising, to help those who are least able to find the financial means to take their cases to court.

Much of this Bill is about secrecy and limiting access to justice, but David does need help to fight Goliath. By placing financial barriers in the Bill, we are saying that those organisations should not be part of our judicial system, but they are the part of civil society that ensures that society stays civilised. They are not a barrier to ensuring that the law is imparted properly, but part of ensuring that everyone in this country, whatever their means, has access to justice.

The Howard League, in its evidence, said that when experts receive permission to address the court through the provision of argument or evidence, they do so neutrally with the aim of assisting the court, and I very much believe in that. It has always been an established principle that the loser pays the winner’s costs, yet neutral interveners are unable to win or lose as another party may, and are almost always unable to recoup their costs. The proposals reinforce the position, and even make it worse, as they put additional costs against the interveners.

The proposals create perverse incentives. The better the case put forward, the more chance of higher costs being charged against the interveners. Let us think about those situations in which third parties have intervened. Last year, the Howard League intervened in a successful case brought by Just for Kids, which established the right of 17-year-olds to see an appropriate adult on being taken into police custody. Members might remember the tragic deaths of two 17-year-olds who were denied that right. In that case, the court recognised that many important arguments emerged from the intervener’s submissions. The Howard League said:

“It would have been perverse for the charity to be saddled with the costs of the government in responding to our legitimate and expert legal argument that was designed to aid the court in its decision making.”

The changes to the cost rules on interventions go directly against the advice of senior judiciary in their response to the Government consultation on the reform of judicial review in September 2013. Indeed, the courts can already impose cost orders against third parties, but the fact that such orders are rarely made shows that courts benefit from hearing from third parties.

Given that the Government took the advice of the judiciary not to bar third sector organisations from bringing claims by changing the rules on standing, the decision to introduce onerous cost consequences for those seeking merely to assist the court defies logic.

[Mr Redwood]

Does the hon. Lady agree that the main way in which our constituents should get redress from bad decisions, or influence bad decisions in a better direction, is through the representation of their MP or councillor?

[Julie Hilling]

I thank the right hon. Gentleman for his intervention, but he puts forward a false position. In this House, I can speak on behalf of my constituents and attempt to get Ministers to act on their behalf, but I cannot overthrow the rule of the court. We can of course attempt to change the law in future cases, but it is judicial review that enables our constituents to have recourse to justice, ensuring that justice works on their behalf, not just on behalf of the state.

I wanted to give a number of other examples of where judicial review has been used, but I will instead finish by saying that the Government should be ashamed that they are taking these steps to limit even further access to justice. They are further limiting the ability of the ordinary person to challenge the state and to say, “Actually, you’ve got it wrong on this occasion.” We will have better law and better justice if we do not curtail access for those who need it the most. I am most concerned about the little people at the bottom who will, thanks to these measures, not be able to access justice. I hope that the Government will see reason and accept our amendments. If they want to ensure that we continue to have a civilised society, they must support access to justice, and they must support David against Goliath.

[Mr Vara]

I thank all those who have contributed to the debate, and I hope that I can put on the record at least some of the points that I wish to make before the clock runs out at 2.39 pm. I thank my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) and, through him, the legal fraternity for all their help in ensuring that we have tidied up some matters relating to planning.

--- Later in debate ---

[Yasmin Qureshi]

I thank the hon. Gentleman for that helpful intervention. I have never said that people should not be imprisoned. When people commit serious offences, or repeat an offence, they should be given prison sentences. My point is that we incarcerate too many people for far too long. No one here will disagree with that point—[Interruption.] Well, some seem to think that people should be in prison for ever. But we know that if we bang people up for a long time, it just costs hundreds of thousands of pounds, whereas if they are on the outside and we help them by rehabilitating them and perhaps finding them accommodation and a job, their lives can turn around. That is where the money should go, but that does not take away from the fact that some people should be imprisoned for a long time, depending on the seriousness of their offences.

[Julie Hilling]

Does my hon. Friend agree that some people, both young and older, need to be removed from society, but where we put them while we attempt to rehabilitate them is an important factor? Putting a lot of young people together in a secure college does not work. The most effective form of “treatment” for young offenders is small units where they can get individual attention and help to divert them from the path of offending.

[Yasmin Qureshi]

rose—