Criminal Justice and Courts Bill

Lord Deben Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Lester of Herne Hill]

I ask the same question of the noble Lord, Lord Tebbit. If he thinks that Ministers, not judges, should make the judgment, then we are in wholly different places. The answer to the question of the noble Lord is that in the end it is for Parliament to make the laws, it is for the Executive to administer the laws, but it is ultimately for the courts to decide and to declare what the law is when it comes to public law, as for any other kind of law.

It is important to emphasise, for the benefit of the noble Lord, Lord Horam, in particular, that there is no automatic right to judicial review. It has to be applied for. It is granted only if the administrative court is satisfied that the application raises a properly arguable case by someone with a sufficient interest—not a mere busybody—who has exhausted any effective alternative remedy, such as a planning appeal.

The application has to be made without inordinate delay. The concerns of the noble Lord, Lord Horam, about delay are, therefore, met by the strict requirements of the administrative court. If the application succeeds, the court has a broad discretion that the remedy is necessary and proportionate. It will not permit the procedure to be abused. It will punish any abuse of procedure with an appropriate cost order.

If, as the Justice Secretary contends,

“‘left-wing’ campaigners have exploited the process of judicial review to frustrate government initiatives”,

—dear me!—the courts have ample powers to ensure that judicial review is not abused, including making cost orders against those who abuse the procedure.

It is an ancient principle, probably going to back to Magna Carta, that under the common law, which is at the heart of our system, no one shall be judge in his own cause. In seeking to interfere with the powers of the courts, and to place obstacles and handicaps in the way of application for judicial review, the Justice Secretary and the other Members of the Government—Liberal Democrat as well as Conservative—are judges in their own cause. They have a political self-interest in what is in Part 4.

But this House is in a different position. We have a vital constitutional role in protecting the rule of law and the accountability in law of Ministers and of government departments and of all public authorities. The House has the opportunity this afternoon to fulfil that role by placing the wider public interest against party-political interest. That is why, though I do not enjoy being a rebel, if there are Divisions on any of these amendments in the name of the very distinguished supporters of this one, I shall cross the floor and shall vote with them.

[Lord Deben (Con)]

My Lords, many Members of your Lordships’ House will understand that I very often come to debates on legal matters in order to make sure that legally trained people do not have it all their own way. I have always felt it a danger of this House that legal issues are debated by judges, who, it is often suggested, may have ulterior motives. I speak today because I think the judges are entirely right, and the concern that I have is a concern for my own historic profession of politician.

I well remember the occasion on which I was able to use the fact of judicial review to get my civil servants to understand why I would not accept a particular appeal on a planning matter. It was because it was quite clear to me that the very powerful interests, whose infrastructure aim I entirely approved, had failed in their duty to look for alternatives to the proposal that they were putting forward. They had not, therefore, fulfilled the law. Now, sometimes it is easy for a Minister to make such a decision, but sometimes it is inconvenient. It is important that embarrassment and inconvenience should not be allowed to go so far that it means that Ministers make decisions which are unlawful. Somebody has to decide when a decision is lawful and when it is not. That is what judicial review is about; it is a very simple concept.

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[Lord Deben]

Happily, we are not discussing the European courts at the moment. In case anyone did not know, I am entirely in favour of our membership of the European Union. I think we should keep the defence of people’s freedom by the Bill of Rights that we have in the European Union, invented after Winston Churchill. I could go on for a long time, but I will not be led there by my noble friend. The truth is that we are talking about British law, British judges, British courts and the British defence of freedom that is judicial review. I hope that your Lordships’ House will remember the words of the noble and learned Lord, Lord Woolf, when he remarked that this is part of the structure that saves us from having to have a written constitution. This is the mechanism that we have invented. As a mechanism, every now and again it is annoying to Ministers. That should be a judgment of its correctness. That is what it is there for: to make Ministers annoyed enough to make sure that they do the right thing. In that sense, I have in the past—as is bound to be true after 16 years as a Minister—been annoyed by the facts of judicial review, but it made me a better and fairer Minister because I had to think of the law and not of my opinion at a particular point.

I want to say just one other thing. My noble friend Lord Horam said we should trust the judges. That is precisely what those of us who support the amendments are asking. We are saying that we should not say the judge shall not; we should say that the judge has the right to decide. We think there ought to be discretion but the Government are saying that there should not. I find that unacceptable. I do not want the division of powers that one sees in the United States. I want the kind of elegant association of powers that we in this country have worked out over the years. However, an elegant association of powers is held in place by very delicate mechanisms, which we fiddle with at our peril. This is one of those very delicate mechanisms that we will not fiddle with without very considerable effects. Just in case anybody heard the comment about left-wing people misusing this, I remind the House of what happens in the United States where it is almost universally right-wing people who make life almost impossible for elected Governments by using their system of separation of powers. How extremely clever we have been over the centuries to produce something that works so well, is so delicate and interrelates so well. Having done that over centuries, let us be a bit careful about being too clever with it now.

[Baroness Williams of Crosby (LD)]

My Lords, we have heard a brilliant speech. I associate myself very much with what the noble Lord, Lord Deben, said about the absolute necessity for Ministers to be obliged to bear in mind all the time how far their policies and decisions are in line with the law. Like the noble Lord, Lord Deben, I was also a Minister for a long time. During that period, on more than one occasion, I was confronted in a very direct way with challenges to the decisions I had made, particularly about issues around comprehensive schools. What I learnt from that experience was, first, to be very careful and thoughtful about any proposals that my department made in my name. Secondly, I learnt to have great respect for the often painful occurrence of reviewing my decisions in great detail, no doubt to the displeasure of a number of local authorities who did not share my view.

I want to make two other quick points. First, our own great Conservative Party has always been deeply suspicious of statism, unlike many right-wing parties in Europe and elsewhere, and has always had a commitment to the idea that the Government might be wrong and that they should be subject to the rule of law like all other citizens and parties in society. I find it, therefore, all the more puzzling that a party with that record and reputation can put forward this extraordinary Bill. I am here, not having taken part in the earlier stages—I had no intention of taking part—only because, when I read in detail both the Bill and the amendments, I became very troubled indeed.

The second crucial point is that the Conservative Party has always been centrally loyal to the concept of its patriotism to the British tradition and British values. As my noble friend Lord Marks, the noble Lord, Lord Deben, and the noble and learned Lord, Lord Woolf, have all said, at the very heart of the best of British values is the concept of accepting the rule of law. It is worth saying that almost no other country in the world—certainly no court, such as the European Court of Human Rights, which is nothing to do with the European Union, as may not be realised; it is to do with the Council of Europe—allows an individual, someone with no standing, no resources and no money to challenge the might of the state itself.

I am very troubled by some of the clauses, which will make it difficult for that same humble individual citizen to stand up to the state because he or she lacks the resources to do so or the ability to pay for brilliant lawyers. That is exactly the opposite of what we thought—what I have always deeply believed—that judicial review was all about. Whatever the process may be called, the truth of the matter is that the public broadly, to put it bluntly, trust the judiciary rather more than Governments, who come and go. Our judiciary has undoubtedly formed itself a substantial reputation.

The noble Lord, Lord Deben, rightly referred to the judicial system in the United States. Many Members of this House will be aware that over the past five or six years, there has been an absolutely steady uniformity of verdicts—five to four, five to four, five to four—on one issue after another, because, like it or not, the judiciary in the United States is politically chosen. That is why you cannot treat it in the fullest sense as independent; it is heavily dependent on who was President at the time that a particular judge was appointed.

Let us take pride in what we have been and what we are: one of the few countries in the world where an individual is treated as having the full right to challenge the Government and other forms of the Executive. Let us recognise that that has been treated in much of the rest of the world—not least on the continent of Europe —as one of the outstanding claims for the United Kingdom to be treated as an exceptional country, one that, ever since the days of Winston Churchill and the Council of Europe, has been persistently followed. It has had a huge influence on, for example, eastern and central Europe who follow us in that concept of the rule of law.

I conclude by saying that it would be an act of absolute tragedy if we were to allow a law to go through that begins to put in doubt that reputation.

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It is important also to emphasise that the judge will have discretion over both aspects: causation and quantum. That will ensure that the parties will continue to carry a costs risk, helping to ensure that they do not engage the most costly legal advice available to deal with points that do not truly merit that level of expertise.

[Lord Deben]

My Lords, I am grateful to my noble friend for giving way. I am listening very carefully. The tiny bit that I do not understand is why the judge should not have discretion to decide whether the case merits payment of costs or not. The discretion is very bound, because he has to maintain that these are exceptional circumstances. I find that difficult. Why cannot he be given the right to say, “In this case, they ought to pay because they have been in one way or another negligent”, or have overcharged, and in another case that they should not? Why cannot we leave it to the judge? It is his court and he should make the decision.

[Lord Faulks]

My Lords, of course that is the burden of the argument in favour of the amendment, and that is the current situation. The clause is intended to place a higher burden—we accept that it is a higher burden—on interveners to think carefully about the intervention that they intend to make as to whether it is truly worth while.

Before my noble friend’s intervention, I was stressing that the judge has discretion over both aspects: causation and quantum. The intervention may have caused only a degree of additional costs, rather than the entire costs of the action, which will modify the intervener’s exposure to costs. That will be a matter for the discretion of the judge. Of course, it is ultimately up to the judge to decide what are exceptional cases. Judges have different views as to what constitutes an exceptional case, but ultimately it is for the judge. It is very rare, if at all, that one sees appeals on questions of costs having any success. Amendment 164 would remove both presumptions that the clause creates, replacing it with a general discretion, which my noble friend would like, for the court to award costs either for the intervener against a party or to require the intervener to pay the parties’ costs. That is the status quo.

Clause 73 has been criticised for being too broad and meaning that interveners could be expected to pay costs in any circumstances. Critics have said that that means that an intervener would not be able to intervene in important cases and provide assistance to the court, as the risk of adverse costs is too unclear and potentially too great. Under Clause 73, what amounts to exceptional circumstances will ultimately be set out in court rules. That will provide clarity for an intervener at the point where they are considering whether to intervene on the manner in which they should carry out their intervention or risk costs.

Clause 73 does not mean that in every case where an intervener is involved they will be forced to pay all the costs of all of the parties, but it is right that they have a fairer financial stake. All those with experience will confirm that, just as interveners can add value, they can delay and hinder and make arguments that simply amplify or repeat—