Criminal Justice and Courts Bill

Lord Garnier Excerpts

Tuesday 13th January 2015 Commons Chamber

[Chris Grayling]

My hon. and learned Friend mentions the common law approach. When it was introduced in 1974, judicial review was a limited remedy for individuals who felt they had been badly wronged by a decision made by a public body, central Government or local government. Over the years since, it has become very different, and it is now overtly used by campaign groups and third parties to seek to disrupt the process of government. He is absolutely right to say that the common law approach exists, but our judgment as a Government—I hope and believe that, at the end of the debate tonight and of the one to follow in the House of Lords, it will also be the judgment of Parliament—is that Parliament needs to set in place some tramlines within which the courts can operate. We do not want to undermine, remove or destroy judicial review; we want it to be used in the right and proper way for which it was originally intended, and that is what the reforms are designed to achieve.

[Sir Edward Garnier (Harborough) (Con)]

I have some sympathy with what my right hon. Friend is trying to do, because I witnessed at first hand the judicial review of the reburial of Richard III in Leicester cathedral. If I may say so, however, it would be very well worth while paying attention to what our hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) has said. I urge the Secretary of State and his fellow Ministers to try to work out a form of words that will avoid the trap he pointed out, but that deals with the practical problem of our courts being overburdened with footling judicial review cases. That can be done in a sensible way that does not attract the derision of the courts, and I urge my right hon. Friend to have another think.

[Chris Grayling]

We thought carefully about how best to address that issue, and the original clause was straightforwardly designed to set out the position when a case is brought on a technicality—a procedural defect. For example, in a number of cases people have argued that the format of the consultation was not handled appropriately, or perhaps a Minister or official indicated that the consultation would take place in a particular form, and that was used as the basis for a judicial review. If the official promise was to hold a four-week consultation but the Government chose to hold a three-week consultation, and a judicial review was brought on the basis that we did not fulfil our promise about the format of the consultation, the frustration is that that would have made no difference to the final decision, yet the case was brought none the less. Often, the case will be struck out, but not before taxpayers’ money and huge amounts of the time of Government officials and lawyers have been spent on bringing, defending and dealing with it.

[Sir Edward Garnier]

I agree with what my right hon. Friend is attempting to do, but I suspect he is trying to pot the wrong ball. Suppose he allowed himself to step back a bit from “exceptional public interest”—a moderately nonsensical expression, if I may say so—and consider the issue from a different angle. He will come at the right answer, which is the political answer that he and I want to achieve, and the Treasury answer that he has been invited to achieve, and we can then adjust the system of judicial review so that footling, silly cases that for some reason may have slipped through the net—

[Mr Speaker]

Order. I say to the hon. and learned Gentleman with great respect that the intellectualism and erudition of his intervention are equalled only by its length.

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[Sir Edward Garnier]

What a most unusual admonition. I think the Lord Chancellor understands my point, and I hope I am not ruining the point that my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) has already made. However, I encourage the Lord Chancellor to have one more think about this issue, because at the moment I am not prepared to vote for the Government on it. I will abstain rather than vote against the Government, but I urge him to think about some way of bringing me into the Lobby.

[Chris Grayling]

Let me give an example of one consultation response that we received when we put forward our thoughts about the changes that are needed. A group of local residents who were challenging a planning decision formed a limited company, with a small number of directors each paying £1 to the company funds. The respondent considered that by doing that the directors aimed to avoid any adverse cost consequences if the challenge was unsuccessful, and that could have meant significant costs to the taxpayer in terms of defendant legal costs that might otherwise have been recovered from a losing claimant. The respondent also said that other local residents were horrified that that small group could hold up democratically agreed development at such small financial risk to themselves.

There are two parts to that example. First, there is the financial element, and one thing I would expect us to do in the consultation is consider the use of shell companies—a shell company was used in the much discussed Richard III case. There is also the point about exceptional public circumstances. I listened carefully to and talked after the last debate to my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who suggested possible forms of words to use. We looked at that option and discussed others, and decided that the exceptional public interest threshold best achieved the goal. It may not have existed in legislation until now, but that is no reason for it not to exist henceforth. These are straightforward terms in the English language, and we are simply setting the bar one step higher than public interest. A routine matter can generally be deemed to be of public interest, and we are discussing introducing an exceptional level to that.

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[Sir Edward Garnier]

One of my problems is that the Secretary of State is trying to prove the general from the particular. We both lived through the Richard III case, and we can all learn from that, but it is not the case to build his case upon. I happen to think that the Richard III case permission hearing—it was all on paper—was wrongly decided, but that is by the way, because the eventual divisional court decision was in favour of the Government. However, I urge him not to be persuaded by the facts of that case, which could persuade someone to reach a conclusion similar to his, but to look at the wider picture and to think about what our hon. and learned Friend the Member for Torridge and West Devon said about exceptional circumstances. He should try to get at the problem that way, rather than banging his head against the wall, as he currently seems to be doing.

[Chris Grayling]

I do not accept that I am banging my head against the wall. I think we have struck a sensible balance. We have seen important development projects delayed by judicial reviews brought on technicalities. It is important that judicial review not be used as a tool for delay, rather than a genuine way of holding public bodies to account.

I want to tackle head-on what the hon. Member for Hammersmith said about the secure college. The youth detention system is not delivering the results the country needs. In the small units in secure children’s homes, in the larger units in secure training centres—where teenage boys and girls sit side by side in the same classroom, let alone the same institution—and in youth offender institutions, the performance in terms of reoffending is unacceptable: about 70% in each of those three institutions. That is not the way forward.

We are seeking, simply and straightforwardly, to create an environment that strikes a balance: a critical mass of curriculum and skills development—we cannot, in a small unit, deliver a building skills workshop alongside a literacy, numeracy and computers skills centre—and an environment that recognises that the people who end up in detention are often troubled, challenged and from the most difficult circumstances. I am seeking, simply and straightforwardly, to take away the iron bars from the windows and create an environment that is more supportive, more educational and more likely to turn their lives around. I want to create a system that is run by educationists, not simply prison officers, and that has every chance of delivering a better outcome.

I have been deeply disappointed by the lack of imagination from the Opposition, who have opposed these proposals but said nothing about what they would do—not an unusual feature of their behaviour. We have heard no fresh ideas on how to deal with this very real challenge. All they do is oppose, oppose, oppose. Given the exorbitant cost of these small units, our proposals would save several million pounds a year, although they would require a big capital investment. The Opposition have not said how they would cover the savings we will generate by harmonising the estate to deliver that critical mass of education at an affordable price, and in a way that will be more nurturing and supportive of young people.

From the Labour party, we have heard no answers, only opposition, opposition, opposition. It is not fit to govern. It is a party without ideas and without direction. It wrecked the country before, and it would wreck it again. That is why our reforms are so important and why we need to progress the Bill and our other measures.