Criminal Justice and Courts Bill

Lord Horam Excerpts

Monday 27th October 2014 Lords Chamber

All of that will be made more difficult if the Bill passes unamended.

[Lord Horam (Con)]

My Lords, the noble Lord, Lord Pannick, said in his introduction to this group of amendments that he could see no good reason why the Government have brought in these changes. However, he will recall that these changes in this Bill, and in the Infrastructure Bill, were first mentioned by the Prime Minister in his speech to the CBI in 2013. That was the genesis of this group. The noble Lord is nodding, so I think I am right.

The reason for that is that the Government are concerned, as the Minister has said on a number of occasions, about the fact that we have fallen behind as a nation on infrastructure. I am not making a party point; it happened under the Labour Government and the coalition Government as well, which means that, frankly, we have too few trains to deal with commuters, too many jams on the roads, too few houses, too few schools in the right place, et cetera. Now is the perfect time to give a kick-start to infrastructure. This is why Christine Lagarde. the chief executive of the International Monetary Fund, is pleading with Governments around the world to give more attention to infrastructure spending in their economies. Larry Summers, the ex-US Treasury head has said that at the moment infrastructure spending on housing, trains, or whatever is virtually a free lunch because interest rates are so low.

This is the situation that we face and which the Government are addressing. Therefore, they brought forward the Infrastructure Bill, which we are considering in another part of the House, and these clauses to this Bill. The reason is that judicial review has and is causing delay to many projects up and down the country. I will not go into the details that were advanced before the Recess. My noble friend has outlined some of the examples and I will not weary the House with them again. The examples of delay are obvious. It is also inhibiting the decision-making in government bodies. James Morris, the Member of Parliament for Halesowen and Rowley Regis, who before becoming a Member of Parliament was the chief executive of Localis, the local authority think tank, made the point that judicial review has now entered the bloodstream of decision-making in local authorities and other government bodies to the extent that when a decision is made they have to know whether it will be judicially reviewed and have to hire a barrister to find out the implications of all that. That is slowing down the decision-making in local authorities when we are urging them simultaneously to get a move on with lots of projects up and down the country. Indeed, I think that the Chancellor of the Exchequer is in the north of England at the moment urging local authorities to do more there.

Judicial review is also undoubtedly abused. My noble and learned friend Lord Mackay of Clashfern made the point in our earlier debates that it is very often used as a blocking device. It is meant to be about the process but very often the people who use judicial review are not concerned with the process; they are using it merely as a means to stop a particular development.

Lastly, judicial review is costly. There have been arguments about exactly how much it has increased in quantum over the past few years, and if you take out the immigration cases I can see that there has been an increase, but it is certainly not that much. None the less, as was made plain once again at Question Time today from the opposition Benches, the deficit has proven difficult to control and we are spending far more money than we are raising from taxation. This is an area where public expenditure has increased, and it has not received the cuts and restraint that other areas in this field have.

The professional interests here—the lawyers and so forth—have objected to the Government’s measures. There can be no objection to their objections; I fully understand where they are coming from, and it is very reasonable that the Government’s argument should be tested fully as to why they are using this particular technique to try to improve infrastructure in this country. The professional interests have used a number of arguments. The first is that there is no reason for this measure, but I think we have now demonstrated that there is clearly a need for further help with infrastructure and to clear away some of the roadblocks from it.

It is understandable that they would be concerned about human rights and the rule of law. We are discussing a clause that would make no difference, or would be highly unlikely to do so, to any end result from a judicial review. It is very difficult to argue that there is a significant change or a significant diminution to human rights if the end product of any particular judicial review would make no difference to the reality of the situation.

Even if that were the case, as my noble friend Lord Marks said at an earlier stage, we should trust the judges. If, let us say, the quantum of judicial review were 100 and it came down as a result of this Bill to 80, I would trust the judges to make the appropriate judgments about what was important and what was not—which cases merited discussion and which did not. That is their role; they are clearly very experienced at it and they have a good reputation, and I see no reason why that should not carry on.

The noble Lord, Lord Pannick, said again today that the measures would not work and would actually slow things down. The Minister gave a detailed rebuttal of that at an earlier stage before the recess—he set out various points on 28 July at col. 1462 of Hansard—and I will not go into that again. However, the truth is rather different. I would make a general point here: no Government of any shape or kind can always predict exactly what the consequences of any measures are. All those who have been Ministers know that you take a suite of measures and apply them, and some will work while some will not and some will work better than others. That is the nature of government; you do not always know what will work. Therefore, for the noble Lord to say that these measures will not work is stretching credibility. It is not a sustainable argument to say in advance what will work and what will not.

I also think, although obviously I am not a lawyer, that it is very unlikely that the judges will make things work in such way that they are inefficient. We know that there is a long trail of meritless cases and that about only 20% of cases get through to the final stage so there is a lot of unmerited work there, and surely that can be conducted more efficiently. It seems to me, looking at it as an economist, not as a lawyer, that there is a pressing need to ensure that this process does not, as many people are saying, inhibit decision-making in the public body. It does not, it seems to me, have an implication of a serious kind for human rights or the rule of law. As the Prime Minister said in his speech to the CBI, when the conditions are so right, it is necessary that we get a move on with infrastructure building in a significant way as soon as possible. It has coalition support. The noble Lord, Lord Beecham, made a plea to the Liberal Democrats; but I point out to him that at the other end of the Palace the Bill has the support of the Liberal Democrats. It is a coalition Bill, not just a Conservative Bill, and the coalition has supported it thoroughly.

We should look at this extremely carefully and consider whether this relatively small adjustment to judicial review—which is valued, and will continue—is not the right thing to do in the present circumstances and for the future of our country. It is in the public, and also the national, interest.