Criminal Justice and Courts Bill

Lord Woolf Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Woolf (CB)]

My Lords, when I was a relatively young judge, a long time ago, and I had to travel on judicial business, it was suggested by the then Lord Chancellor’s Department that I should travel under a nom de plume for my safety. It was suggested that Mr Sheep would be an appropriate name. I am afraid that I have reluctantly come to the conclusion that, as regards the rule of law, the Lord Chancellor, Mr Grayling, is showing signs of becoming a wolf, so far as clothing is concerned, rather than a Lord Chancellor. The judiciary, I fear, may be the sheep. I hope that he is not doing this deliberately. I believe that he is sincere in his many protestations that he is seeking to fulfil his oath and his special statutory responsibilities, but he has to be judged by his actions, to some of which I am about to refer, as well as his words.

Of course, if the Minister were able to drop Part 4 from the Bill, I could compete—just—with the noble Lord, Lord Black, but there is no sign of that yet. I should make it clear that there are aspects of the Bill that I welcome. There are others about which I have reservations, but it is Parts 4 and 5 that I am really concerned about. They have to be considered against the role of judicial review in our judicial system. I therefore disclose my joint editorship of De Smith’s Judicial Review and Zamir Woolf on declaratory relief. Both volumes make it clear why what is being proposed is contrary to the rule of law. It has been suggested that what is proposed would undermine confidence in the judges and that it might be inspired for that purpose. Again, I hope that that is not the case. However, that might be understood if I explain judicial review in a little more detail than has happened hitherto. I have had a unique opportunity to be involved in the procedure.

The procedures—not the task of a judge scrutinising the Acts or the Executive—go back to 1978, when I had just become a High Court judge after being the “Treasury Devil”, as my noble and learned friend Lord Brown was subsequently. Chief Justice Widgery gave me, together with others, the task of devising a new procedure of judicial review. A handful of nominated judges, of whom I was one, were given the responsibility of hearing these cases in accord with the new procedure. Judging by the number of cases heard, it was a great success. As Lord Widgery said, if you provide a motorway, the public will use it. The old procedure did have advantages until it was swamped. It provided protection for the Executive as well as the public, but a new procedure was desperately needed. The advantages for the public were that judicial review was a means by which their rights could be vindicated, but there was also protection for the Executive. This was due primarily to the requirement for leave to bring prerogative writs, which was adopted into judicial review, and to its discretionary nature, which gave judges powers to mould the procedure so that it would fit the needs of different cases.

The procedure was expeditious because it did away with the need for oral evidence; a case could be dealt with on the papers. Discovery was usually unnecessary because at every stage the procedure gives judges a wide discretion. That is needed. The judge can tailor the procedure to meet the case. It is a remedy of last resort and it cannot be used if there is another alternative. If an application serves no purpose, it is dismissed at the outset. It has been admired by many jurisdictions, but not widely adopted because a requirement of leave would be regarded by many of them as being unconstitutional. In these respects, judicial review has always been tilted against the citizen in a way that other litigation is not. This was done deliberately because of the recognition of the need to protect the Executive. After all, it is the Government’s job to govern.

I have no doubt that if judicial review had not been such a success, there would have been a much stronger movement in this country for an entrenched constitution. It is the discretion of the judges which means that judicial review is at the very heart of the rule of law in this country. This does not mean that the procedure cannot be amended. Of course it can, and it has been amended regularly over the years, including amendments for which I should take some responsibility, and others for which the noble and learned Lord, Lord Brown, should take responsibility. However, it means that if you are going to interfere with the procedure, you must be sure that you understand the danger of the unintended consequences that could result from your actions.

I draw attention here to what has recently happened to legal aid for judicial review, which we have already heard about. If the Government had understood judicial review, they could not possibly have brought in the changes to judicial review legal aid that they have. It is a procedure that is designed to be used by lawyers; it is not one that is designed to be dealt with by individuals acting in person. I fear that judicial review will be less efficient and more expensive because of the action the Government have taken in regard to the provision of legal aid.

I come to the proposals set out in the Bill. They interfere with the ability of a judge to provide, so far as is practicable, a level playing field. So far as it is practicable, the needs of the Executive and of the public are served. There are conflicts, and it is therefore essential that judges should hold the ring. It is quite impossible to anticipate what the cases that come before the courts will require, but the procedure is both wide and flexible. I find it very difficult to understand what possible reason there is that is capable of being substantiated to justify what is set out in Part 4 of the Bill. I fear that it is due to ignorance. That is not an excuse, but it underlines the importance of the need to understand what you are doing. Changes are being made with regard to cuts in legal aid because it is now appreciated that they will not work. I hope that there will be second thoughts on Part 4.

I turn briefly to the statutory provisions. Clause 64 states that the judge “must” refuse leave. That is wholly inconsistent with the requirements of discretion. The present law uses “may”, and there is a world of difference. Under Clause 64, information on financial resources has to be provided by applicants. That is a totally novel idea. As far as I am aware, in no other area is such an imposition put on an application for judicial review. It is just unacceptable. It is a barrier that is out of accord with the rule of law.

Clauses 66 and 67 deal with costs where a party intervenes. Sometimes, but not in many cases, it is very useful for there to be interveners. Under the provisions here, you will not be able to receive any assistance from interveners.

Clauses 68 and 69 deal with capping the liability of an unsuccessful litigant to pay costs. These provisions have been explained very ably by the noble Lord, Lord Pannick, and others. Again, it is an effort by the judges to obtain a level playing field. It is known that applications for judicial review that should be heard in the public interest will simply not be heard and will not come before the courts, to the disadvantage of the public, if litigants have to pay costs they cannot afford. The courts look into the matter and put a restriction on the level of costs for which a litigant is liable so that they have confidence to move forward. However, to do that after the permission stage is pointless because it will never get to that stage. I am at a loss to understand how that could have been suggested.

One of the reasons that has been put forward as a justification for the provisions to which I have referred is that too many cases are going to judicial review. I have to tell the Minister that the number of cases is due largely to incompetence on the part of the Executive and other public bodies. If they did their job properly, there would be no need for judicial review. One of the great virtues of judicial review is that it sets standards. Public servants have to realise that they cannot take short cuts. There was a time, when I was directly involved in these matters, when the standards of the government legal service were exemplary. I am afraid that those standards have dropped through lack of resources and because, unfortunately, civil servants are moved too frequently. In the old Lord Chancellor’s Department, they would remain for the duration of their career. That may not be appropriate for other departments, but it had considerable virtue in the Lord Chancellor’s Department.

I suggest that there is really only one action that the Government can properly take in this case. They should take Part 4 away and look at it again. It should cease to be part of the Bill. If it remains, it will be a blot on the reputation of this Government in terms of their commitment to the rule of law. They should realise that. They should realise that these provisions have been strongly criticised by the judiciary and in this House. Part 4 really is not something that should grace the statute book.

--- Later in debate ---

[Lord Faulks]

My answer to that is that the hypothetical Mr Justice Beecham on a busy list is told that there might be an intervention of one sort. He may not be able to anticipate the level of the intervention that is then forthcoming in terms of its size and the number of others who intervene. The noble Lord scowls, but I am endeavouring to answer his question so perhaps he should not do so. Then, in due course, a hearing takes place by which time an enormous amount of material can be provided and the scope of the case can expand. This is not an evil, but it ought to be controlled. It is difficult without continuity of the judges involved in this to control it in the way that it should be.

[Lord Woolf]

Does the Minister accept that it is very important to look at the situation again with regard to these matters of management after the burden of immigration and asylum cases has been removed from High Court judges? They were struggling to keep abreast of those cases and they were deprived of the time that they should now have to look after the proper management of these cases.

[Lord Faulks]

I absolutely understand what the noble and learned Lord is saying about that. Such was the volume of their work that it may have been difficult to make the decisions that having more time available would have allowed them to make. I take that point. As I have indicated, the Government are listening on the question of interveners. There is merit behind the Government’s provision and we are looking for the best way of reflecting that in any amendment that finally finds its way on to the statute book.

[Lord Woolf]

I make one further point, if the Minister will be patient—I apologise for interrupting him again. Are these matters not best dealt with by discussions through the usual channels between the Ministry of Justice and the judiciary, rather than by going to litigation, which removes the judge’s discretion? I urge the Minister to think about whether this could be achieved in that way.

[Lord Faulks]

I am grateful for that advice and, if I may, will perhaps respond no further at this stage.

The information about financial resources is also a matter that will be probed in some detail, although time does not permit me to go into a detailed response on that now. I have heard the arguments that have been raised, and there will no doubt be profitable scrutiny of those provisions.

Judicial review is important but it is not a vase that would be caused to crack by simply touching it. We need to look carefully at the remedy but, none the less, it is one where change should be made.

I said at the outset that I could not cover everything. I have covered, I hope, some of the points that have been made and I look forward to dealing with them all in Committee—if, of course, your Lordships are prepared to give this matter a Second Reading. I conclude my speech by asking the House to give the Bill a Second Reading.