Criminal Justice and Courts Bill

Lord Woolf Excerpts

Tuesday 9th December 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I support Motion B1 in the name of my noble friend Lord Pannick. Noble Lords will know that I have expressed serious concerns about Part 4 at every stage of the Bill, and I remain deeply troubled. I know only too well how much vulnerable people, especially those who are disabled, rely on state services and how catastrophic it is when things go horribly wrong. I feel that in the other place the Lord Chancellor is still peddling the line that judicial review has been hijacked by pressure groups for political campaigning, citing again and again the example of Richard III. If political campaigning includes campaigning for justice and people’s access to justice, then I am very happy to plead guilty; I am one of those campaigners.

The Lord Chancellor also said in the other place that tough times mean tough decisions and tough love. I agree with that, but judicial review is even more critical in times of stress—in tough times—to ensure that the Government do not ride roughshod over their citizens. These reforms must be seen in the context of cuts to legal aid which already hinder access to justice for those at the margins of society, especially disabled people. This is not an issue about lawyers protecting their status or income. I am sorry, but it just is not. Where is the evidence? It is truly about weakening the ability of ordinary vulnerable people to hold public bodies to account and increasing the power of the state.

Clause 64, if not amended, would require judges to refuse judicial review if the outcome would be highly likely to be no different. It would remove their discretion. We need their discretion. The Government want to exclude judicial review for what they call “minor technicalities” —for example, the need for a bit more consultation. So much for due process. Removing judges’ current discretion would allow unlawful or dishonest decisions to go unchecked and public bodies to be let off the hook. It would also dramatically change the role of judges in second guessing what might have been. I cannot understand it. It cannot be right. The amendments made by this House to restore judicial discretion were rejected in the other place. I thank my noble friend Lord Pannick for his Motion and entirely support it. I seriously urge all Members of your Lordships’ House to think beyond the campaigning and those odd cases where it may have been quite ridiculous and to think about the hundreds of very vulnerable people who will need this over the coming years as, I have to tell the House, things are getting really tough for us.

[Lord Woolf (CB)]

My Lords, it is always important to listen to what is said by the noble Baroness, Lady Campbell of Surbiton. She has an insight into these matters that Members of the House who come from a legal background, as I obviously do, do not have personal experience of. It is very apposite that she should have said what she just said. I hope that the House will heed her plea.

Knowing that the noble Lord, Lord Pannick, would have to go to Moscow, I am bound to say that I had prepared for him not to be here, and therefore had prepared a much longer speech than I am going to give. But I would like to add just one or two things. As I am sure your Lordships understand, this is a very important issue. If noble and learned Lords have any ability to assist and advise the House, then it was clear in the earlier stages of the Bill that this was something they thought was wrong. They gave their reasons, and I played a leading part in that. The reason we did so was that we thought it was going to be bad for justice, for the citizens of this country and for the reputation of this country as a leading adherent of the rule of law. Judicial review is all about the rule of law. Every application that has any prospect of succeeding initially has to prove that something happened which the Lord Chancellor and the judges would regard as being unlawful. So if you are refusing relief in this situation, you are doing it with regard to something which has been illegal, or is in a position where there could be illegality.

The second thing to remember is that the procedure for judicial review is an exceptional procedure, designed initially by the judges, but then enacted in what was the Supreme Court Act and is now the Senior Courts Act 1981, in Section 31, which sets out the position as to the jurisdiction of the courts. That section makes it clear that heavy responsibilities are placed upon the judiciary with regard to its operation. The safeguards are there, because they have a very heavy responsibility of holding the balance. The amendment we are now considering is a small one. It is in relation to the first amendment, which I am addressing. As required by the Government, the judge—the word in question is— “must”. As required by the amendment, the word is “may”. The difference between us is “must” and “may”. As you have already heard, in the House of Commons—and I am going to come back to this—the Lord Chancellor misled the House. I have to say that. I am sure the Minister will accept it. He said to it that each of the amendments—

[Lord Faulks]

I am only interrupting to agree absolutely with what the noble and learned Lord said. The Minister has in fact written to say he was in error. The letter has, I believe, been placed in both Houses of Parliament, but there was a mistake and the noble and learned Lord is quite right to draw attention to that.

[Lord Woolf]

I am grateful to the Minister for making that clear. I was not aware that the Lord Chancellor had done so, and I thought it was very regrettable that he should have failed to do so. It is extremely important that the one Member of the lower House who has a statutory responsibility of a particular nature with regard to the rule of law and the administration of justice should have made that mistake, because he dealt very summarily and quickly with the position which was before this House in some detail. We have heard the relevant passages of what he said.

I recall that on, I think, 5 December—I have the reference to it if it is required—the Minister took care to say that there was a convention that the courts, Parliament and Government each respected each other and therefore did not unnecessarily criticise each other. I was well aware of that convention but I would suggest that it is much wider than that. It is a convention that, in respecting the other arms of government, each of them—I include the judiciary here as an arm of government—will not trespass on the other’s area of territory or a different part of the arm unless there are particular reasons for doing so. One can see why that should be so. In the courts, we are very particular indeed not to trespass on the privileges of this House and the other place—and they should be equally sensitive.

Knowing what had been done by this House, which appeared to me at any rate to be so clearly necessary, I read with great care what was said in the lower House. I must say that I was very concerned that the Lord Chancellor in the lower House had indicated the three reasons that noble Lords were told about by the noble Lord, Lord Beecham, when he read the speech, including one that clearly amounted to a reflection on the judiciary. I have heard many protestations that the Lord Chancellor greatly respects the independence of the judiciary. However, when he talked about its difficult task of administering judicial review, as it does, day in and day out—and the task of presiding over judicial review is allocated to earmarked judges, so we can be sure that the matter will be properly considered—he was concerned that it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. That is one of the problems that the Chancellor was concerned about. I would gently suggest to the Lord Chancellor, if he is writing apologies, that that is another matter that certainly calls out for an apology. It is wholly inconsistent with his statutory responsibilities under the Constitutional Reform Act. That is something that, having been said, either persuades the House or does not. However, if the other place was misled as to the background, what is at first sight a very difficult decision to understand is explained. I suggest that, because the matter was not put fairly to the other place, that is another very good reason why the matter should be returned to it.

--- Later in debate ---

[Lord Horam]

That is precisely why, as I understand it, my noble friend is introducing in a later amendment a de minimis clause precisely designed to exempt small communities. When there is a project and neighbours perhaps contribute £100 or £150 each to object to it, that would be entirely legitimate and I would be wholly in favour of it. That would not be stopped by this precisely because the Government have recognised that point and in a later amendment are introducing a de minimis clause.

[Lord Woolf]

That is not correct on the first amendment. There is no qualification being introduced by the Government.