Civil Legal Aid

Robert Neill Excerpts

Thursday 15th October 2015 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

I beg to move,

That this House has considered the Eighth Report from the Justice Committee, Session 2014-15, on impact of changes to civil legal aid under part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, HC 311, and the Government Response, Cm 9096.

I am delighted to have secured this debate on the operation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO as it is often called. I welcome the Under-Secretary of State for Justice to his place. We now commence our discussion of the second of the Justice Committee’s important reports that we are considering today.

I was prepared to give these reforms of legal aid a fair wind when they were introduced, but I also have concerns about them, as I think the Committee does. I do not say that because the objective of saving money is not important and, indeed, a significant imperative. I sympathise with the predicament of the Minister and of his predecessors; having been a Minister in an unprotected Department myself, I am very conscious that the financial circumstances that the previous Government inherited were dire, and changes had to be made and economies found. I accept that entirely.

Nevertheless, I and the rest of the Committee are concerned that the reforms may have had some unintended consequences, which perhaps we can now sensibly revisit. I was not a member of the Committee at the time the report was produced, but reading through it, a number of the concerns expressed chimed with my own experience as a constituency MP and, for what it is worth, my experience at the Bar. Although I no longer practise at the Bar, I still keep in touch with those who do.

Perhaps we can deal with some of the main issues that were highlighted in the report, and I look forward to hearing my hon. Friend the Minister’s response. I say that because, once again, I detect in both his comments and those of the Secretary of State a willingness to be open-minded about revisiting situations where it can be shown that there are perhaps better, more nuanced and more effective ways of obtaining the objective that we all want to achieve—having a legal aid system that concentrates resource where it is needed and that helps those who are in genuine need, but that does not encourage unmeritorious litigation. I think that we all share that view.

The Committee raised several issues on which I am interested in hearing my hon. Friend the Minister’s comments. First, there was a concern that the reforms, in a sense, were undoubtedly financially driven. There is nothing wrong with that in itself; it was a necessity at the time. Both the then permanent secretary and my hon. Friend’s predecessor as Minister were frank and fair about that to the Committee; savings needed to be made, and made quickly. However, that meant that no research could be undertaken about the impact of the reforms. Now, we are about a year on and although, frankly, it is unusual to conduct a Select Committee inquiry on reforms after only about a year, we are now able to see some of the impacts and I hope that gives us a chance to revisit some of the issues.

The position, of course, is that the MOJ is unprotected. The Committee was concerned that, although it may not have been intended, in practice the reforms introduced in April 2013 may well have begun to impede access to justice. If that is the case, we need to be prepared to accept it, and we should revisit the issues.

There were four objectives that the Government perfectly reasonably set themselves: to discourage unnecessary and adversarial litigation at public expense; to target legal aid at those who need it most; to make significant savings in the cost of the scheme; and to deliver overall better value for money for the taxpayer. There is nothing wrong with any of those objectives, but the evidence that the Committee received suggested that at least three of them have not been successfully achieved. That is why we need to be prepared to look at them again.

Access to justice is fundamental to a system based on the rule of law, and it is therefore important that any changes we make to the ability of the citizen to access proper legal advice are based upon objective evidence. That is the first and primary concern.

In terms of a saving, the National Audit Office concluded that the Government had exceeded their savings target by £32 million, because they were not funding as many cases as was predicted. Many Members will have people come to their constituency surgeries with debt issues, and in debt cases the shortfall was in the region of 85%. That indicates to me that the projections were pretty much based on back-of-an-envelope calculations and may not have had a great deal of research behind them. I am happy to be corrected if that is not the case. Given the speed at which it was acknowledged that that was happening, I can understand why that might be the case, but perhaps that is all the more reason to look again at the matter, if that is what is happening.

I am happy to see an underspend when it is genuine, but if it is an underspend because people who ought to be entitled to legal advice and support are not getting it, that is a failure in the system, and we need to find out precisely why that is so. One of the Committee’s concerns was that there was a significant lack of public information on accessing legal aid, and I have found that in my surgeries. In a comparatively prosperous part of suburban London, I have a lot of constituents coming to me who are unaware of how best to access legal aid and what their rights are. I suspect that the situation may be very much worse in other, more socially challenged parts of the country. We urgently need to revisit that issue.

The suggestion that people are simply moving to pro bono is not good enough. The pro bono work done by members from both sides of the profession is very important, but at the end of the day that is not a substitute for proper advice. That needs to be addressed, and I look forward to hearing what the Minister says on that.

Secondly, we have the operation of the exceptional cases funding scheme, which is an important part of the legal aid system. It was specifically and properly designed to ensure that any changes did not put us in breach of our obligations under the European convention or the European Union, and that is right and proper. The then Lord Chancellor described the scheme as a “safety net” on Second Reading of the Legal Aid, Sentencing and Punishment of Offenders Bill. I have no problem with a safety net, but we need to see how effective its operation has been. The evidence to the Committee on that raised concerns for us.

I appreciate things may have moved on—I am sure the Minister can update us if they have—but at the time of the Committee’s report, 7.2% of applications for ECF were granted. When the usual risk assessments and impact assessments were carried out for the legislation, the estimate was for that figure to be between 53% and 74%. I know from when I was a Minister that impact assessments are sometimes not entirely borne out in practice, but we are talking about a massive difference. When the figure is about one tenth of the top end of the impact assessment estimate, that indicates to me that something is going seriously awry. Either the impact assessment was very badly off indeed or the operation of the scheme has borne down much more heavily on deserving cases than Ministers ever intended. Some 60% of the grants that were made were for family representation at inquests, and that is good. I had a meeting recently with Inquest, which is an important and valuable body that does hard work in that field. Representation in that area is critical, but what about the rest of the significant shortfall? We need to examine that a little more.

We found—this is worth reciting—some exceptional cases where applications under the ECF were refused. They are exceptional cases; that is the whole point. An illiterate woman with learning, hearing and speech difficulties was facing an application that would affect her contact with her children. That was not regarded as suitable for exceptional cases funding, and that is difficult for many of us to appreciate. The judge in one case told us of a woman with modest learning difficulties who was unable to deal with representations from the lawyer on the other side. She is now facing possibly not seeing her child again. That troubled me in particular, because that coincides with my conversations with district and circuit judges and practitioners who operate in this field.

Anyone who goes to their county court will be aware of such issues, which raise a fundamental equality of arms argument. The other side is very often the local authority, which is represented by solicitor or counsel. Against that is someone who may not be able on their own to deal adequately with the process. To say that that is not an exceptional circumstance would be an unfair consequence of the scheme, and that sort of thing should not happen again in future.

I will give one further example. A destitute blind man with profound learning difficulties lacked the litigation capacity, so the official solicitor made an application on his behalf. Initially, that was rejected, and it had to go to judicial review. We should not be having to do that. That is clearly where the operation of the system, rather than the intention of Ministers, was at fault, but it means that we need to bear down carefully on how these cases are processed in the first place. I do not want a legitimate objective of efficiency and saving to get a bad name because of how it is carried out in practice.

Against that background, the Committee concluded that the low number of grants and some of those details meant that the scheme was not acting as the robust safety net that was intended. The risk of miscarriage of justice is real in some of those cases, and we should not allow such things to happen as a consequence of the reforms. We are concerned that so far we have heard no evidence of the Ministry investigating the significant disparity between the predicted number of grants—the 53% to 74% estimate—and the actuality of less than 8%. Will the Minister say what steps have been taken to investigate that enormous disparity? What steps are being taken to ensure that the scheme operates in a more equitable and just fashion? That is hugely important for the scheme’s credibility.

There has, in fairness, been an improvement in recent months, and I am sure the Minister will update me further. The statistics for April to June 2015 show an increase, with grants made to just over one third of all applicants. That is partly because Ministers reviewed the guidelines, and that was right and proper, but it required a review and decision by the Court of Appeal to make that happen. Ministers acted promptly on the basis of that decision, and I give them credit for that, but one third is still way short of the bottom end of the benchmark of 50%. We need more detail on what is being done to ensure that the percentage becomes more realistically near the estimate.

The number of applications remains low, and I would like to know what more can be done on that. The Committee’s inquiry involved some 35 oral witnesses over a period of months and some 70 pieces of written evidence. It is a not insubstantial piece of work that was undertaken by my colleagues who were on the Committee at the time. One reason that the Committee found for the low number of applications was the length of time that it takes to complete the form. That is not insignificant. I can remember sitting in the cells as a practitioner, completing the legal aid form before we went up on the first remand hearing. The form has gone well beyond that now, and the truth is that lawyers cannot claim the time for completing the form.

[Mr Graham Brady in the Chair]

I welcome you to the Chair, Mr Brady, as always. I am not here to make the case on behalf of lawyers, but completing the form is generally beyond the capacity of many lay people, particularly those with any difficulties. They need help to do it and the solicitor will not be remunerated for doing it. Many do it out of their professional sense of duty and obligation, and they are right to do so, but the form is an impediment. In many areas of Government, we are successfully making forms simpler and putting things into plain English. If we are able to make forms simpler in a raft of areas, including planning applications, local government matters and court forms, we ought to be able to do it for the application forms for these matters. What are the Government going to do on that?

A separate issue that causes concern relates to legal aid in family law cases, particularly in what is sometimes termed the domestic violence gateway. Happily, I never practised in that field, but I know that it is one of the most stressful that a lawyer, judge or litigant can encounter. The intention was—I do not doubt its goodness—that legal aid would be available where a litigant can show evidence of abuse within the past two years, with an exception where there is clear evidence of a conviction arising from domestic violence. That is the easy bit. We were concerned by the evidence to our inquiry on the operation of that need, in the absence of a conviction, to show evidence of domestic abuse from within the past two years. We found that some 39% of women who contacted a domestic violence charity about abuse did not have one of the prescribed forms of evidence. That leads us to conclude that the prescribed forms of evidence are too rigid and that there ought to be greater nuance and discretion around that.

Also, as anyone who has dealt with such matters would know, many people struggle with the two-year time limit, because family law cases have often dragged on for years. Relationships that can be abusive, often with as much emotional and psychological pressure as physical pressure, are all part of a picture that builds up over time. In such a relationship, where there may be children and it is difficult for the person to walk away, the strict adherence to a two-year limit can be artificial, and perhaps the guidelines do not coincide with the reality of life as many of us know it from our surgeries, and certainly as many experienced practitioners know it. I hope we can look at that issue again.

The Committee recommended that the Legal Aid Agency be allowed discretion to grant funding where, although the facts might not immediately fit the criteria, the victim of abuse would be materially disadvantaged by having to face the alleged perpetrator of the violence in court. We would not allow that in criminal proceedings, and we should not get into such situations in family proceedings, either. I hope the Minister will give us more details on that. I doubt it would increase the spend. The numbers are not great, but the potential injustice is very great, so I hope we can revisit that issue.

I am sorry that the Government rejected our recommendation. I ask the Minister, on behalf of the Committee, to think again. It is not good enough to say it is a catch-all clause and will lead to large amounts of litigation. I am sure it is possible to draft a sensible form of discretion that is not a blank cheque, but goes further to reflect reality than the current arrangements. We are a year on now. On the basis of the open-minded approach that the Secretary of State and his team are taking, now is a good time to revisit it in the light of experience and perhaps seek evidence from the practitioners and judges who hear such cases as to what might sensibly be put into the form. I hope the Government will think again about that.

The third issue that we raised, which again coincides with my own experience independently of the report, is sometimes called “sustainability and advice deserts”. There are parts of this country where it is very difficult now to find a lawyer to take on a civil legal aid case. Again, if in comparatively prosperous Bromley it is hard to find a solicitor to take on legally aided family work, it is a lot worse in many other parts of the country, never mind in rural areas where the question of simple physical access to a suitable solicitor can be significant. This is classically the area where pieces of research were to be published in 2015, but we have not yet seen the fruits of that research. Perhaps the Minister can tell us when it will be made public, because I have no doubt that the Committee will wish to revisit some of the considerations in the light of that.

The fourth area of concern stems from the increase in litigants in person. The contention at the time—I was prepared to give it a fair wind—was that there would be behavioural change through the removal of legal aid so that fewer people would choose to go to court to resolve their problems. I am not sure the evidence bears that out. I do not want to be an amateur psychologist, but perhaps the motives that lead people to go to court are not of a purely transactional nature. Sometimes, particularly in the most difficult cases, there are pressures that go beyond the ordinary straightforward business decision that we might make as to whether we litigated over a contractual matter, for example. This is not that sort of case. Very often there are other deep pressures that play upon people, which we may not have taken fully on board.

Also, I do not think we have done enough to promote the alternative of mediation, which I shall come to in a moment. On re-reading, I felt there was a finger in the wind approach to the assessment about behavioural change. The wind does not seem to be demonstrating that that is happening in the way that we would wish. Certainly the anecdotal evidence that we heard from people before the Committee, and others, was that there had been a significant increase in litigants in person. There is not a systematic means of collating that information; perhaps there should be. Even in the family courts where some figures are available, the accuracy and their significance was debatable. If we are to have such policy change we ought to know, and it should not be too difficult to work out. If litigants in person and those who are represented are logged, it should not be too difficult to pull the figures together so that we know better where we stand.

The National Audit Office was concerned that the increase in litigants in person in the family courts had cost the family court system an additional £3.4 million. I was disturbed at our evidence hearing on Tuesday to hear a senior official of the Department suggesting that there was no impact. Anyone who talks to anyone who sits in the county courts would say otherwise. There is an impact. We all know that litigants in person often take longer to present their case, which consumes court time and also affects soliciting as the costs run up on the other side, so it is in nobody’s interest in the long term to save money under one head of the justice system, but increase it on the courts budget, which is itself hard-pressed, on the other. Perhaps we need more evidence and a willingness to revisit that, too.

Moreover, often the increase in litigants in person is of people with real difficulties in coping with the system. We have moved on from a situation where the litigant in person was a fairly articulate person who chose not to employ a solicitor or a barrister—not something I would ever encourage, of course—because that was a sensible decision and they were able to deal with a straightforward case on its own merits. We now often deal with people coming before the courts with significant educational and communication difficulties and dealing with complex cases.

[Karl Turner (Kingston upon Hull East) (Lab)]

I want to make a serious point about what the hon. Gentleman has just said. The advice to litigants who propose to represent themselves is based on the fact that it is difficult for them to be objective. They are not in a position to sit back and look at the entire thing, and that often causes great delays going down the wrong road.

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[Robert Neill]

The hon. Gentleman is absolutely right. That coincides with my own experience. Early and prompt access to legal advice can give an overall saving in costs to the system as well as producing a better outcome in terms of justice. I could not agree with him more. It is potentially a false saving and we should be wary of going down that route. I hope that we can have an update on the Government’s research and findings.

It is perfectly fair to say that the Government relied on the additional grant to fund personal support units in the courts. That is useful, but patchy. In some of the county courts that I have visited, there was limited personal support available. I had an instance of someone who was simply trying to fill out the form being told that they could not be helped at the local county court, but had to go to the royal courts of justice. They went to the royal courts of justice and got an out-of-date form, so they had to make two trips. That is not achieving the objective that the Government want, so we need to have an update on how the work is coming on.

Some reliance was also placed on the use of McKenzie friends and the unbundling of legal services. Unbundling can have its role, but my limited experience as a civil practitioner caused me deep concern about the use of McKenzie friends. The lack of objectivity that the hon. Member for Kingston upon Hull East (Karl Turner) referred to applies to McKenzie friends, too. I can certainly think of one case that was needlessly dragged out and the client sent in an entirely wrong direction, ultimately to their own considerable cost, as a result of an unregulated and ill-informed McKenzie friend, so I do not think they are a proper substitute. Such cases ought to be the exception rather than the rule. It is unfortunate that the Government rejected without any explanation the Committee’s recommendation on consulting on regulating McKenzie friends, or at least reviewing the whole operation of that type of quasi-advocate.

One of my two final points link to the question of a lack of alternative. The Government rightly have a commitment to mediation. We have the mediation pledge that successive Governments have signed up to. Increasing the use of mediation was an objective of the Government’s reforms. The estimate was that the number of mediation assessments in family law alone would increase by 9,000, and that was budgeted for. That was all well and good, but the evidence that the Committee received showed that the number of mediations fell by 17,000, or about 56%—it more than halved. The National Audit Office concluded that the Ministry of Justice had a “limited understanding” of why people go to court. The assumption that people would take up mediation was not adequately evidenced. In somewhat the same way as with legal aid, there is a lack of understanding of what mediation is available, how it is best accessed and how it is resourced.

My hon. Friend the Member for Henley (John Howell), who was present for the earlier debate, is a member of the Justice Committee, and he has recently set up an all-party group on alternative dispute resolution. That is a worthy cause, and I hope that several hon. Members will take an interest in it, because there is a lot more we can do to resolve a raft of issues in a non-adversarial fashion. Not enough is being done on that, and the Government need to be much more proactive. I would be interested to know what they intend to do to work out why there was such a disparity between the assessments and the actual uptake. I would also be interested to know what work is being done as part of the initiative they rightly introduced with Sir David Norgrove’s work on the family mediation taskforce. The taskforce is a step in the right direction, and we welcome it, but there are other areas where much more work can be done to increase the take-up of mediation. Although there has been an improvement, take-up is still about half the 2012-13 figure, and it is important to have some explanation of that.

The Government’s fourth objective was value for money in the system. The difficulty is that we cannot really quantify that at the moment, because there is no evidence regarding knock-on costs elsewhere in the system. The Committee thought—again, this coincides with my experience—that early intervention is often a cost saver. One witness described it as a fence at the top of the cliff, rather than an ambulance at the bottom, and there is a lot of common sense in that. Sensible early intervention saves time, saves money and saves injustice being done to parties. I hope the Ministry will look again at that.

The Committee recommended establishing a review of the reforms’ knock-on costs, but the Ministry rejected that on the basis that the Act would be reviewed between three and five years after implementation and that there had been no complaints. That rather misses the point, because there is already evidence of knock-on costs and of the reforms not working as planned. If we want them to bite and to be genuinely sustainable, waiting three years is quite a long time. That is why the Committee revisited them after one year. I hope the Minister will be able to say that the Government will move more swiftly to review the knock-on costs.

The Committee raised a number of issues. I wish the reforms a fair wind. However, I, as a loyal supporter of the Government, have concerns, as does the Committee, on a cross-party basis. It is right to take those concerns on board, because we need to look at them seriously. Having dealt with some of the immediate economic pressures that existed previously, it may be possible for us to revisit this issue and to adopt a more nuanced approach to making savings. Indeed, we may recognise other areas in the legal aid and criminal justice system where savings can sensibly be made. However, the ability to access justice in a fair way is critical to the equality of arms and to the system’s integrity. None of us would want that to be undermined—I know the Minister would not—and that is why the Committee raised the issues it did in its report. I look forward to the Minister’s response.

--- Later in debate ---

[Mr Raab]

No. As the Chair of the Select Committee pointed out, we are talking about behavioural conduct—human beings in very difficult situations. Sometimes their lives might be chaotic or difficult, or they might be under pressing conditions. I am not sure that we can say precisely why it has happened, because there could be a variety of reasons. The fact is that there is now a new litigants in person support strategy in place, led by the advice, voluntary and pro bono sector, which builds on domestic and international advice and evidence. Progress has been made, with increased provision of face-to-face, phone and online support.

It is not right to claim that increasing numbers of litigants in person have created knock-on costs that undermine savings from legal aid reform. The National Audit Office looked at the matter very closely and reported that the additional costs of the changes are relatively small compared with the gross figures—we are looking at around £3.4 million a year, compared with the scale of the civil and family legal aid savings achieved, which the NAO estimated at around £300 million a year. The suggestion about knock-on costs is therefore just not right.

Encouraging greater use of mediation has been a key plank of our wider reforms to the justice system, and it is germane here. Mediation can a be quicker, cheaper and less stressful means of dispute settlement than protracted litigation. It is right that we try to keep a whole range of disputes outside of the courts. As I said earlier, the justice system is there for citizens, not just lawyers. Mediation also plays a role in reducing conflict and helping the parties to communicate better with each other.

Admittedly, the volume of individuals diverted from court into family mediation was not as expected following the reforms, but family relations are difficult to predict, particularly on a societal scale. Nevertheless, we acted quickly to address matters when it became clear that the behavioural shift was not being achieved to the degree that had been hoped for and estimated, although it was only an estimate. The Family Mediation Task Force was established in January 2014 to respond to the situation, and we accepted many of its recommendations.

[Robert Neill]

I understand the point the Minister is making, but, perhaps precisely because it is difficult to predict these things, would he accept that it is not realistic to wait three to five years for a review? Would he be prepared to review the situation in this coming year, in light of that very unpredictability?

[Mr Raab]

I say to my hon. Friend that, in fairness, it can be argued both ways. One could argue that we ought to have a look now because of some fluidity in the figures, or one could say, “Hold on, shall we see if it settles down and we get a slightly bigger picture? Otherwise we’ll only end up having a second review or implementing reforms based on an initial review without having the big picture.”

[Robert Neill]

Again, I understand what the Minister says, but will he also bear in mind that there is not only the issue of the unpredictability that is acknowledged on all sides, but the fact that there is a significant underspend? If there is a significant underspend, which is quantifiable, that tends to indicate fairly strongly that some cases that should be getting legal aid are not, even on the estimates that were made.

[Mr Raab]

That is a fair point, but I am not sure whether that alone would justify bringing forward the review. We want to gauge the long-term direction of the reforms, but I take on board my hon. Friend’s point, which he made perfectly reasonably.

The actions taken as a result of the Family Mediation Task Force’s recommendations include the mediation information and assessment meeting and the first session of mediation for both participants, where one participant is eligible for legal aid. The number of publicly funded mediation starts have now increased for five consecutive quarters and are at their highest volume since the quarter April to June 2013. We acknowledge that the volumes are not where we would like them to be, but we are working on it. While the figures bed down and we tweak the system, we acknowledge that it has not been perfect or particularly easy to estimate with any great precision, but we are seeing significant and substantial improvements. Given the trajectory we are now seeing, it is not right to rubbish this aspect of the reforms.

We have also worked to increase awareness of legal aid and the Civil Legal Advice service on the Government web pages. There is a new, enhanced “Check if you can get legal aid” digital tool available, which provides interactive information to help individuals to assess their eligibility for legal aid. The service has been designed and tailored around the needs of applicants following extensive user testing—it has not just been put up there on a whim. A new communications strategy will be launched this autumn to increase the awareness of our partners, stakeholders and their front-line advice providers, on the availability of legal aid and the Civil Legal Advice service through the new digital tool.

Domestic violence is undoubtedly one of the most important dimensions of the reforms and their impact. I assume it goes without saying that domestic violence and abuse appals everyone present, as well as everyone across the House and across society. That is why it is a priority for the Government, and why we retained legal aid for protective injunctions, such as non-molestation orders. On top of that, in private family law matters—cases concerning child arrangements and financial matters—funding might be available for those who would be disadvantaged by facing their abuser in court. That is an important innovation.

Of course, evidence is required to ensure that the correct cases attract funding, but we have listened to and responded to specific concerns. Following an early review of the system, we made changes to make evidence easier to obtain. Since we intervened, the number of grants in such cases has risen quarter on quarter and by 25% over the past year. We will keep that under review and we will keep responding to the evidence, because that is the responsible thing to do.

I would like to touch briefly on the proposed residence test, which is also important. It is also the subject of litigation that is before the Court of Appeal today, I think, so I cannot comment on the detail. Nevertheless, I want to make it clear that the Government believe, as a matter of principle, that individuals should have a strong connection to this country in order to benefit from our civil legal aid scheme. We believe that the test we have proposed—with important exceptions for vulnerable groups—amounts to an approach that is fair and appropriate.

I want to pick up on some of the points that were made in the previous speeches. The Chair of the Select Committee referred to the estimates of the spend; we need to be honest that they were estimates. The scheme is demand-led, so it is difficult to make estimations with great precision, but, when needed, legal advice will be available. We will be conducting a post-implementation review. He may argue that it should take place sooner rather than later, but there are arguments both ways. We should not have a review too quickly before the reforms bed down; otherwise, we risk not seeing what the full impact and implications are, and we will get only a partial view.

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[Robert Neill]

I am very grateful to the Minister for the careful and considered way in which he dealt with this debate, having picked up what under different circumstances we would call a late return. I understand the constraints, and, as I hope I made clear, I am certainly not against making savings within the system. I will take the Minister at his word when he says that there is a need for objective evidence. We will continue to press the Government, because that objective evidence needs to be quantified sooner rather than later. We need to look at the knock-on costs, which I do not think have been adequately taken into account.

I welcome the expert advice that has been taken on McKenzie friends. The Committee will want to press the Government for a timetable on that, but we need not do so today because it is a small, simple and relatively cost-neutral change to the system, which will be of benefit. I hope that, given that the Minister accepts the need for objective evidence, he recognises that that must also apply to a quantification of the impacts, which we have not seen. We must deal with why the underspend arises at the level it does. That is the fundamental issue we raised, and it has still not been fully addressed.

I am grateful for the Minister’s response, but the Select Committee will inevitably need to return to this issue. It is important to understand why there is an underspend so that we can ensure that the proper advice and support gets to the people who need it, which is an objective that I know Members on both sides of the House share.

Question put and agreed to.

Resolved,

That this House has considered the Eighth Report from the Justice Committee, Session 2014-15, on impact of changes to civil legal aid under part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, HC 311, and the Government Response, CM 9096.

Saudi Penal System

Robert Neill Excerpts

Tuesday 13th October 2015 Commons Chamber

[Michael Gove]

I thank the hon. Gentleman for raising these serious issues and for the appropriately sombre and serious way in which he couched his questions. First, this Government take very seriously questions of human rights, and in particular the obligation to protect the human rights of British citizens abroad. That is why the Under-Secretary of State for Foreign and Commonwealth Affairs, my hon. Friend the Member for Bournemouth East (Mr Ellwood), who has responsibility for the middle east, has been talking to Mr Andree’s family, and it is also why the Government have been interceding at the highest level in all three of the cases that the hon. Gentleman raises.

It is important that that sensitive and diplomatic work is carried on in circumstances that ensure that we can influence not just the Saudi Government, but other Governments, in a way that allows them to make progress in a manner consistent with ensuring that our case can be made effectively. That is why I believe that the actions of the Minister for the middle east—and indeed those of the Foreign Secretary and the diplomatic service—in ensuring that human rights considerations can be carried forward have been right and wise.

It is also important to bear in mind that there is security co-operation between Britain and Saudi Arabia, which has, as the Prime Minister and others have pointed out, saved British lives in the past. We would never compromise our commitment to human rights, but we must also recognise that it is in the interests of the most important human right of all—the right to live in safety and security—that we should continue with necessary security co-operation with the Saudi and other Governments.

The hon. Gentleman asks why no letter of reply was written to the Leader of the Opposition. I can only apologise for any delay in writing to him, and I hope that today’s statement goes some way to raising the concerns that he understandably raised in his party conference speech and in correspondence. More broadly, I want to assure the hon. Gentleman and the House that the whole focus of the Ministry of Justice will be on maintaining the rule of law, upholding human rights and making sure that our citizens are protected effectively with a justice system in which all can take pride and have confidence.

[Robert Neill (Bromley and Chislehurst) (Con)]

The Lord Chancellor is to be congratulated on his decision. I and fellow members of the Justice Committee welcome it warmly. It reinforces Britain’s status on justice and human rights matters. It also proportionately and sensibly continues the necessary work that we need to do on security matters with Saudi Arabia. My right hon. Friend has got the balance right, which some Opposition Members did not do when they were in office.

[Michael Gove]

I am grateful to the Chairman of the Select Committee for making that point. Governments always have to balance the vital importance of upholding human rights with necessary security considerations, and I am grateful to my hon. Friend for the confidence he places in the Government’s decision in this case.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 8th September 2015 Commons Chamber

[Michael Gove]

The hon. Lady is absolutely right to say that the transforming rehabilitation programme needs to be scrutinised very closely. I have had the benefit of talking to the trade unions that represent not just Sodexo employees but employees from across probation, and they have raised a number of genuine concerns, which I hope we can meet. More broadly, the opportunity to appoint a new chief inspector of probation, and indeed a new chief inspector of prisons, arises—the closing date for applications is this Friday. The current incumbents of both posts have done an excellent job, but it is really important that we have high-quality people who will hold to account the organisations responsible for the fate of offenders and ex-offenders.

[Robert Neill (Bromley and Chislehurst) (Con)]

I welcome the appointment of Dame Sally and her review, and the emphasis that the Secretary of State placed upon rehabilitation in prison when he appeared before the Select Committee on Justice. Will he ensure not only that Dame Sally’s work is linked in with the work done by Lord Harris of Haringey in his excellent report on the philosophy, in effect, of rehabilitation in prisons, but that we look at the expertise of not only the Prison Service, but those outside it in dealing with the raft of multiple issues that these offenders suffer?

[Michael Gove]

I absolutely agree. Lord Harris’s report was a sobering reminder of the problems we face in our prison estate in managing some very vulnerable people who engage in self-harm and, in some cases, suicide. The recommendations that he made are receiving proper consideration in our Department. More broadly, the point that the Chair of the Select Committee makes about engaging outside organisations is at the heart of the transforming rehabilitation programme. The extension of new powers to community rehabilitation companies, which my predecessor introduced, will increasingly bear fruit in the months to come.

Human Rights Act

Robert Neill Excerpts

Tuesday 30th June 2015 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to serve under your chairmanship, Mr Betts. I welcome the Minister to his place in what is the Justice Department’s first debate in Westminster Hall.

At the risk of offending both sides, may I suggest that we need to be a bit less theological? I have much sympathy for the points made by the right hon. Member for Orkney and Shetland (Mr Carmichael) in opening the debate, and by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who is a distinguished lawyer. However, I suspect that the truth is somewhere in the middle.

There were human rights protections before the Human Rights Act came into force. The United Kingdom was a signatory to the European convention, and it is worth observing that although Sir David Maxwell Fyfe, in his subsequent career, was not noted for being on the liberal wing of the Conservative party, he none the less thought that the convention was a good and desirable thing. There were protections in the convention that the British courts took account of. It is fair to say that there were also sometimes practical issues about access and implementation, and we should not lose sight of that. The thought, therefore, that the Human Rights Act is a sort of holy grail is probably misleading, and we should not be afraid to think of looking at it again and reforming it. Equally, we should not assume that the convention is a permanent intrusion on the rights of British courts, because that would be wrong too. Let us try to find a way through the middle.

I serve on the Council of Europe’s Parliamentary Assembly and legal affairs committee. Perhaps rather horrifyingly to some people, I also serve on a committee that appoints the judges to the European Court—the idea that a committee of politicians appoints judges may seem odd to us, and that is perhaps an issue we have to look at. The quality of the current Court is, frankly, variable: we have some very good people, and we have some people whose independence does not come from the tradition that we are used to, if I can put it that way. On the other hand, the United Kingdom generally does not have an issue in terms of being at variance with the Strasbourg Court—we have one of the highest rates of compliance with its judgments—so, again, a bit of perspective might be required.

It is perhaps ironic that the Human Rights Act did not seek to create a binding precedent, but the approach taken by our domestic judiciary has frequently got fairly close to that. That is not an issue that withdrawal from the convention, of itself, would address, so we have to be realistic about what can be achieved. In any event, Strasbourg judgments would be regarded as being at least of persuasive value in arguments before our Supreme Court. Simply repealing the Act will not, therefore, make some of the controversy go away, and we have to be realistic about what can be achieved.

On the other hand, bizarre consequences sometimes stem from the Act’s operation, and we perhaps need to look carefully at that. I do not take the view that that would be a signal that we have turned our back on human rights. Britain’s compliance with the convention is rather better than, for example, Russia’s—I do not think we have invaded any of our neighbours recently—so let us put our disagreements with the convention into a bit of perspective.

I hope the Minister will give us a little more assistance on how we go forward. We are committed to a consultation, which is right. In fairness, the Government have committed themselves to a much more significant consultation than that which happened before the Human Rights Act. I would like to know more details of the consultation’s timetable and what form the consultation will take.

[Mr Grieve]

Does my hon. Friend agree that there is one thing we need to look at? In the past, where we have found difficulties, we have legislated in separate legislation—we did that with the Immigration Act 2014. Changing the text of the Human Rights Act may not be the best course of action. If there are areas of difficulty, we can see whether there is separate legislation that is still compatible with the convention that we can introduce.

[Robert Neill]

My right hon. and learned Friend makes a very fair point. I hope the Government will include that as part of the consultation. Some of the things that cause offence to many of our constituents might be remedied more easily in a more appropriate fashion. That is an important point.

The Government are committed to basing a British Bill of Rights on the convention, but we need a little more detail about what “basing” means. For example, are there any rights in the convention that it would not be proposed to include in the Bill? That is critical, because people would be concerned about a diminution of protections. On the other hand, are there areas where the current protections might be enhanced? We need that spelled out at an early stage.

What is the timetable? What is the proposed scope and level of detail of the prelegislative scrutiny? The Justice Committee, which I chair, will be most anxious to be involved in that scrutiny, but other parts of the House will also rightly have to have an input. We also need carefully to address the impact across the whole United Kingdom, because the United Kingdom was a signatory to the convention, and the Human Rights Act was a United Kingdom piece of legislation. It is important that we reflect on all those matters.

I am not perhaps as pessimistic about the prospects for constructive change as my right hon. and learned Friend. Perhaps that is because I am a West Ham supporter, so optimism must come naturally to me—something that you, as a Sheffield Wednesday supporter, will understand very well, Mr Betts.

[Victoria Prentis (Banbury) (Con)]

I am glad my right hon. and learned Friend is a optimist—he may need to be in the present circumstances. One subject we may be able to address in making any changes is extraterritoriality, under article 1, particularly with regard to the military. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) may have touched on that when he talked about the possibility of other legislation being the way forward.

[Robert Neill]

I am grateful to my hon. Friend for that promotion, which is unexpected and undeserved on both counts. I always look forward to the future with optimism as far as those two matters are concerned. Extraterritoriality is an important issue. It has exercised those involved in a number of recent Court judgments, and it is precisely the sort of area where we might find a proportionate and sensible way forward.

I hope we will engage with the profession on these issues, because there is a great deal of knowledge and understanding about this issue. We tend to regard what happens in the Strasbourg Court as a bit of a sideshow, and that would be a mistake, whatever side of the argument we are on.

[Sadiq Khan]

I congratulate the hon. Gentleman on his election as Chair of the Select Committee, and I wish him well. He talked about potential reform of the Human Rights Act. Does he envisage, and is he optimistic about, there being additional rights, or does he think the Government intend to take away rights that are in the Act?

[Robert Neill]

That is the question the Government need to answer. The phrase “based on the convention” is important. I do not say that every bit of the convention’s wording is absolutely perfect in modern terms, but I think most of us would say that we want the principles that underpin the convention to be incorporated in any proposals. For what it is worth, my early urging to the Government is that the closer they stick to the convention’s wording in anything incorporated into British law, the better, because that would give us great clarity and security. Then we must look at the point raised by my right hon. and learned Friend the Member for Beaconsfield and my hon. Friend the Member for Banbury (Victoria Prentis) about the unintended consequences that were not always seen through in the Act, to do with extraterritoriality and related matters. I hope we will get assurances from the Minister on that point.

[Mr Clive Betts (in the Chair)]

I am reducing the time for speeches to four minutes, to try to get everyone in.

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[Jim Shannon]

Obviously I would not agree with that. We certainly do not adhere to or support the Belfast agreement. We have no affinity with it whatsoever—I will speak about that later, if I can.

Whereas the Human Rights Act in principle was a good thing, once lawyers became involved it changed. A researcher in my office has a BA in law and I understand that she and I agree about this. I sometimes feel when I hear of European judgements that the status of our own judiciary is perpetually challenged by cases in courts where some of those presiding have questionable experience and make questionable rulings. How often do we hear of a European ruling and ask, “How can this be?”? Many is the time I ask this, and others do as well. The ruling on the Abu Qatada case has been mentioned, and it has been revealed that seven out of the 11 top judges at the Court have little or no judicial experience. Our British judges have to go through all the years of professional experience before they get to that position, yet some of the other judges making those decisions do not have the necessary experience or qualifications. How can we accept judicial rulings by those who are not in a position to do their job? That is one of my major reasons for opposing the enforcement of the Human Rights Act over our own law and rulings.

[Robert Neill]

Will the hon. Gentleman give way?

[Jim Shannon]

Mr Betts, I am conscious that others want to speak, and I want to give them the chance.

Four-hundred and twenty-five foreign national prisoners won their appeals against deportation

“primarily on the grounds of Article 8”.

I have some concerns about article 8; perhaps the Minister will give us his thoughts about that.

In response to those who say that any amendment of the Act would be a breach of the Belfast agreement, my answer is short and clear—I am sure that the hon. Member for South Down (Ms Ritchie) will listen carefully to this. The DUP did not support the Belfast agreement and has no affinity with it whatsoever. In fact, it has long argued that the United Kingdom should have a Bill of Rights that recognises and respects the diversity of the devolved arrangements across the country. The more pressing challenges that face the devolved institutions in Northern Ireland relate to the £2 million per week penalties being incurred because Sinn Fein has reneged on the Stormont Castle agreement—an agreement, incidentally, that the party of the hon. Member for South Down has adhered to as well. Yet she tells us off for not supporting the Act, when she and her party have not acted on what they signed up to in the Stormont Castle agreement, depriving us of £2 million that could be used to employ more nurses and teachers.

The DUP is fully committed to creating a society in which people are safe, secure and protected. We are also working to tilt the balance away from the criminals and towards the innocent victims of crime. That is where our focus will be. For too long people have felt as though the forces of law and order are not fully on their side. We are working to change that. Whether the hindrance lies at a local, national or European level, we want it tackled. It is for that reason that the DUP and I firmly believe that the Human Rights Act cannot continue as it is.

Criminal Justice and Courts Bill

Robert Neill Excerpts

Monday 1st December 2014 Commons Chamber

[Chris Grayling]

Indeed. I am genuinely baffled as to why the Opposition are so set against many of these reforms when many of their predecessors as shadow Ministers or in government raised many of the same concerns. I will challenge them over one or two of the issues later, because I find their position inexplicable.

Whoever wins the general election will have to take some very difficult decisions in the next Parliament. Those decisions are not ones that any of us would wish to have to take, any more than we in government wanted to take some of the difficult decisions that we have faced in this Parliament, but tough times mean tough decisions—decisions in the interests of this country. And yet, whichever party is in government after next May will face a wave of pressure groups trying to use judicial review to delay decisions, to avoid spending reductions, and to generate publicity for their own cause.

If a group can find a clever enough lawyer, almost any Government decision can be judicially reviewed, and very many are, not necessarily on the basis of specific breaches of specific laws, but far too often on a loose argument that something was not quite right with the consultation paper, that there should have been a bit more consultation, or that a tough decision seen in isolation was irrational. Without undermining the essential core of judicial review, we need to restore common sense to the way in which the judicial review system works, and that is what we are working to do.

[Robert Neill (Bromley and Chislehurst) (Con)]

Does my right hon. Friend agree with the important point made by Lord Horam that there is a difference between a balance to protect the rights of the citizen in specific cases and a situation where, sadly, judicial review can be moved through pressure groups to what is effectively a review of the merits, rather than of the procedures, often contrary to the wishes of the communities that are most directly affected?

[Chris Grayling]

My hon. Friend is right. Judicial review has become a vehicle that is used as one of the tools to campaign, to delay and to challenge, not necessarily in the interests of the broader society or the broader community, but because it provides a vehicle to make a point or to delay something for financial reasons. It makes no sense to have a system that can be abused in the way it often is.

We listened carefully to the debate in the House of Lords, and as hon. Members will see from the amendment paper, we have suggested some modifications to ensure that we avoid unintended consequences of what we are working to do. I hope that the House will say clearly today that having agreed those safeguards, we want to see this package of reforms pass into law.

--- Later in debate ---

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

Lords amendments 97 to 102 were carried in the other place to ensure that courts maintained their discretion in determining whether to grant a judicial review by making use of the “highly likely” test. Groups such as Justice have rightly concluded that if these amendments are defeated, it will change the role of judges by inviting them to second-guess how decisions might otherwise have been taken. From his experience, the hon. and learned Member for Torridge and West Devon (Mr Cox) has detailed some very potent arguments why the amendments should be upheld. Parliament should never seek to undermine the courts’ discretion; courts should be free to determine whether to apply the “no difference” test, and to legislate otherwise would impede the integrity of our legal system. I therefore support these amendments.

Lords amendments 105 and 106 would allow the courts to consider the circumstances of individual cases in determining whether to grant an application for judicial review, even in cases where third-party information is not readily available. In clause 66, the Government have tried to find yet another means of limiting the circumstances where applications for judicial review can be heard. The amendments seek to ensure that applications can be heard in cases where third-party information is not easily available.

Judicial review is often the only means by which individuals can hold the Executive responsible for wrong -doing, yet the Government are trying to shut down that avenue for redress. The Joint Committee on Human Rights has said it sees no evidence to support the Government’s reforms, and neither does Justice, Liberty, JustRights, Human Rights Watch, the Howard League, Redress, Inquest, Mencap, Amnesty International—the list goes on. Can anyone report which groups actually support the Government in these changes? [Hon. Members: “The Whips.”] Yes, the Whips.

On clause 67, Lords amendment 107 would maintain courts’ discretion over whether to order an intervener to pay the costs of relevant parties and vice versa. As drafted, the Bill would compel the court to order interveners to pay such costs, other than in exceptional circumstances, as we have heard from the hon. and learned Member for Torridge and West Devon. The provisions in clause 67 are among the most disturbing in the Bill. Unamended, the clause would ensure that charitable organisations and individuals with expertise could no longer enrich the opinion of the courts by intervening in cases where their expertise would be of use because they could not justify the risk to their trustees, funders or members of supporting litigation. As the noble Lord Carlile asked in the other place:

“How could trustees reasonably agree to support an intervention when it could result in losing tens of thousands of pounds or more in costs, jeopardising, in some cases, the existence of small charities?”—[Official Report, House of Lords, 30 June 2014; Vol. 754, c. 1607.]

Yet the plans would still allow Departments and corporations with huge funds to intervene and hence play a pivotal part in the development of public law.

I ask the House to reconsider the Government’s proposals in the context of the various and—I am trying to avoid vitriol—crippling reforms to access to justice in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As a result of the significant cuts in that Act, more individuals will be looking to charitable organisations for support in getting justice. It seems to me that clause 67 will take away this last resort. I am afraid the Government seem intent on restricting access to justice so that only those with the least to lose can gain redress. Why do they think it necessary to pursue this agenda, which will throw the baby out with the bathwater, despite the perceived misuses of the law relating to judicial review? The hon. and learned Gentleman, a far more experienced lawyer than me, has referred to the time-honoured practice of judicial review—the Wednesbury principles and so on—and the practices in place to ensure that Departments act reasonably in all circumstances. Why should we not uphold the individual’s rights to ensure that Departments act reasonably?

In conclusion, Justice said:

“Punitive and disproportionate, these measures are designed to deter any organisation with limited funds acting as an intervener. In practice, this means that – even in important cases with a constitutional impact which reaches far beyond the immediate interests of the parties - the court will no longer benefit from expert advice and information provided from cash-poor and experience rich charities and NGOs.”

I think that says it all. As we heard earlier, senior judges themselves are on the record as saying that the courts are enriched by the interventions of these people, who know exactly what they are talking about.

[Robert Neill]

I commend to this House the words of the former Lord Chancellor, the noble Lord Mackay of Clashfern, in the other House. He supported the Bill and set out a sensible balance, as did the Minister, Lord Faulks, himself no slouch as a Minister. It is right that those who come to the Queen’s courts in a public hearing should not shield their true identity or who truly funds them. The Government are right to insist on that point.

It is legitimate for Parliament to set the parameters within which the undoubtedly important system of judicial review works. That is what the Bill seeks to do: it strives to strike a fair balance. I hope the House will support the proposals of my right hon. Friend the Lord Chancellor. It is absolutely critical that we have a comprehensible and credible system of judicial review. I want to see that as much as anyone else, but the mission creep of some areas of judicial review, very often for politically motivated purposes, undermines the true purpose of judicial review as a legitimate and important remedy for the individual. I believe that the Government’s proposal, despite the rather hyperbolic—

Criminal Justice and Courts Bill

Robert Neill Excerpts

Tuesday 17th June 2014 Commons Chamber

[Sarah Champion]

I wish to speak broadly to amendments 23 to 32 to clause 55 in part 4 of the Bill, and to the “highly likely” test on judicial review. I also wish to share my thoughts on the specific proposals for judicial review, based on the recent experiences of the Liverpool City and South Yorkshire regions, which directly affects my constituents. As a precursor, I should say that I accept that the number of judicial review cases has risen in recent years, but I am not certain that the proposed revision of judicial review would give a fair outcome to those parties seeking review, or tackle the reasons why instances of judicial review have increased.

In particular, I wish to address the idea that the likely outcome would be assessed as part of the process leading to the granting of a judicial review, rather than the legality of the process leading to the said outcome. On 7 February the South Yorkshire and Liverpool regions won a joint High Court action that ruled that cuts in European funding were unlawful. Lawyers bringing that action argued that the significant reduction in funding of 65% was disproportionate compared with other areas.

Evidence presented to the Court at the time showed that Ministers allocated €150 million less to Liverpool City region, and almost €90 million less to South Yorkshire, than they had estimated their share to be. Obviously, that could not be fair. It meant that over the next seven years, funding to Liverpool City region worked out at €147 per head, compared with €380 in the previous funding round from 2007 to 2013. A judicial review case was filed in September 2013, and the process, rather than the outcome, was deemed out of order. The judge requested the High Court to order the Government to adjust their allocation of funding from Europe because of the flawed calculation method used to distribute €10 billion from the European regional development and European social funds. Had that decision not been challenged, the funding that would have been allocated to Liverpool City region and South Yorkshire would have been spread across other regions.

Under the judicial review process as it stands, South Yorkshire and Liverpool were right to file for judicial review, as they believed that the process by which the decision was made was flawed. Logic would suggest that if the process behind the decision was flawed, the likelihood is that the decision itself would be flawed. Unsurprisingly, the judge ordered the Government to reconsider the funding arrangement.

The difficulty is that we will never know what would have happened if the Government’s proposals on judicial review had been in place at the time of that specific case. I suspect that the Government, already having a series of funding arrangements in mind, would have granted the same levels of funding to South Yorkshire and Liverpool, regardless of the process under which the funding allocation was decided. If, at the application stage, it was deemed that South Yorkshire and Liverpool would have been likely to receive the same amount of funding, their application would have been taken no further. To be clear: in South Yorkshire and Liverpool, I suspect that the likely outcome would have been assessed as the same in this case, regardless of the flawed process. Therefore, at the beginning of this process, the case may have been unable to proceed—a case in which 3.6 million people living in those regions would have not been able to access €10 billion-worth of funding.

Such considerations—those predictions of likely outcomes—will now become law under the Government’s plans. I have no doubt that in some areas judicial reviews may be seen as wasteful, but at the same time I strongly believe that the case I have referred to would not have made it to court under the new proposals.

Was the process flawed? Yes. Is the outcome likely to be similar? Perhaps, yes. Does that mean that the people of the Liverpool City and South Yorkshire regions should not have been afforded the opportunity to challenge? No. On the slim chance that the outcome would change for them, taking the case to the courts would have seen the two regions immeasurably better off. It is only right that the people of those regions be allowed to challenge that decision.

A faulty process often leads to a flawed decision, and even if the outcome might be the same, we need to consider those rare cases in which the outcome is predicted to stay the same so judicial review is not granted, but the outcome is then prevented from being different. In their current form, these plans would prevent case law from forming based on the one in 100 cases in which the outcome might have been predicted to stay the same but in fact did not stay the same. We are taking the power of the formation of case law away from judges, and we are instead putting the power of decision making into the hands of people less experienced in making such decisions.

I implore the Minister to look at the case of the Liverpool City and South Yorkshire regions as an example of why judicial review should be granted not on the basis of the likely outcome, but on the basis of the process of decision-making. We must allow flawed processes to be challenged, so that for the cases in which an outcome is different, the people involved are granted that outcome, rather than having it snatched away from them before it goes to court.

[Robert Neill (Bromley and Chislehurst) (Con)]

I thank the Minister for the constructive way in which he has engaged with me and others on the planning amendments. I welcome the stance that the Government have taken on these matters and I know that welcome is shared by the legal profession and planning professionals. The Minister is right to say that these are not necessarily the most headline catching of measures in the Bill, but they are important and valuable because they are consistent with the approach that the Government have adopted—in this instance, also supported by the Opposition, I am glad to say—towards the rationalisation of the planning process and the speeding up of the process of development.

These measures are significant, because a successful and smooth planning process, including the judicial element of potential challenges, is critical, not only to the legal process but to environmental protection and the economy. One of the problems that has been encountered in the past is that some of the duplications and delays in the system were a disincentive to bringing forward the sort of development that we all want to see. This is an opportunity to rationalise the process, and I am glad that the Government have taken it.

I also thank the hon. Member for Hammersmith (Mr Slaughter) for his approach in Committee, as well as the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Grantham and Stamford (Nick Boles). I also thank officials in the Ministry of Justice and the Department for Communities and Local Government—some of whom are in earshot—who took my Lazarus-like reappearance on the scene of planning law in good grace and engaged most constructively with me. I also want to thank Richard Harwood QC and other members of the planning and environment Bar who did a lot of work in the drafting of the detail of the amendments.

My hon. Friend the Minister has given me the bulk of the cherry that I asked for in Committee, but the Government have not been able to make progress on a couple of issues. I invite him to be mindful of the need to keep a careful eye on the operation of the planning court, because some matters may be picked up through the civil procedure rules and may provide a constructive means of taking forward further reforms.

[Mr John Redwood (Wokingham) (Con)]

Before my hon. Friend’s fascinating speech terminates too soon, I wonder how much difference he thinks the proposals will make to smoothing planning processes and getting sensible development under way.

[Robert Neill]

My right hon. Friend takes a particular interest in these matters, and we are ad idem—as lawyers would say—on the subject. I think we can achieve a significant saving in time. For example, it will no longer be necessary to bring parallel applications for judicial review and costs, and that will save time and costs, because it is clearly a disincentive to have to bring two separate sets of legal proceedings. Even if they are later consolidated for the purpose of the hearing, costs are involved.

My right hon. Friend makes the important point that there will be a saving in terms of costs to the litigants—the potential proponent of a scheme and those who might have cause to object—and a hidden opportunity-cost saving to the Courts and Tribunals Service. Even if the hearings are ultimately consolidated, there is an administrative burden on the courts in processing the parallel matters. Significant sums—reckoned to be in the millions of pounds—can be saved. That may not seem like a massive amount in the overall scheme of things, but it will be valuable.

I also hope that the proposals will help to change the culture. That is an important point that my right hon. Friend and I have talked about in the past. Litigants in planning matters will be encouraged to resolve matters at the earliest possible opportunity and bring forward cases that have been sensibly brought together.

The setting up of the planning court has been warmly welcomed by the profession, but it has one concern that my hon. Friend the Minister might take back to the Lord Chancellor—and, through him, to the Lord Chief Justice—about the supply of judicial material, if I may put it that way, for the courts. There are a limited number of experienced judges and deputy judges in planning work. Now that we have this new, improved and streamlined structure, it is important that we have sufficient judicial personnel to man the court to carry out the process adequately. It is a rarefied and specialist sphere, although I regret to say that it is not one that I practised at the Bar—probably to my disbenefit, and certainly to the disbenefit of my bank manager. The pupillage in criminal chambers came through before the pupillage in planning chambers that I had also applied for, so I ended up in the same boat as the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright)—as a criminal practitioner.

One further point on planning may be a deliberate or passing omission. I wish to check with the Minister whether he intends to look, in due course, at the time frame for proceedings under section 113 of the Planning and Compulsory Purchase Act 2004. It would seem logical to try to deal with those matters at the same time, and I hope that it will be possible. That does not appear in the new clause and schedule, which encompass most of the other matters, but perhaps it can be considered in the other place. It relates generally to development plan challenges, which we have not discussed, and I accept that it would raise broader issues, but it may be appropriate to return to the subject at a future point.

The unanimity across the House on planning matters may end when we come to the issue of judicial review. I am afraid that I cannot accept the overblown and overstated arguments made by the Opposition spokesman on that issue. Of course judicial review is important, but it is worth putting it into context. Before I unwisely took the criminal pupillage instead of the planning pupillage, I was a young law student at the London School of Economics in the days of the great John Griffith, who was professor of public law. Judicial review was a virtually unheard-of concept. Although the prerogative orders of mandamus and certiorari go back to the common law, judicial review was scarcely ever used.

It is interesting, and ironic given the stance taken by the Labour party, that the growth of judicial review in its modern form is sometimes dated to the judicial activism of the late Lord Denning at the tail end of the Wilson Government in the ’70s. It was a Labour Attorney-General, the late Sam Silkin, to whom Lord Denning addressed the famous words:

“Be you never so high, the law is above you.”

There were legitimate grounds for extending the jurisdiction. It is ironic, therefore, that the Labour party now seeks to pose itself as the proponent and supporter of unrestricted judicial review. That was certainly not the view of the Labour Government in the 1970s.

None the less, things have moved on. Judicial review is essentially an issue of proportion. I very much doubt that Lord Denning envisaged the concept of judicial review developing from the way he had in mind in that very famous case. There is a real concern—I have seen it as a lawyer, in my time as local government Minister and, before that, as a local councillor—that the growth of judicial review has become an inhibitor to good decision making, rather than, as suggested by the hon. Member for Hammersmith, being a tool to ensure good decision making. I suggest that the reverse has been the case. A number of examples of that can be given.

Let me start at the decision-making level within Government and local authorities. The growth of judicial review has encouraged a culture of risk-aversion in decision taking. All too often, good and honest civil servants and local government officers are restricted in taking what can sometimes be bold courses of action. Ministers can sometimes be counselled against taking bold and radical action because of the risk of judicial review. That harms the governmental process, rather than improving it.

[Mr Slaughter]

I am enjoying all the autobiographical stuff, but I would love to hear why the hon. Gentleman thinks that a remedy that promotes good decision making and careful consideration by civil servants is a bad thing. Should we be having civil servants taking risky and outlandish decisions because they know that they can no longer be challenged? That seems to be what the Bill proposes.

[Robert Neill]

I am sorry to say—perhaps not for the first time—gently, and with the affection of one legal professional to another, that the hon. Gentleman rather misses the point. We all want good decision making and nobody is saying that there is not a role for judicial review. When I listen to some of the rhetoric from the Labour Benches, I am tempted to think that my right hon. Friend the Lord Chancellor is proposing to abolish judicial review. No such thing is proposed and it is nonsense to say so. But there has been a significant degree of mission creep, to use a popular term, in judicial review. It is reasonable to say that that now needs to be rolled back. That is what the Bill seeks to do.

[Julie Hilling (Bolton West) (Lab)]

Does not the hon. Gentleman agree that the real risk here is that those people who are least able to access justice—people with the least means to pay for advice—are the most likely to be squeezed? I hope later to give examples of where judicial review has really helped the little people. The problem with these clauses is that we risk giving ordinary people less access to justice.

--- Later in debate ---

[Robert Neill]

I cannot say that that has been my experience. If we were removing the process of judicial review and challenge, that would be a legitimate criticism. But we are not. To change a threshold around, for example, the “highly likely” test does not exclude a deserving case from seeking remedy. To deal with the issue of interveners does not remove a deserving case from the prospect of remedy through judicial review. If it imposes a degree of discipline in the thinking behind the bringing of such challenges, that is a good thing and we should not apologise for it.

[Julie Hilling]

But the issue is who will pay for the interveners for those people who have least access to finance and justice. Interveners will be allowed but who will foot the bill for people who do not have the means to pay?

[Robert Neill]

With respect to the hon. Lady, it is seldom persons in that category who are the interveners; they are much more likely to be the bringers of the review. I will come to the role of interveners in a moment, but let me finish the point about the way in which there has been mission creep in judicial review and the sometimes damaging effect that that has on the decision-making process.

The situation is a little like what we found with local government finance at one time, when officials tended to play tick the box so that someone qualified for the right number of grants. There is an element of that sometimes in the decision-making process, where decisions are always taken with an eye over the shoulder at the risk of judicial review rather than getting to the merits of the matter. If these clauses help, as I think they will, to move away from that culture, that is a good thing, as it will then encourage imaginative and radical, but always fact-based, decision making. It will always have to be fact-based because, after all, the Wednesbury reasonableness test is unchanged; it remains in any event. There will always be scope for challenge of irrational decisions, or of decisions that are genuinely not based on evidence. But removing the threat of judicial review to the extent that it now hangs over decision makers is sensible and proportionate.

[James Morris (Halesowen and Rowley Regis) (Con)]

My hon. Friend is making a good point about the impact of the threat of judicial review on local authority decision making. It has almost become the expectation before a decision is taken that it is liable to be judicially reviewed, adding a layer of bureaucracy and a length of time to decisions that sometimes need to be taken in a more timely fashion.

[Robert Neill]

I am grateful to my hon. Friend, who leads me neatly on to the next point I wanted to make. It is suggested somehow that this is the state seeking to prevent challenge. Very often, those on the receiving end of unmerited judicial reviews are local authorities—democratically elected bodies who find their decision challenged by some vested interests. Very often, that vested interest is propped up by an intervener. That is why the proposed changes are legitimate and proportionate. My hon. Friend is quite right. That is an impediment not only in areas such as development and planning matters, but in relation to other forms of decision making such as housing and other types of policy.

[Sarah Champion]

Does the hon. Gentleman agree that good and honourable local authority people sometimes get it wrong and that having relatively straightforward access to judicial review is a good thing?

[Robert Neill]

I am not sure whether you would agree, Mr Speaker. I take the hon. Lady’s point, but I do not think that she follows it through logically. It comes back to this: the basic tests of Wednesbury reasonableness remain. The opportunity for judicial review remains and putting some balance or check in the process to say, “Before you intervene, you have to consider the costs” is not unreasonable.

Any decision maker can, of course, get things wrong, which is why we have judicial review. That remains. But equally, it is not unreasonable to say that when a challenge is brought, those who litigate ought to bear in mind the costs of their doing so. I understand the hon. Lady’s points, which she made eloquently in Committee. I have some sympathy with her, but the Bill does not do what she believes it does. I do not believe it undermines the scope for meritorious judicial review. It is not in the interests of anyone that the courts be clogged up with unmeritorious judicial review cases. There is no doubt that there have been a number of those.

On local government, let me suggest two instances of such cases. It is suggested that those who bring judicial review are often the aggrieved small people. That is not always so. When I was a Minister at the Department for Communities and Local Government, my right hon. Friend the Secretary of State and I suffered at the hands of CALA Homes in a very famous judicial review decision when we were attempting to carry out the will of the House and, clearly, of the electorate and remove the regional spatial strategies, which were discredited. A judicial review was brought against the Secretary of State and against the democratically elected planning authority, Winchester city council, which had gone through the process of standing up for its residents who did not wish to have a particular piece of land developed. What happened was that judicial review was used by, in effect, a predatory developer. There are many cases around the country where it is the big battalions who will use judicial review against elected local authorities. Redressing the balance is fair in that instance, too.

[Ian Paisley (North Antrim) (DUP)]

I appreciate the hon. Gentleman’s giving way on this point. In Northern Ireland, we have the ludicrous situation whereby one Minister, namely the Attorney-General for Northern Ireland, will take on other Departments to prevent them from implementing decisions that have been taken democratically. Does he agree that we are now in a terrible situation, whereby before a Department takes a decision, it seems to need to have lined up behind it the right person to fight the judicial review, which will inevitably come in any case once the decision is taken?

[Robert Neill]

My hon. Friend is absolutely right. As an ex-Minister, I break no confidence in saying that when decisions are being taken, part of the advice will regularly be about the judicial review risks. Anyone who serves in an English local authority will know that part of the significant conversation nowadays is, “Okay, we think this is the right thing to do. How do we defend it against judicial review? We know, even though we have done the right thing, consistent with our democratic mandates, that a judicial review will be coming.” That cannot be in the public interest.

[Mr Speaker]

Order. It is always a delight to enjoy the free-flowing eloquence of the hon. Gentleman as he develops his tutorial, but may I gently ask him to bear in mind that a number of others wish to speak, notably his right hon. Friend the Member for Wokingham (Mr Redwood) and the Chairman of the Joint Committee on Human Rights, the hon. Member for Aberavon (Dr Francis), and time is not limitless? Although we are savouring the hon. Gentleman’s delights, all good things must eventually come to an end.

[Robert Neill]

I rather suspect, Mr Speaker, that you have anticipated how my ministerial career came to an end as well, delightful though it was at the time. I am happy to draw my remarks to a close, because I know that my right hon. Friend the Member for Wokingham (Mr Redwood) has a great deal of expertise on this matter. I will also welcome the contribution of the hon. Member for Aberavon (Dr Francis), not least because his predecessor was a member of my chambers who led me on a number of cases, including some judicial review matters with which he dealt expertly. [Interruption.] I am sorry to have driven you from the Chair, Mr Speaker.

Let me conclude with these thoughts. The judicial process is important for its checks and balances. That position is not being changed by the Government’s proposals; what they are providing is a reality check on the process of judicial review. On the issue of interveners, if someone chooses to intervene in litigation, they should not do so without being aware of the costs that their intervention can bring. That is what we are seeking to do. It is often the intervener, rather than the initial parties, who takes up the bulk of the time in the case. It is logical for someone who seeks to intervene in a case—no one is obliged to do so, after all—to face the discipline of the potential costs.

[Heather Wheeler (South Derbyshire) (Con)]

My hon. Friend is making an important point. When constituents write to me about planning inquiries and the like, they want to know the true cost, because ultimately, one way or the other, the taxpayer is paying for all this. The facts must be clearly put out there. I thank my hon. Friend for the argument he is proposing.

[Robert Neill]

I am grateful, and that provides a suitable point for me to conclude. The costs apply not just to individual litigants and therefore to companies and local authorities, because the cost to a local authority is ultimately a cost to the taxpayer, and then there is the opportunity cost to the planning system and the court system that comes from bringing needless judicial reviews. There is nothing in the Bill to prevent a meritorious claim from coming forward and being heard, but it provides some checks and balances in the matter—a reminder that the common law does not exist independently of the House. Ultimately, accountability lies here through Parliament. The judiciary has an important role to play in interpreting the will of Parliament.

Occasionally, I look at judgments in judicial review cases and gain the impression that one or two of the senior judiciary have rather concluded that the common law somehow exists in isolation. The development of case law is important, as suggested, but it should happen within the framework set by this democratically accountable House. We need to redress the balance to ensure that while the House is accountable, a democratically elected local authority is the right primary accountable body in its sphere of competence. I thus commend both the planning and the judicial review provisions.

[Dr Hywel Francis (Aberavon) (Lab)]

It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill), not so much for the content of his contribution as for its tone and humour. I am afraid that I will not be able to match his humour. He beat me to the punch by telling us about his friendship and legal partnership with my distinguished predecessor, Lord Morris of Aberavon. I suspect from the tone of the hon. Gentleman’s contribution that he must have learned it at the feet of my predecessor. The general tone of this debate has been very constructive, so I hope the Minister will respond positively to the constructive contributions.

I particularly commend the contributions of my hon. Friend the Member for Rotherham (Sarah Champion) and of the hon. Member for Cambridge (Dr Huppert)—I was about to call him my hon. Friend—who contributed progressively and constructively to the work of my Joint Committee on Human Rights earlier in this Parliament.

I shall propose my own amendments 42 and 44 and speak in support of amendments 24 to 32 and 36, tabled in the names of my hon. Friends the Members for Hammersmith (Mr Slaughter) and for Barnsley Central (Dan Jarvis) and recommended by the Joint Committee on Human Rights, which I chair. Let me remind everyone that the Joint Committee is made up of members of all parties and that the majority of its members are from the coalition parties. When a report from our Committee is unanimous, it means that it was supported by Government Members.

My Committee has done a lot of work on the implications for access to justice of the Government’s proposals to reform both legal aid and judicial review, and we continue to take evidence on these important matters. Earlier this year, we concluded a detailed inquiry into the Government’s judicial review reforms. Our report, which came out in April, pointed out—as did my hon. Friend the Member for Hammersmith in this debate—the crucial importance of judicial review to upholding the rule of law in this country. It is, I believe, one of the fundamentals that seems to be in everyone’s list of “British values”—much discussed of late.

Amendments 42 and 44 were recommended in my Joint Committee’s report. They are necessary to ensure that the Bill does not go too far in curtailing one of the most important developments in recent years, which has increased effective access to judicial review to hold the Government to account. The courts have carefully developed costs capping orders, which are also known as protective costs orders, to ensure that meritorious challenges to the legality of Government action are not prevented by the fear of a crippling bill for costs. In appropriate cases, they remove the disincentive to litigation of the ordinary “winner takes all” costs rules.

Corner House Research, a non-governmental organisation with expertise in countering bribery and corruption, brought judicial review proceedings against the Department of Trade and Industry for not doing enough to counter bribery and corruption through its export credits guarantee scheme. The courts believed that the legal challenge raised important issues of public interest that needed to be decided. The case was, however, brought only because of a costs capping order limiting the costs exposure of this important NGO.

The Government are concerned that the test for providing such costs protection has become increasingly flexible, as a result of which costs capping orders are being granted too frequently. The Lord Chancellor and Secretary of State for Justice said that they seem to have

“become the norm rather than the exception”.

According to his way of thinking, a lot of well-off campaign groups are bringing cases safe in the knowledge that their costs exposure will be kept down by a costs capping order. My Committee looked into this issue in detail and found the Lord Chancellor’s concern to be exaggerated. The senior judiciary, in its response to the consultation, also doubted the Lord Chancellor’s claim. Other than in environmental cases, where a special cost regime applies because of the UK’s EU obligations, the judges’ experience is that the use of costs capping orders is not widespread.

We welcome much of what is in the Bill on costs capping, including the Government’s decision to put costs capping orders on a statutory footing and to enshrine the common law principles into a statutory code. This seemed to my Committee to be a welcome recognition in principle of the importance of costs capping orders as a way to ensure practical and effective access to justice. We also found that the new statutory code in clauses 59 and 60 is a broadly accurate reflection of the principles developed by the courts, and for the most part merely reflects the restrictions on the availability of costs capping orders that are already applied by the courts.

In one very important aspect, however, the Bill includes a restriction that has the potential to limit very severely the practical effectiveness of costs capping orders. Clause 59(3) provides that a costs capping order may be made by the courts

“only if leave to apply for judicial review has been granted.”

The Government’s justification for this restriction is that only cases with merit should benefit from cost capping orders, and the test of whether a case has merit is whether it is granted permission to proceed by the court. In practice, however, this provision seriously undermines the utility of costs capping orders and may lead to meritorious judicial reviews not being brought because the cost risk is too great.

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[Yasmin Qureshi (Bolton South East) (Lab)]

The Government tell us that they want to make changes to the judicial review process because too much money is being spent in court and people are making frivolous, vexatious or irrelevant claims, but the statistics do not bear that out. It is true that there has recently been an increase in the number of judicial review cases, most of which have involved immigration. However, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, immigration cases now go to the upper tribunal to be resolved. In reality, the number of cases dealt with by judicial review is no greater than it was some years ago. I must therefore tell the Government, with all due respect, that the cost-based argument is complete hogwash. Something else is motivating the Government and, in particular, the Secretary of State, who has made the telling comment that judicial review is generally

“a promotional tool for countless Left-wing campaigners.”

In his speech, the hon. Member for Cambridge (Dr Huppert) listed a number of organisations that were not of the “loony leftie” variety. The Government’s motivation has become clear, and I think that it is very sad for our judicial system that they are curtailing the basic right of judicial review for the sake of their own political agenda.

The hon. Member for Bromley and Chislehurst (Robert Neill) seemed to suggest that virtually all judicial review cases were frivolous and a waste of time, and that we did not need the process. He even made what I would describe as the rather irrelevant political point that in the 1970s the Labour Government had not been particularly pro-judicial review. Governments of all complexions make wrong decisions, but that does not mean that 40 years later a political party cannot change its mind about a matter such as judicial review. I know that the hon. Gentleman is a lawyer, although I do not know whether he still practises.

[Robert Neill]

Does the hon. Lady not understand the point that I was making? It is erroneous to suggest, as the hon. Member for Hammersmith (Mr Slaughter) did, that placing a restriction or limitation on judicial review undermines fundamental freedoms, Magna Carta and so forth. In fact, it is a fairly recent innovation in our public and administrative law.

--- Later in debate ---

[Yasmin Qureshi]

Walter Bagehot talked about the fact that in our system we needed the three separate bodies—the Executive, the judiciary and obviously Parliament—and that all three must be strong to be able to act as a check on each other.

The fact that we in Parliament are elected does not mean that we do not make mistakes. In the history of Parliament, some appalling pieces of legislation have been passed which have turned out to be wrong. It is only because we have a strong judiciary and a proper judicial review system that those pieces of legislation have been found to be wrong. It is because of that that ordinary people have been able to get justice—the people of this country, the people we are supposed to be representing.

[Robert Neill]

Does the hon. Lady not accept that in a democracy the remedy for bad legislation is at an election, through removing the legislators? That is democracy.

[Yasmin Qureshi]

rose—

--- Later in debate ---

[Robert Neill]

To have the courts second-guessing the legislature undermines democracy.

[Yasmin Qureshi]

rose—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Both hon. Members cannot be on their feet at the same time. If the hon. Lady gives way to the hon. Gentleman, she must let him make his point before jumping back up. Bob Neill, have you finished?

[Robert Neill]

Yes.

[Yasmin Qureshi]

Although we talk about democracy, bad laws have been created, and we cannot wait five years until the next election for such laws to be changed. I say with respect to the hon. Gentleman that that would be completely wrong. If an election takes place tomorrow and a bad law gets passed, are you really saying our people should have to wait five years and change the Government?

[Yasmin Qureshi]

I entirely agree with that. Those of us who have been practitioners of law—a few such Members are present—will know that since coming into existence judicial review has been revolutionary for our country. We do not have a written constitution, and Lord Woolf has said:

“In our system, without its written constitution embedded in our law so it can’t be changed, judicial review is critical”

and the Ministry of Justice is showing a

“remarkable lack of concern for the precision of the facts”.

You might say, “Well, maybe Lord Woolf has an agenda here because he’s a lawyer and perhaps he wants money to be available,” but I am sure that highly respected individuals such as Lord Dyson and Lord Woolf, who understand the issue about the public purse as well legal matters, would not be saying these things if they did not believe that these parts of the Bill are fundamentally wrong.

In the 21st century, when we have now got a society that is fairer and kinder to its people, it is sad to have a go at people who are challenging the might of the state. Local authorities, institutions and Departments are still more powerful than the individual litigant or even pressure groups. You may not agree with a pressure group’s policy, but they are not as strong as the might of the state, and we should always have equality of arms. That is one of the fundamental principles of our law. You cannot have one side—local authorities and Departments—with all the money at its disposal and the best legal brains available against the ordinary person on the other side who has none of those benefits, or even pressure groups, who often do not have enough money to be able to spend hundreds and thousands of pounds on top barristers. They therefore cannot afford to lose.

We have to have parity of arms, instead of the state effectively using this opportunity to strangulate and stop the individual—the little person—or even the pressure group, many of which represent a group of our people who are interested in an issue. Pressure groups do not exist just for themselves: they are there because a whole lot of people in the country object to something or feel that there is a problem with an issue. They do not have the resources and they are being strangulated, yet the hand of the state is being strengthened.

I am surprised that a Conservative Government are trying to do this, as they have always taken pride in protecting liberties. What you are doing through all the various provisions and the changes being made to the judicial review, however, is effectively preventing the ordinary person from challenging the decision.

We say that judicial review will somehow make civil servants or public officials think, and wonder whether they might be challenged. Well, I think that is right. In a proper democratic system, local authority or state civil servants should be thinking about the effects of their actions. They should not be above the rule of law. They should be thinking about whether everything is right or not.

As a lawyer who has done some judicial review cases in my life and as somebody who worked in the Crown Prosecution Service as an in-house lawyer, I think it is right that a decision made by a prosecutor should be subject to challenge. When I am making my decision on whether a case should or should not proceed, it is right that that should be able to be challenged, because that would make sure I did my job properly as well as holding me to account. That is very important in our system. Civil servants and local authority officials absolutely should have to look over their shoulder to see whether they are making the right decision, because at the end of the day they are paid by the state and they are supposed to represent and govern our country in a proper way. If they are acting properly, professionally and honestly, they have nothing to worry about from judicial review. Only people who are not acting properly should be worried about judicial review.

[Robert Neill]

What would the hon. Lady say to the residents of Wickford near the Dale farm estate whose local council was found by the courts to have acted entirely properly, but removal of a Gypsy Traveller site was delayed for years by the abuse of the judicial review process? What defence does she have for those people?

[Yasmin Qureshi]

I am not going to talk about individual constituents in particular constituencies, and I cannot comment on their issues, but your using that example as a reason to constrain judicial review is not very credible. In doing so, you are detracting from the seriousness and importance of judicial review. By introducing this provision, you are effectively reducing the number of cases in which judicial review can take place. It is very easy to say, “The local authority got involved but the Traveller sites could not be removed and there were delays”, but that is just one small aspect of judicial review. You and I know—

--- Later in debate ---

[James Morris]

Nobody is arguing that there is not an important balance to be struck, taking into account, as others have pointed out, the importance of democratic accountability for decisions taken. Nobody is arguing that judicial review has no role to play in this context, but there is a strong argument to be made about where the culture that has developed is leading. I speak regularly to local authority chief executives, and it is having a very detrimental impact on local authorities’ ability to make long-term decisions.

[Robert Neill]

My hon. Friend is making a very important point. Does he agree that the concern about the growth of judicial review, rather than the concept, is shared by all parties in local government—I have spoken to local authority leaders, of all parties—and by many experienced chief executives and senior officers?

[James Morris]

I agree with my hon. Friend. We need to take measures such as those in the Bill, which I support, to get the balance right in respect of the culture that has developed over the past few years.

As has been mentioned, there is the question of the public perception of what judicial review actually is. As a result of the culture that has built up, there is a public perception that if a judicial review goes ahead, the decision will somehow be overturned. It is felt that the review is to do with the decision rather than with a discussion about the process. For example, a group of residents in my constituency approached me about a judicial review of a fire authority’s decision, which I did not think had been great, to close a local fire station. They raised funds to take the matter to the first stage, but even if they had successfully demonstrated that the authority had not followed due process—I am not a lawyer, but on the face of it there were some grounds for saying so—the likely outcome of their spending something north of £100,000 on a judicial review would have been the authority simply re-presenting the same proposal. That example shows that we must be careful about raising public expectations about what a judicial review can achieve.

Criminal Justice and Courts Bill

Robert Neill Excerpts

Monday 12th May 2014 Commons Chamber

[Jeremy Wright]

My hon. Friend makes an interesting point. He has a good record of campaigning on these issues, in which he takes considerable interest and has significant expertise, and we will certainly consider what he said. The review will allow new ideas such as his to be considered in the context of the sentencing framework.

[Robert Neill (Bromley and Chislehurst) (Con)]

I agree with my hon. Friend that the development of the arguments we have heard in respect of other clauses reinforces the need for a more comprehensive look at the issue. In the light of the reassurance he has given to my hon. Friend the Member for Rochford and Southend East (James Duddridge), will he also ensure that the review looks not only at the basic sentencing powers but at the operation of the penalty points system, which we know is complex and sometimes itself creates incongruities?

[Jeremy Wright]

I think I am in danger of conducting the review this afternoon, but I agree with my hon. Friend, and all these things are worth considering for inclusion in the review. I simply sound this note of caution: if we review everything, we will exceed the proposed time scale and perhaps not deal with the concerns raised earlier by my hon. Friend the Member for Cambridge (Dr Huppert). None the less, I am sure that there is a great deal that can sensibly be considered.

I return to amendment 8 and point out that proposed new section 16C of our provisions already provides for cases in which the single justice proposes to disqualify a driver. The single justice must give the accused an opportunity to make representations about the proposed disqualification. If the offender fails to take up the opportunity to make representations, they may be disqualified in their absence. That is, of course, no different from what may occur under the magistrates court process. At present, offenders are disqualified in their absence when, having been warned about the purpose of the hearing, they do not attend court. When the defendant wishes to make representations, however, and that would include representations about exceptional hardship, the single justice must issue a summons to the defendant requiring them to appear at a traditional magistrates court. Any exceptional hardship plea may therefore be dealt with in open court, and the court would have the opportunity to investigate the defendant’s driving history. The Bill therefore already makes appropriate provision for the situation that the hon. Member for Bolton West is concerned about.

--- Later in debate ---

[Mr Slaughter]

If the Minister waits, all will become clear.

We do not quarrel with the seriousness of any of the matters under discussion on Report. My hon. Friend the Member for Barnsley Central (Dan Jarvis) will raise our concerns about offences against armed forces personnel—matters that we, unlike the Government, flagged up in Committee. This is a sloppy way of making law and nowhere was that more clear than with last week’s announcement that new offences and new sentences for existing offences on some driving matters would be tabled today. At the same time, as the Minister has conceded, the Secretary of State announced that a full review of all driving offences and penalties would be carried out over the next few months.

Let us pause there for a moment. If the Government are reviewing all offences over the next few months, why do they need to change the law for one offence and introduce a brand-new offence in the Bill? I suspect that my curiosity is shared by the Minister, who replied to the debate on 27 January. We heard nine compelling and moving speeches on that day from Members on both sides of the House explaining how their constituents had been victims of dangerous, careless, drunken or disqualified drivers but how the culprits had escaped with what appeared to be lenient penalties. He carefully and courteously, as is his wont, lowered expectations, saying:

“Having emerged blinking into the daylight from the usual channels into my current job, I know better than to commit parliamentary time for any purpose”.

He added sagely:

“It is important for us to consider these matters in the round, and to do so in a way that does not create discrepancies in the sentencing system.”—[Official Report, 27 January 2014; Vol. 574, c. 731.]

Four months later, time has been found to do exactly what the Minister warned against.

The Minister might ask whether that matters if we are moving in the right direction. The groundswell of opinion expressed in that debate and outside the House is that the two-year maximum sentence for causing death by disqualified driving is inadequate, as it leads to an average sentence of about nine months in custody. We agree and we will not oppose the new clause, but is 10 years the correct figure? It is double the maximum for causing death by careless driving, arguably a more serious offence as the quality of driving is an issue. Equally, it seems anomalous to create an offence of causing serious injury by disqualified driving when no equivalent is proposed of causing serious injury by careless driving or even causing serious injury by careless driving while under the influence of drink and drugs—an offence with a maximum sentence of 14 years when it causes death.

Why has causing death by disqualified driving been singled out? As the Minister said, the current offence brackets causing disqualified driving with driving without insurance and driving without a licence. Will causing death by driving in those two circumstances remain punishable with a two-year maximum sentence? I am afraid that this bears all the hallmarks of the Secretary of State’s penchant for plucking new offences out of the air and pushing them forward to show what a tough guy he is. There were only 13 convictions in the last year for which figures are available for all offences of causing death while disqualified, uninsured or without a licence. How many cases will the change in the law affect?

Perhaps the Secretary of State will say that the change is intended as a deterrent to others, but how many disqualified drivers will be put off by the thought that they might kill or cause serious injury? There is no evidence of careless or dangerous driving in their cases, because they would then be charged with those offences. That brings me to new clause 22, tabled in my name and that of my hon. Friend the Member for Barnsley Central, which we believe is a more effective way of tackling the problem that the Secretary of State and the Minister have rightly identified.

More than 7,000 people were convicted of driving while disqualified in 2012, a substantial reduction since 10 years previously but still a great number of people who wilfully defied an order of the court and carried on driving while banned. Our answer is to make the offence of driving while disqualified triable either way, with a maximum penalty of two years’ imprisonment for conviction on indictment, which the Magistrates Association has been calling for for some time. Currently, the maximum penalty for driving while disqualified is six months and it is a summary only offence. Although that might be sufficient for a first or even second-time offender, it does not address the minority of recidivist offenders who have multiple disqualifications on their record and carry on driving oblivious to the courts.

[Robert Neill]

I understand the point the hon. Gentleman is making, although I do not totally agree with it. Limiting the penalty to two years might reflect some aggravation that arises in instances of disqualified driving which give rise to injury. Does he not concede, however, that even if we allow for aggravation in respect of sentencing, a two-year sentence probably would not be enough to reflect justice for an injury that might be life-changing but which stops short of involving the offence of causing death by dangerous driving? The person’s life would be ruined for keeps, which would not be captured adequately by a two-year sentence, as under his proposal—four years might be nearer the mark.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 18th March 2014 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

Does my hon. Friend agree that unmeritorious judicial reviews not only bring the judicial system into public disrepute but are frequently a significant financial burden on democratically elected local authorities, which might find their attempts to carry out the wishes of their electorate frustrated?

[Mr Vara]

That is absolutely the case. Some local authorities are trying to help the economy through projects, only for them to be frustrated by unmeritorious claims. The taxpayer loses out because of the extra costs, the efforts of those who wish the projects to make progress or to have employment in them are stifled and, ultimately, the economy does not recover in the way that it ought to. That is what we are trying to achieve, to put right the consequences of the Opposition’s time in government.

--- Later in debate ---

[Damian Green]

I will, of course, look at that individual case. However, I hope that the hon. Lady and the House will acknowledge that the Government are committed to funding 15 new rape crisis centres; that the 14th and 15th new centres will come on stream this year; and that we have provided an extra £4 million to allow that to happen. Inevitably, there are bids that cannot be met for perfectly valid reasons, but I will take a look at that case.

[Robert Neill (Bromley and Chislehurst) (Con)]

Will my right hon. Friend look again at the adequacy of the terms of reference and working practices of the Office for Judicial Complaints to deal properly with redress in the very rare cases in which our judiciary do not come up to the proper standards of behaviour?

[Chris Grayling]

I am happy to do so. Perhaps my hon. Friend will give me a bit more information on the detail of his concerns. I think that the office does a good job. My experience from my 18 months as Lord Chancellor is that it makes sensible decisions and takes a sensible approach when such issues arise. One hopes that they will not arise often, but I will look at his concerns.

Criminal Justice and Courts Bill

Robert Neill Excerpts

Monday 24th February 2014 Commons Chamber

[Chris Grayling]

Typically, these will be uncontested cases. A contested case in which the defendant wished to plead not guilty would not be dealt with outside the courtroom. These are simple cases in which there is no doubt about the defendant’s guilt because the defendant has pleaded guilty, and which can be dealt with out of court by magistrates, without the formality of a court hearing.

[Robert Neill (Bromley and Chislehurst) (Con)]

Does my right hon. Friend not agree that in most instances not only is the case uncontested, but the defendant does not even turn up, and there is then the rigmarole of a prosecutor reading out the facts to an empty courtroom? In those circumstances, it is obviously sensible to adopt the proposed reform.

[Chris Grayling]

I would say to my hon. Friend, and indeed to the hon. Member for Islington North (Jeremy Corbyn), that if someone wishes to contest a charge, it is probably a good idea for him to turn up in court to do so.

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[Chris Grayling]

We assess carefully each immigration case that comes before the Border Agency and there is then the opportunity to challenge in the courts, but just how many times are we going to give people the right to appeal? There have been many cases, and indeed occasions when our judges have said, “This is not good enough”, where the case has simply been brought as a delaying tactic to stop people being asked to leave the UK—that is in nobody’s interest.

[Robert Neill]

Will my right hon. Friend take on board the fact that, unfortunately, previous interventions have highlighted the error that has crept into many people’s thinking? They believe that rather than being a process of procedural review—an administration of the propriety of decision making—judicial review should be used as a re-run of the merits. That is not what it was ever intended to be.

[Chris Grayling]

My hon. Friend is absolutely right about that, which is one reason why we have sought to ensure that cases where there is no material likelihood of a different decision having been taken cannot simply be brought on a technicality relating to the process. If a minor error of procedure has been made, the decision should not be able to be delayed for months and months when there is no realistic prospect of a different decision being reached.

The Government have consulted extensively on this package of reform, and we did so with an open mind. Concerns were raised, both practical and principled, about proposals to reform “standing”, which determines who can bring a judicial review, and I have decided not to pursue those. Judicial review must continue in its role as a check on the powers that be. It is an important tool for our society which allows people to challenge genuinely wrong decisions by public authorities. These reforms do not change that, and I would not want them to do so. They make it more difficult for pressure groups simply to use judicial review as a campaigning tool and for those with a financial vested interest—for example, one developer judicially reviewing another—to delay a process of investment, to derail a competitor or to derail a major project that is strategically and economically in the interests of this country.

The Bill contains a vital set of proposals as we work to deliver a justice system in which people can have confidence—a justice system that deals robustly with those who repeatedly commit crimes. The Bill toughens sentencing for some of the most serious crimes and ensures that serious offenders will be released only if they can show that they are no longer a threat to society. The Bill requires offenders to contribute to the cost of the criminal courts, and allows us to test a new approach to youth custody and to reduce the delays and expense involved in unmeritorious judicial reviews. The Bill draws a line under Labour’s soft justice culture, provides hard-working families with greater safety and security in their communities, and removes barriers to economic growth. I commend it to the House.

--- Later in debate ---

[Sadiq Khan]

I do not subscribe to the view that citizens have a role to play only once every five years. They have a role to play in an active democracy between elections as well. That is the difference between the hon. Gentleman’s majoritarian view and mine. The irony is that the Foreign Secretary gets it. If the hon. Gentleman had listened to the Foreign Secretary in the statement on Ukraine and Syria, he would have heard what he had to say. It is a shame that the Justice Secretary and the hon. Gentleman did not listen to what the Foreign Secretary said about the importance of the rule of law.

[Robert Neill]

rose—

[Sadiq Khan]

I shall make some progress, but I shall come back to the hon. Gentleman.

I hold up my hands up as a former Minister and admit that for someone who is part of the Executive the threat of being judicially reviewed can sometimes feel like a nuisance. Judicial review can be a pain for decision makers, but that is the point. It is about making sure that decisions are taken properly, follow due process and are within the laws of the land. If we expect our citizens to abide by the rule of law, the Government should be no different, which means acting lawfully, not scaring off opponents before the game has begun, or imposing huge consequences on the team that loses. To stretch the sporting analogy further, under their proposals, the Government would be playing down a steep slope for the full 90 minutes, defending a much smaller goal than the one into which they would be trying to score. Their opponents would be running uphill for the whole game, and have a much smaller set of goalposts to aim at. That is not fair, and it is not justice.

It is worth noting what is not in the Bill. Despite all the Government’s recent talk about victims, there is nothing about a victims law—what a missed opportunity—which will disappoint not just victims and potential victims but no doubt the hon. Member for Witham (Priti Patel), who has been vocal in her support for the victims law proposed by Labour. Instead, victims and witnesses will have to wait for a Labour Government to serve that law to stop them being ignored and trampled by the justice system. There is also little in the Bill to address the specific problems faced by women, those with mental health problems and ethnic minority communities in our justice system.

I have to congratulate the Lord Chancellor. He has achieved something in his short time in the job that few of his predecessors could ever have dreamed of: he has managed to alienate every part of the justice system. Prison staff are more under pressure and threatened in their day-to-day work environment than ever. Probation staff feel betrayed. They have done all that has been asked of them, then been sold off to the likes of those serial under-performers, G4S, Serco and A4E. Legal professionals are horrified at the erosion of access to justice and the insulation of the powerful from challenge that has happened under the Lord Chancellor’s watch. Charities and community groups are demoralised at the ignorance shown towards the European convention on human rights and the Human Rights Act. Things are so bad that there is even the threat that the legal profession might boycott the Justice Secretary’s planned celebrations for the 800th birthday of Magna Carta next year. What is more, he has managed to deliver the first ever industrial action by barristers.

The Bill is all about trying to create some work for rebellious, bored and troublesome Back Benchers, some of whom we will hear from later. The Bill may well succeed in doing that, but the idea that it will do anything substantive to reduce crime, help victims to be at the centre of the justice system, improve our courts system or keep our communities significantly safer is a joke, a bit like the office of Lord Chancellor has become with this incumbent.

--- Later in debate ---

[Dr Huppert]

No, they do not.

[Robert Neill]

Their vehicle excise duty.

[Philip Davies]

Their vehicle excise duty. I am afraid that the hon. Member for Cambridge (Dr Huppert) has reinforced his reputation for concentrating on the things that are not important, and not concentrating on the things that are.

--- Later in debate ---

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow my hon. Friend the Member for Ealing Central and Acton (Angie Bray), an old colleague on the London Assembly where we attempted, among other things, to scrutinise the Metropolitan Police Authority in its early days. I strongly agree with the sentiments she expressed.

I am delighted to see the shadow Secretary of State, the right hon. Member for Tooting (Sadiq Khan), back in his place. With respect, his was very much a speech of two parts. When I listened to the first part, I thought, “Well, he clearly wants to stand for Mayor of London because he is doing a south London knockabout comic turn.” I was glad that he turned serious in the second part, although I do not agree with all of his analysis. I gently say this to him: keep the day job going because potential Mayors of London are now expected to be various turns, comic or otherwise, from north of the river rather than south. Leaving aside our political disagreement, I say with respect that the one thing that did trouble me—I hope it was perhaps a slip of the tongue—was his saying, as it certainly appeared to a number of Government Members, that judicial review should be capable of challenging primary legislation. I cannot believe that is what he meant to convey.

[Sadiq Khan]

indicated dissent.

[Robert Neill]

Given how the right hon. Gentleman shakes his head, I will take his word on that. I think we all accept that judicial review was not and never should be intended to challenge the will of Parliament. It does, though, have a legitimate role in relation to secondary legislation and the Executive, and I will return to that later. I am grateful that he has clarified his view on that point, which troubled me because it was surprising, if I may put it that way.

I warmly welcome the thrust of the Bill and congratulate my right hon. Friend the Secretary of State on introducing it. I will not touch on all parts of the Bill, but I want to discuss some areas that remind me of my past life—although that may be a dangerous thing to talk about at too much length in this House—and professional experience, namely the 25 years or more that I spent at the criminal Bar. I am delighted with some of the changes to make sentencing more realistic. I do not take the view that sentencing must always be draconian and that all those convicted in the courts are beyond a degree of redemption. That is clearly not the case. It is important, however, that sentencing has the confidence of the public, the victims and the majority law-abiding community. It is also worth remembering that sometimes the families of offenders are themselves victims to a degree. It is very important to have confidence in sentencing, so the greater transparency proposed by the Bill with regard to the amount of time served and the consequences of bad behaviour is a valuable step forward.

The same applies to the use of cautions. I have sympathy with the point made by my hon. Friend the Member for Shipley (Philip Davies) and the hon. Member for Kingston upon Hull East (Karl Turner), who is another former practising barrister and to whom I apologise because I was not present to hear his speech. It degrades the value of cautions to use them for serious offences for which any ordinary, right-thinking member of the public—in other words, to use the famous lawyer’s test, any man or woman on the Clapham omnibus—will conclude that they were never intended to be used. Cautions were intended to be used for trivial matters, so using them for more serious offences degrades their value in those areas where they have a legitimate role. I hope there will be no suggestion that there has been any pressure in terms of targets or resources. The Government have taken a step in the right direction.

A logical step on from that is recognising the importance of making best use, at all levels, of the available judicial resources. Just as it is important to use such resources to prosecute really serious crimes before the court, rather than use cautions, it is entirely sensible for the Bill to free up resources to deal with what are not regulatory, but essentially non-contentious—in so far as anything can be in the criminal justice system—matters. Many of us with experience of the criminal Bar will have been instructed as young, junior advocates on behalf of the prosecution—no doubt happily for us and our fortunately moderate bank balances—to read through and prove a whole list of traffic offences, even in instances of non-appearance. The empty courtroom could have been used for other cases, but time and again we would read out section 9 statements and produce various certificates of conviction that the traffic lights were working properly and heaven knows what, just to prove a case that nobody was arguing about. Removing that anomaly is an important, valuable and major step forward. I will not repeat the point that there are sensible safeguards built into the system for those who want to argue their case.

By way of digression, once upon a time there was—I think there still is—an offence of failing to provide a statutory statement of ownership. In those days, my earnings at the Bar were greatly boosted by being standing counsel to Croydon council and invariably turning up to prosecute such matters without anyone turning up to contest them. That is an extreme example, because sometimes cases got appealed and nobody turned up at the Crown court to prosecute the appeal either. Removing that sort of nonsense from the system has to be in everybody’s interest.

Ensuring that there is an open and publicly accessible record of the system is sensible, because it means that we need not clog up a fully equipped courtroom with witness facilities and other valuable resources that could be used for a contested hearing. It could be done in an anteroom and the press could be provided with access to the results. That is an entirely sensible and proportionate response, for which the Government are to be commended.

A number of the other changes are very useful and sensible. I will not go into the details, but I welcome the changes in relation to rape. Pornographic depiction of rape does seem an obvious matter to deal with—Rape Crisis South London in my constituency has done a lot of work on it—and I am glad that that has been recognised. I think that my hon. Friend the Member for Ealing Central and Acton would agree with me that there may still be gaps in the adequacy of sentencing for other sexual offences, particularly in relation to videos and DVDs of various kinds—we might be able to look at that in due course—but the change is a valuable step forward that we should all welcome.

I am pleased about the arrangements for costs. I was very often instructed to apply for costs against a convicted defendant. That was fine as far as it went—effectively, only the prosecution costs could be awarded, and whatever legal aid contribution was made—but it is legitimate to go further. After all, we are talking about only those who have been convicted. It is currently regarded as a legitimate and proper means of sentencing to give a discount for a guilty plea to reflect, first, remorse; secondly, the potential avoidance of trauma for witnesses; and thirdly, the saving to court time. Those are all legitimate factors, and if we regard the saving of court time as a legitimate factor in the equation for a penalty in the broadest sense, it is not unreasonable to calculate costs more realistically in terms of the totality of court time, rather than just of prosecution costs or an amount towards legal aid. The very sensible change will add to the transparency of the arrangements being put in place.

The change in relation to jurors is valuable. I am particularly pleased about that because my constituent Mr Graham Pound from Bromley specifically raised that matter with me. I received a very sympathetic response from the Lord Chancellor and Secretary of State for Justice, who was of course not able to indicate exactly what he had in mind, but I know that Mr Pound is delighted with the outcome, which reflects reality. Although I accept that there are differences, I have a measure of sympathy with the suggestion that we might go further. My only query with the point made by my hon. Friend the Member for Shipley is that there is a difference between the burden of jury service that we expect someone to undertake, which is generally for a comparatively limited period, and the burden of being a busy member of the bench in a busy magistrates court or of sitting full time as a circuit judge.

In relation to the judiciary—I suspect that such matters could be dealt with by regulation—there might be an advantage in bringing back some recently retired senior circuit judges to sit in the Court of Appeal, as they perhaps did before they retired, while sparing them the burden of presiding over their home courts as resident judges. That might be a very modest first step in maintaining a degree of judicial independence, particularly in the criminal system, because by no means all High Court judges will have the degree of experience of criminal cases at first instance and of regularly sentencing heavy crime that those recently retired circuit judges have. I commend that thought to the Minister as a means of building on the welcome proposals about juries.

I also welcome the changes on the whole question of judicial review. A different part of my experience kicks in on that—as a local councillor and a Minister. I accept the proposition made by the shadow Secretary of State and other Opposition Members that there is a role for judicial review, which can have the salutary effect of concentrating the mind of decision makers and those who advise them. After all, it is not proposed to abolish judicial review, but, equally, it must be approached with a degree of proportion. One difficulty has been a lack of balance and proportion in its use. That is a shame, because there is a risk that a valuable tool, which can be a safeguard for individuals, may become discredited by overuse and exploitation by individuals or groups for what are often seen as partisan, if not party political, means or entirely self-serving ones. The Bill rightly seeks to rectify that.

I am perhaps even older than my hon. Friend the Member for Huntingdon (Mr Djanogly), who talked about being a young Bar student in the ’80s and learning about administrative law. When I did my law exams in the 1970s, judicial review was a very recent concept. It was coming back into existence, thanks largely to Lord Denning. Nowadays, we do not consider him to have been a judge with the most liberal of sentiments, but he was seen as rather radical in those days.

Until the late ’60s and early ’70s, there was virtually no administrative law in this country. It is therefore slightly over-egging the case for judicial review to say, as even some distinguished judges do, that it has been an inherent part of our system since Magna Carta. That is not correct. It has grown up from a root that was in the common law. Through the various prerogative orders, such as mandamus and certiorari, it was constructed by judges into a judicial tool as society and government action became more complex in the ’50s and ’60s. It is a fairly recent feature of our system and it fulfils a valuable role.

Judicial review came into existence because the system needed to be flexible. Perhaps Members will remember Lord Denning telling a former Labour Attorney-General,

“Be you never so high, the law is above you.”

That was in reference to a Labour Government behaving in a peremptory fashion. If the system needed to be flexible at that time, it is equally reasonable to say now, when the industry that has grown up around judicial review has become so oppressive that it has overbalanced the system, that we should pull it back into proportion. That puts what the Secretary of State is seeking to do into its proper context.

Some of the proposals are sensible and straightforward. I do not think that anyone disputes that it is sensible to have the same time limit for a judicial review as for a statutory challenge under the Town and Country Planning Act 1990. Nobody has argued with the reduction in the time limit, because anybody who has dealt with planning matters knows that, particularly now that there has to be so much pre-application disclosure and there can be written representations from objectors and so on, the issues are very well crystallised in people’s minds. I suspect that that is not the most contentious issue.

There are issues with clause 50, although I do not share the criticism of it. I approach it from a slightly different angle. It seems to me that it is not unreasonable to move from the current inevitability test to a test of whether the outcome is likely to have been affected. Ironically, the current inevitability test seems to import something rather like the criminal burden of proof of reasonable doubt—or perhaps an even greater burden of proof—into what is essentially a civil procedure. It is not unreasonable to move to something that is closer to the normal test in civil proceedings of the balance of probabilities.

It is argued that we must act almost punitively to be a constraint on bad decision makers. However, I would have thought that clause 50 contained enough flexibility to provide a more balanced approach, to prevent judicial review from falling into disrepute when somebody wins on a purely technical error by a decision maker that was under no circumstances taken in malice or made negligently, and that would under no circumstances make any difference to the outcome. It is not unreasonable to say that the costs of a judicial review should not be fully provided in those circumstances.

We generally expect much more transparency in decision making in this country. In relation to clause 51, I think that that ought to apply, to a degree, to judicial decision making and to the judicial process generally. Because more and more judicial reviews are, in reality, supported and funded by groups—sometimes lobby groups, sometimes commercial groups that may have an interest—it is legitimate for the taxpayer and law-abiding citizens to have an idea about the source of that funding and, to some degree, the real motive behind the judicial review. Clause 51 is a proportionate means for dealing with that. Similarly, interveners must be aware that a considerably greater cost will occur through a legitimate intervention, especially when—as we have all seen in some cases—the intervener may become the principal driver of the judicial review, and do much more to extend the length of the hearing than the initial parties. Under those circumstances, it is not unreasonable that they should bear the bulk of the risk, since they have driven the bulk of court time as a consequence of the way they pursued their intervention. I would argue that the Bill contains a balanced package on judicial review that should commend itself to the House.

I will not dwell on what might have been in the Bill as I think what it contains is good and valuable. I am, however, a little tempted by the comments of my hon. Friend the Member for Shipley on the accountability of judges. I do not think the Bill is necessarily the right vehicle for that, but we are talking generally about improving the accountability of decision making, and about accountability and transparency within the system. Given that judicial decisions—in judicial review or otherwise —sometimes affect not only large bodies or the state but can affect individuals, there is perhaps an argument to be had about whether our current arrangements to ensure consistency of professionalism in the judiciary are adequate.

There is a strong case for saying that Parliament must be wary of trespassing on the independence of the judiciary. However, I had in my casework a constituent who was seriously aggrieved in the national press because of an inaccurate judgment. In the obiter dicta of the case, the judge quoted wrongly from the papers before him, but released the judgment to the press, with considerable adverse publicity for the person concerned. There is, therefore, an argument for saying that when the Office for Judicial Complaints says, “Unfortunately that is not within our powers because he turned up and he wasn’t drunk and he wasn’t abusive in these terms. There is nothing we can do about this”, we might think that is not really fair. Would we not expect a professional judge to get the facts right and to have read the papers properly? That is an interesting area to consider.

That brings me to my final point, which is that, ultimately, the court system is about transparency and balance. Sometimes balance shifts one way or another, and it is the job of this House, and Parliament as a legislature, to decide on the appropriate balance in the circumstances in which we find it. I agree with the Secretary of State that the balance has moved too far one way, and the Bill seeks to redress that. I therefore commend it to the House.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 4th February 2014 Commons Chamber

[Chris Grayling]

I sometimes find the Opposition’s attitude completely breathtaking. It is but two and a half years since they attacked our proposals to reform civil legal aid, saying that the savings should be found from criminal legal aid instead. Now they appear to have done a complete U-turn. Is the right hon. Gentleman prepared to commit in the House today that if a Labour Government are elected at the next election, they will reverse the cuts? I suspect that the answer is no.

[Robert Neill (Bromley and Chislehurst) (Con)]

2. What assessment he has made of the potential role of mediation in reducing the number of court cases.

[Dr Matthew Offord (Hendon) (Con)]

9. What assessment he has made of the potential role of mediation in reducing the number of court cases.

[The Minister of State, Ministry of Justice (Simon Hughes)]

The Government have put in place an extensive awareness strategy, and we believe that the more people can attend mediation, the more significant the impact will be on reducing the number of applications made to court. We have increased the legal aid budget for family mediation. There are data about the amount of mediation that takes place, but we cannot tell specifically who has attended mediation rather than gone to court.

[Robert Neill]

I congratulate the right hon. Gentleman on his appointment. Does he agree that mediation is well established in the commercial law field and growing in the family and matrimonial law field, but that we are perhaps missing a trick in two areas? The first is in ensuring that more use is made of mediation in land compensation and related planning disputes. Will he meet me to discuss whether the Bill on High Speed 2 gives the Government an opportunity to promote that and to create greater awareness among fellow Departments, and—

[Mr Speaker]

Order. I say to the hon. Gentleman that if he was paid by the word when he was practising at the Bar, he must have become a very rich man indeed.