Chris Grayling

TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs:

There are some political subjects about which it is difficult for anyone to get worked up because they are so abstract that no one understands them.  One of these is Judicial Review. 

As an antidote to our recent articles on subjects concerning contentious hot political potatoes of the day such as the Yewtree saga, free speech and radical feminism we thought it would be appropriate to write something that will reduce our readers back to the comatose apathy for which Mr Miller's prose style has become an internet watchword.  Previously the boredom quotient of the site was kept relatively high by our ongoing reviews of the Chilcot Inquiry but as fresh news from this arena seems to have coagulated like the dried blood on Tony Blair's hands of late we thought we would attempt to make some sense of an even drier topic.

Judicial Review is the process whereby if a governmental decision is so absurd that the government is deemed to have had exceeded its authority in making the decision by the Judicary a Judge can tell them off.  Or even insist they reverse the decision entirely.

Much is made by politicians of all hues of their ability to be decisive.  But actually in government taking decisions alone is not enough.  Governments are expected to be able to show that they reached their decisions logically and have properly consulted before reaching them.  Even in the case of a decision properly arrived at politicians can still reach irrational and insane decisions and implement them but they have to be able to show that there is some logical basis to them - that they are not just caprices.  For example the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp set out the principle of what is called "Wednesbury unreasonableness" which states that even if a decision has been correctly reached.... if the decision it's self is...

"...So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"

...it can be overturned on these grounds according to the late
Lord Diplock in 1948.  We covered the actual case of the Wednesbury Cinema some time ago ... so let's not go over all that again.  But in answer to the deeper question of what it is and why it matters and is it just the Judiciary telling the elected Government what to do ...here is some cogitation on the Constitutional meaning and ideological purpose of Judical Review.

It’s not really easy to understand looking top down why this having Judges tell politicians what to do might be a good idea but there is some historical logic to it.  In order to prevent tyranny most states have historically had systems for separating powers within the state.  

In a presidential system like the US or France there is usually a tripartite system where the legislature, executive, and judiciary are split up.  This type of system was invented (or popularised) by French Enlightenment political philosopher Baron de Montesquieu.  In the UK we have a parliamentary democracy so by definition the executive (the government) and the legislature (parliament) are intertwined since parliament elects the executive.  If you look up the separation of powers Wikipedia page most countries have their system explained in a couple of lines – 4 to 10 at the most. 

Not the UK however, who’s unwritten over-complex constitution that is never written down in one place requires over 960 words just to begin to explain it.   Due to the fact that parliament elects the government …or rather elects the Prime Minister who appoints the cabinet and all government posts personally many theorists contend that actually the UK has no effective separation of powers at all.  Indeed an Infamous Select Committee report in 1978 once infamously postulated that

The balance of advantage between Parliament and Government is so weighted in favour of Government that it is inimical to the proper working of our parliamentary democracy

 It’s not really clear where government ends and the judiciary begins either – but it is a bit clearer as parliament don’t elect Judges.  That said until the 2005 Constitutional Reform act the Lord Chancellor was a member of the Cabinet and a Judge.  Following reforms by Tony Blair The Attorney General (England and Wales) and the Lord Advocate (Scotland) have "quasi-judicial roles" but are part of the executive. 

If you think this is all splitting hairs just remember that Tony Blair along with many other MPs and PMs have crossed directly from the Judical wing of the Government to the Executive Wing of the Government …although there is the minor hurdle of getting elected.  And while Tony Blair may have had to jump the hurdle of election to move from the Judical wing of the Government to the Executive so his pupil master Baron Irvine of Lairg certainly didn’t in order to become a member of the executive and the legislature while remaining a member of the Judiciary.   Okay Tony Blair reformed the system since then and you could argue that Barristers although they make a lot of money for the government are not all government subcontractors most of the time... but it’s still all a bit Rt. Hon. Sir Joseph Porter K. C. B.  There is a contingent of the legal professional that is very closely linked with Parliament and you can see how close these links are by reading the Tony Blair page.  Even today Baron Irvine of Lairg remains a member of the legislature if not the executive.

According to Nolan LJ, in M v Home Office,


Probably the most famous recent Judicial Review case when the late Lord Nolan found former Home Secretary Kenneth Baker in contempt for deporting a Zairean refugee subject to a court order…

The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is

What that’s supposed to mean exactly your guess is as good as mine but I guess it means politicians can’t sack Judges and Judges shouldn’t make laws…. And stuff.

"It would be a black day for the rule of law and the liberty of the subject," the Court of Appeal ruled, "if ministers were not accountable to the courts for their personal actions."

Kenneth Baker immediately didn’t resign but was pushed off to the back benches by John Major after the General Election …not fancying the glamorous position of Welsh secretary.

Anyway we can see the latest attempt to kerb and/or make Judicial Reviews more difficult as the latest round in a long punch up between the Executive and Judicial wings of Government ...which carries on relentlessly in part because there is no clear written UK Constitution ... that never seems to start or end.  Whereas reviewing the US Constitution is a matter of the Supreme Court adding carefully drafted Amendments ... changing the UK Constitution is one big legislative bear knuckle fight with few Queensberry Rules.

According to the Public Law Project Short Guide series if a Judge finds against a public authority or government department the "remedies" available are as follows:

Quashing order
This is an order which overturns or undoes a decision already made.

Prohibiting order
This stops a public body from taking an unlawful decision or action it has not yet taken.

This is a temporary order requiring a public body to do something or not to do something until a final decision has been made in your case.

Mandatory order
This makes a public body do something the law says it has to do.

The court can state what the law is or what the parties have a right to do.

Damages may be awarded where a public body has breached your human rights. Otherwise the court will not normally give you any compensation if you win your case, unless you have some other entitlement to damages.

The remedies outlined above are discretionary so the Judge can also say "it aint fair but that's tough".

An interesting an widely unknown fact is that the legislation also works in reverse.  That is to say that you can also take the council to court for NOT making a decision they should have.  I am now busy thinking of things that Croydon Council hasn't done.

It's difficult to find any more about what Judicial Review is its self, what it contains and how it is comprised because the UK Constitution is so fluid and unwritten.  Well if you really want to know the best book we could find on the subject is Michael Fordham QC's Judicial Review Handbook.   Available for a mere £118 on Amazon.  It has one crawly review by someone who is presumably a law student. This small fact makes all the difference in price and quantity of sales.  To be fair you do get 869 pages of case reviews but the pecuniary limitations of our research department prevent us delving that deep into the subject...

So to the ordinary back of the pub legal commentator the mysteries of Judicial Review must remain enshrined somewhere in all the other legislation that defines what existing legislation can be legislated and enacted and in a cornucopia of case law which you probably have to be a leading barrister like
Michael Fordham QC to understand.

Googling the subject simply brings you back to articles like this detailing the Coalition's record-as-long-as-your-arm in creating decisions that Judges unkindly rule irrational.

Suffice to say that recently there has been an outbreak of various governmental decisions being taken to review and, more importantly, governments losing such cases.  This means that either many decisions are indeed being taken that are s
o outrageous in their defiance of logic or accepted moral standards that any sensible person who had applied his mind to the questions in question to be decided could have arrived at it or ... the entire process of Judicial Review has gone pear shaped.  Justice Secretary Chris Grayling who has a habit of losing decisions at judicial review tends towards the latter hypothesis... saying:

And so he has launched a Criminal Justice and Courts Bill to do something about it.  Actually the Bill tackles other matters too but why have one piece of legislation to do one thing when you can have one to do too many.  The bill started off in the House of Commons where on the 24th of February 2014 Chris explained:

"This Bill also contains some important measures as part of our long-term economic plan. Reforms to judicial review in this Bill, alongside those implemented in the first stage of the reforms last year, will tackle lengthy delays in the system, which put an undue burden on the taxpayer, act as a brake on dynamism and hold back economic growth. The reforms, which have been extensively consulted on, will rebalance the financial elements in judicial review cases so that anyone making a claim shares a fair level of financial risk. That will encourage those who bring claims to consider the merits of their case before doing so, and ensure that public resources are focused only on well-founded claims. I shall return to those provisions after I have dealt with the criminal justice provisions in more detail."

Chris's plan is fantastically simple.  Rather than attack the concept of Judicial Review he's attacked its funding.  At the moment many Judicial Reviews are funded by lobby and special interest groups campaining against decisions they see as unjust, illegal or illogical.  Examples included the building of incinerators near residential areas, the sale of priceless China that a Council doesn't actually own, 24 hour parking charge plans in the West End and Scotland's Named Person scheme.  Judicial Review is very expensive so these campaigners usually fund raise the money and use it to fund the review collectively through the pooling of financial resources.  If the fund runs out of money the review stops and the government often ends up picking up part of the tab.  Chris's plan is to make each individual who helped to fund or helped to promote the Review individually responsible for the costs.  His plan is to create a system where "
anyone making a claim shares a fair level of financial risk".  But how can that actually be?  Thousands of people financially contributed to the Stop the South London Incinerator Campaign.  Could you realistically make them all individually responsible for any costs?  And how would you divide the costs up?  And what about people who promote such campaigns but are not actual financial backers themselves?  It seems unworkable.  But where there's a will Hansard tells us the way ...

Chris Grayling: ...I shall turn now to the final part of my reforms. Judicial review represents a crucial check on public bodies. It rightly allows individuals, businesses and others to ask the courts to consider whether, for example, a Government Department has gone beyond its powers, whether a local authority has followed a lawful process or whether an arm’s-length body has come to a rational decision. However, I am concerned about time and money being wasted in dealing with unmeritorious cases which are often brought simply to generate publicity or to delay implementation of a decision that has been made properly.

To Stop the

Moreover, a significant proportion of these weak applications are funded by the taxpayer, through the expense incurred by the defendant public authority, by the court resource entailed, and in some cases by legal aid or by the public authority bearing the claimant’s legal costs.

To Riesco...

A wealthy man from Croydon willing
to fund the Riesco Judicial Review
from his own pocket...?

The first stage of my judicial review reforms sought to tackle unnecessary delays in the system. Provisions in the Bill will build on those—for example, by making it possible for more cases to leapfrog from the court of first instance to the Supreme Court, speeding up a final decision. We will also seek to change the rules on who has to pay the legal bills for cases, so that all parties have an interest in ensuring that unnecessary costs are not racked up.

Provisions in the Bill will result in stopping taxpayers having to subsidise cases unnecessarily by limiting the use of protective costs orders to exceptional cases with a clear public interest, and only when the court grants them permission to proceed. The provisions will also ensure that details of anyone financially backing a judicial review are disclosed to the court, even if they are not a named party, so that costs can be allocated fairly. They will also make third parties who voluntarily join in a JR case as interveners responsible for paying their own way.

Yes, indeed, even if you didn't bring the case to court yourself you can still be forced to declare your assets to the court.  So donating money to someone else to go to court for you wont protect your own assets from being sequestered should you fail.  And even if you don't donate any money if you are classed as "
third parties who voluntarily join in a JR case as interveners" or basically people who support the action but don't fund it you can find your assets sequestered too ... so basically you can become financially responsible for an action simply by supporting it and saying you think it is a good idea?

Dr Huppert: Perhaps I have misunderstood clause 53, but it seems to suggest that interveners will have to pay not only their own way but the costs of everyone else involved. That seems rather harsh. The courts have said that they welcome interventions that help to clarify the law. Does not the Secretary of State feel that this measure might go a little too far, and make it hard for people to intervene even though it would be constructive for them to do so?

Chris Grayling: My real concern is when pressure groups use individuals as financial human shields in cases that the groups wish to bring. They find someone who has no financial means, and use them to challenge the Government, and whether or not they win, the Government—that is, taxpayers—are guaranteed to have to pay the bill. The taxpayer will have to foot the bill because there is no prospect of recovering the costs from the individual who is fronting the case. That is what I am seeking to change.

While he has a point here about who picks up the tab this statement kind of suggests that starting an action is cheap.  It really isn't.  You usually need at least £10,000.  Even Chris's own side seem to think this may be taking things a bit far.  Still you don't get legal aid for stuff like Criminal Trials these days so who'd need if for holding the state to account.  Luxuries.

Kate Green: I suppose I should declare an interest in this context as well, given that I used to run a pressure group that brought judicial reviews—[Hon. Members: “Ah!”] Against the previous Government, I must say. Those judicial reviews always addressed matters of significant public interest. How does the Justice Secretary intend to deal with complex cases whose costs are likely to be high, but in which it would be helpful to the court to have the matters properly argued, analysed and brought to the court’s attention, as the hon. Member for Cambridge (Dr Huppert) described? Does the Secretary of State have a means of ensuring that his proposal will not shut people out from bringing such complex cases?

Chris Grayling: The hon. Lady certainly did bring cases against the previous Government, but the Secretary of State for Work and Pensions and I discovered to our surprise when we went into that Department in 2010 that the practice of the previous Government was to guarantee to pay the costs of the pressure group from day one. We got a call from one pressure group saying, “We are going to bring a judicial review. Can we assume that the usual arrangements will apply and you will pay the costs?”, to which the answer was, “Well, actually, no.” It was a strange way for the previous Government to do business.  As I said, protective costs orders will still be available for cases of genuine public interest, but my fear is, and my experience has been all too often, that cases are brought for public relations and campaigning reasons in a way that leaves the taxpayer guaranteed to pick up the bill. I do not think that is fair on the taxpayer.

Labour's Keith Vaz (a model of proberty who's always keen to help worthy foreigners to gain a British passport even if it results in a public inquiry) was uninpressed:

Keith Vaz: The Government have taken away the right of appeal in a number of immigration cases, and the Minister of State, Ministry of Justice, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), who is sitting by the Justice Secretary’s side, was very vocal in the campaign against the abolition of the right of appeal in immigration cases. There has been a huge increase in the number of judicial reviews in immigration cases. Is it fair that we should cut off every single judicial route, enabling people to have nowhere to go if they want to challenge decisions?

Bromley and Chislehurst
's portly Freemason Tory backbencher Rober Neill helpfully chips in with a well planted question.
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.

...but clearly he does not understand the concept of Wednesbury Reasonableness whereby decisions can be reviewed on their merits provided that a Judge is sufficiently resolute in his opinion that the decision is palpably absurd.  This raises the awkward philosophical question of what actually is absurdity ... but let's not go there yet.  Suffice to say that if a Judge says something is absurd (such as the claim that Frankie Boyle is a racist made by the Daily Mirror) then I'm sure it is and if a Judge says something is not absurd (such as claim that Jeremy Thorpe was innocent of murder) then I'm sure it isn't.  This what Judges are for.  Who else should arbitrate?  Comedians?

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....

Labour's Sadiq Khan however puts it down to a lack of useful legislation being put through Parliament and Ministers with nothing better to do...

Sadiq Khan (Tooting) (Lab): Let us be frank: this Bill has come from nowhere. If the Government really wanted a new justice Bill, the obvious place to trail it would be in the imminent Queen’s Speech, not today with a Second Reading towards the dreg ends of this parliamentary Session. So what is going on? With 15 months to go until the general election, experienced heads around Parliament say that it has never been so quiet.  We know the old saying that the devil makes work for idle hands. Recent weeks have certainly shown that to be the case, with the Government suffering a number of troubling episodes with their own Back Benchers, perhaps in no small part because the thin legislative programme leaves their own sides twiddling their thumbs. Nature abhors a vacuum; so too does Parliament. Disquiet, plotting and rebellions tie the Government in knots, leading to the absurd situation in which the Opposition had to step in and vote down a Tory Back-Bench amendment on the Government’s own Immigration Bill—an amendment that broke the rule of law—while the Conservative majority in the coalition sat on their hands. Has anyone heard of anything so pathetic? We have a governing party that could not even vote in favour of its own Bill, and a Lord Chancellor who swears an oath to uphold the law but who could not even bring himself to vote for that rule of law.  We can guess what happened. The Prime Minister had probably sent out a desperate memo, pleading with Cabinet colleagues to bring forward legislation—any legislation—to fill the pitiful gap in parliamentary schedules and to keep Tory Back Benchers happy and busy. Who was the only willing and eager star pupil to respond? Who was as keen as mustard to be top of the class? Yes, it was the Justice Secretary. I can see his response to the Prime Minister. It would start, “Dear Dave”. I appreciate that that is not parliamentary etiquette, but he is known as the “Call me Dave” Prime Minister.  The letter would go on, “I read your memo, begging for legislation to make it look like this Government are doing something, and also to keep those pesky, ungrateful Back Benchers happy. I know they hold you responsible for not winning the last general election. I am only too willing, Dave, to rush forward some legislation. It is a bit of a Christmas tree Bill, but it does mean that we can shove on as many baubles as we want. After all, the more tabloid friendly stuff might keep UKIP off our backs, along with those ungrateful Back Benchers of yours. Yours sincerely, Chris.”

Khan then went on a huge rant which even included quoting from a Daily Mail article just to prove it's not only a left wing issue that ended...

"To be frank, delays in HS2 or Crossrail 2, the lack of houses being built or of big infrastructure are more to do with the incompetence and policies of this Government than with judicial review. It is hardly surprising that people believe that the Justice Secretary’s true intentions are to insulate his Government’s bad decision making from any kind of challenge. The Government have also sought to rein in legal aid and no win, no fee cases; to gag campaign groups with their shoddy Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014; and constantly to attack human rights laws—there is a pattern. These are the tools by which our citizens hold Governments to account, and the Government are weakening them"

Above is a random tweet or two by a Conservative backbencher who writes to Patrick McLoughlin (then chief whip) on his own website:

"I urge you to pause the progress of HS2 legislation, have regard to the findings of Judicial Reviews currently underway with respect to the Department’s handling of the HS2 consultation, and use this delay to ask HS2 to consider alternative routes that would minimise environmental damage to previously unscarred countryside and would better integrate HS2 with the existing rail network."

To be fair to the Government the many Judicial Reviews against HS2 by many many lobby groups don't seem to have had a fantastic level of success so far...

...maybe we do all left and right see HS2 too much as a campaigning tool to derail anything we don't like without exercising much common sense in how we use the system.  Not to mention whether it is actually the best use our own and the government's resources.  But who cares about that?  It keeps the legal profession in healthy fees.

Kate Green: I am glad that my right hon. Friend makes that point, because the Justice Secretary is quite wrong to suggest that the majority of judicial review cases are about campaigners making campaign points. They are about individuals who have suffered personal injustice at the hands of an over-powerful state, and we ought to maintain that ultimate protection for those individuals, many of whom are disabled, many of whom are vulnerable, and many of whom are poorly educated. Does my right hon. Friend not agree that, whatever the Justice Secretary presents as the effect of these changes, the reality is that it is vulnerable individuals who lose out the most?

Sadiq Khan: Absolutely. The concerns are that as a consequence of the changes decisions made by Ministers and other public authorities will be put above the rule of law. Those authorities will almost be free to do as they please, to the ludicrous extent that breaking the law appears to be of no concern to the Justice Secretary.  It is clear the Justice Secretary’s measures are underpinned by a majoritarian view of the world in which democracy is only about elections, and those who win can do as they please in between. I would be more sympathetic if the Conservatives had actually won the last general election. The Justice Secretary’s policies are dangerous. Democracy is more than elections: I am not alone in that view, and neither is my hon. Friend the Member for Stretford and Urmston. Lord Dyson, the Master of the Rolls, said thatthere is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review.”

The former Lord Chief Justice, the esteemed Lord Woolf, said:

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

He also said that the Ministry of Justice has shown a

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

Joe Rukin, co-ordinator of the Stop HS2 campaign—that infamous left-wing dominated campaign group—said:

The government seem to be making out that they believe any of their infrastructure plans should be above the law and do not realise that it is essential in a democratic society to be able to hold the government to account”.

Yes, one thing's for certain there's no cross party political shortage of balding white middle aged men who think this is important.  Welsh Plaid Cymru barrister
Mr Elfyn Llwyd
then went of to suggest the legislation is illegal because it suggests Judges should turn a blind eye to potential illegality...

Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC): I will quote from a very interesting article that appeared in last Thursday’s edition of The Times, penned by a Member of the other place, a very experienced Queen’s counsel who has taken judicial review cases on many occasions and defended Governments in such cases as well. He wrote:

Clause 50 provides that courts and tribunals must refuse to allow a judicial review application to proceed to a full hearing if the defendant shows that it is ‘highly likely’ that the outcome for the applicant ‘would not have been substantially different if the conduct complained of had not occurred’. If the case does not proceed to a full hearing, the court must refuse any remedy to the applicant if that same test is satisfied.

The proposal is objectionable for constitutional reasons. The clause will instruct judges to ignore unlawful conduct and to do so in a context where the government itself is the main defendant.

All governments come to resent the power of the judiciary to identify and remedy unlawful conduct. But until now they have, with greater or lesser enthusiasm, recognised the value of what is central to the rule of law. After all, they will not be in power indefinitely…It tells the Government, and the world, that what has been done is unlawful. Ministers and civil servants know that they must change their conduct for the future, and they do so.

He concludes the article by stating:

“Over the past 40 years, judicial review has helped to prevent abuse of power by governments of all complexions. It is ironic that judicial review now needs protection from a politician whose reforms would neuter its force by the use of political slogans that have no factual basis and are ignorant of legal and constitutional principle.

Those are strong words from an expert in the field. I think that we would do well to take them on board and consider their purport.

The timetabling of the Bill is also a little confusing. Although it is having its Second Reading today, we must assume that its introduction has been orchestrated so that it will be carried over at the end of the Session, no doubt to make the Government appear proactive and to mask the fact that so few significant pieces of Government legislation remain.

Conservative Nick Herbert then argued that the problem is there has been a threefold increase in Judicial Review cases...

Nick Herbert (Arundel and South Downs) (Con): Unlike the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), I welcome many of the sensible provisions in the Bill. These amendments to the operation of the law seem to me to make common sense.  I am not sure whether I understood the Opposition’s point about judicial review. If we accept that there has been a threefold increase in the number of applications for judicial review since 2000, are the Opposition making the case that there is nothing wrong with judicial review procedures or the way in which they are being used, or are they saying that there has been an increase in the number of poor-quality decisions by the Government and other public bodies? If the latter, the Opposition would be conceding that that happened largely on their watch. If we accept that there has been a very large rise, surely it makes sense to make a number of careful changes that will ensure that the system operates as intended, which is not to provide a vehicle for those who simply object to a decision and wish to test it in an alternative body—in this case, a court—but to ensure that decisions are made properly and subjected to the right and appropriate judicial scrutiny.

And Mr Khan said there hadn't been if you don't include immigration cases...

Sadiq Khan: I am surprised by the right hon. Gentleman’s comments, because he is usually thorough in his research. He should be aware that if we exclude immigration from judicial review, we will see that the situation has been static since the 1990s. A Bill passed 18 months ago by this Government moved immigration from judicial review to the tribunal system, so the problem they are seeking to address was dealt with nearly two years ago.

And Mr Herbert said that there is a problem even if Mr Khan doesn't believe there is a problem... and goes on about money...

Nick Herbert: The right hon. Gentleman seems to be confirming that he does not believe that there is a problem, but that view is not shared on the Government Benches. In our view, the increase in the extent of judicial review does not just impose a cost—which is a serious matter in itself—but also means, dangerously, that decisions by the courts are increasingly substituting for decisions that should be made by Ministers, which was not the original purpose or intention of judicial review.  In his closing remarks, the right hon. Gentleman railed similarly against previous measures introduced by this Government to deal with legal aid and said there had been restrictions on access to justice. The Opposition’s problem is that they are very quick to criticise every proposal in the area of justice and criminal justice that is designed to ensure a sensible use of public funds and necessary savings. They are not able to explain how they would deal with the very real budgetary challenges that confront every Government Department, not least the Ministry of Justice, which has been required to make substantial savings. If, along the way, the Opposition oppose every measure and criticise sensible provisions such as that under discussion without saying how they would make the savings required, they simply have a credibility problem.

Before going off on a tangent about sentencing.  Well, it isn't really a tangent as the bill covers so many different things but as this is a thing I'm not covering let's move on...  Keith Vaz postulates that the rise in Judicial Reviews is a result of immigrants having their rights to appeal decisions taken away.

Keith Vaz: Then I admire his patience in sitting through the entire debate and I wish him well in his ministerial career. I am not sure whether, had he got to the Ministry of Justice before the Bill was signed off, he might have opposed some of these points.

I will start by raising a few concerns. I agree with the shadow Lord Chancellor that there are some good parts of the Bill, and I hope that we can make it better between now and it becoming law, should the House decide to support it. I have about five points to make, the first of which concerns judicial review. The previous Labour Government were embarrassed on a number of occasions when they lost judicial review challenges, and I believe it is extremely important that that remains an avenue of choice for those who feel that the justice system does not provide them with the kinds of solutions they need to their problems.

In particular, I am thinking about those who face difficult immigration cases, who have seen the right of appeal taken from them—not by the Ministry of Justice but by the Home Office—and who now face only the prospect of applications for judicial review to bring their cases to the attention of those who make such decisions. I agree that there are many frivolous cases, and many people go forward and make judicial review applications, sometimes for the sheer hell of it. It is right that citizens should use this power carefully, but once we take away the right of appeal in immigration cases, we leave people with no choice other than to apply for judicial review. That is why we have seen an increase in judicial review over the past few years.

Next the Bill moved to the Public Bill Committee where a large number of witnesses were called to discuss it... including Frances Crook of the
Howard League for Penal Reform

Q 29 Mr Andy Slaughter (Labour):  Frances Crook, you have given us a brief that deals with some of your specific objections to the changes in part 4 to judicial review, but if these changes go through unamended, how will that make a difference to the way the Howard League operates? You do not have to refer to any judicial reviews of the Ministry of Justice that you are taking at the moment—I do not want to upset the Minister too much—but more generally, how will it affect you?

Frances Crook: At the risk of being a little philosophical, judicial review is a fundamental protection for the individual against the overweening power of the state. It is absolutely right that decisions by Government, at any level, should be open to challenge to make sure, to test whether, they are lawful, appropriate and just there. Judicial review is that last bastion of support for the individual. It is very rare for organisations like mine, charities, to take judicial review as themselves. Apart from the one we are doing at the moment, we have done it twice. The first one was 14 years ago, when we took the then Home Office and prison service to judicial review for child protection reasons for children in custody, and we won. We said that children in custody should get the same child protection support as children outside. The second time that we were part of a judicial review was more recent. If a child is arrested, if my son or daughter is arrested, I would want to know; otherwise at 2 o’clock in the morning, I would be phoning the hospitals and be absolutely terrified. We changed the Police and Criminal Evidence Act 1984 so that all children under 18 have an appropriate adult and get the appropriate protection. This is really fundamental stuff that affects a lot of people’s lives, and it is very important that organisations can do this, but as a charity we will not be able to do it, because the financial risk and the financial penalties will be so great. The other side to it is the suggestion that interveners should also be at risk of huge financial penalty. We have done interventions in judicial reviews, sometimes at the request of the court. That makes us independent experts giving evidence, not on one side or the other, but to the court in a judicial review. The proposal in the Bill means that we would not be able to do that because we might be liable for all the costs of the other side that that incurs, so the court would not get expert evidence from interveners. I think that some of the proposals are actually damaging to democracy—I say that advisedly—and will also damage court proceedings because expert evidence is not available.

After a diversion into other issues to do with the Bill in general a Conservative puts their oar in....

Guy Opperman:  My last question is about judicial review. [ Interruption. ] Not at all. I must disagree with you on judicial review. There should be financial risk relating to the application. When I took legal aid judicial review applications, the state assessed the merit of the case. If you believe that you have a case with better than 51% prospects of success, or you have such a strong and passionate belief that you must get involved in the case irrespective of the prospect of success, should you not have a financial risk that you should pay for that?

Frances Crook: There are already stringent tests to go through the judicial review hurdle. That is, as you say, absolutely right. However, you need to make the risks and the hurdles proportionate and appropriate. The proposals in the Bill are not.

Q 43 Guy Opperman:  If your case is so good, why do you not get a protective costs order? 

The Chair:  Mr Opperman, we are not in court; we have only an hour, not three weeks. We will move on. 

Martha Spurrier was wheeled out by the Public Law Project to terrify MPs with he 1st from Cambridge on behalf of the plebs at the next committee stage:   Shall I start with some headline points? I suspect that we may well be agreed on these issues. Dealing first with the general context, obviously the provisions on judicial review in part 4 of the Bill need to be seen in the context of the draft regulations currently out for consultation, which deal with payment for judicial review before permission is granted to proceed to a substantive hearing. The idea has been consulted on previously, and I think there is a wide consensus that that financial risk To the Alliance
                                                  for Legal Aid...imposed on providers—including in situations where a third party entirely beyond the provider or the lay client means that the case will not go to the permission stage—will have a significant chilling effect on whether such judicial reviews are brought at all. There is also the wider context of the decline in availability of legal aid in the civil areas under the LASPO Act, with the proposed residence test and with changes to prison legal aid.

Since the
Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 76 per cent of family law now have at least one party without representation - a rise from 46 per cent before the act.
I turn to the headline points about part 4. The first thing to say is that we maintain that the evidence base for the proposals simply does not exist, and that the mischief that the proposals purport to be designed to meet has not been made out empirically by the Government. We also say that part 4 is entirely asymmetrical in favour of defendants.

There is nothing to stop public bodies from bringing up greater costs than they need to, but there is a great deal to prevent claimants from bringing judicial review. In particular, the Bill is directed at claimants who have a public interest in the litigation and who may not even have an individual stake in the outcome.

The entirety of part 4 is also self-serving, in that its purpose is to insulate public bodies from judicial review—whether by design or coincidence, that will be the effect. The fact is that through the Bill, the Executive will be able to prevent or chill public interest challenges being brought against public body decision making. That will neither save costs nor increase public confidence in the system. There can be public confidence in a system only where public bodies are forced to act lawfully by the courts.

While Angela Patrick, Director of Human Rights Policy, Justice complained "Another question put to witnesses in the previous sitting was about whether judicial review was perfect, and sure, it might not be; there might be ways to save money and make it more efficient. Lots of respondents to the consultation, including the senior judiciary, suggested means by which we could look again. One example was asking about local authorities that pursue—in the words of the Lord Chancellor—“hopeless” defences at the cost to the taxpayer of pursuing litigation that has no potential prospect of success.

Instead of engaging with such legitimate alternatives to efficiency, the Government have, in our view, in the four proposals in the Bill and in the legal aid changes happening in parallel, approached the problem on a two-pronged mission. First, they are proposing financial disincentives, whether—as Martha suggested —by design or coincidence, to disincentivise claimants who wish to pursue judicial review and do not have significant independent means to do so otherwise.

The second element of the approach is fundamentally to restrict the ability of the courts to control public interest litigation. When we talk about public interest litigation, we talk about cases that are not claimed by the claimants to be in the public interest, but are determined by the judiciary to have a public interest element in the case proceeding to be heard.

The judiciary, through this Bill, is being constrained in how it can use its discretion to ensure that such cases are being heard effectively in circumstances where it would serve the wider public interest for them to be determined. That is our concern.

Mr Slaughter:  You refer to some of the evidence we heard on Tuesday. Several points were put to the witnesses: the first was that what is in the Bill is not of great consequence. If proposals, such as those on standing and to restrict types of applicant, have been dropped, and other proposals arising out of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 changes to legal aid are outside the compass of the Bill, then what we have here are some pretty technical or minor changes to adjust the balance slightly. Would you agree with that?

Sara Ogilvie: I would completely disagree with that. The proposals in the Bill will not only act as a barrier to people using judicial review, but change the nature of judicial review. Going into the specifics may be helpful. Clause 50 contains a proposal to change how the “no difference” argument operates. Judicial review is, as you say, a technical process: it is about technicalities, procedure and ensuring that the decision maker did all the right things and did everything that they were supposed to do before taking a decision. That is basically a procedural review. What the courts do in a judicial review is look at the outcome. They do not have to say whether they are happy with the outcome and they should not say whether the claimant was happy with the outcome; they just have to say whether the correct process was followed. The proposal in clause 50 would require judges to get into a much more substantive look at the merits of the case, rather than just sticking to the procedural case. Clause 50 would change the nature of judicial review. That is one thing that we are concerned about."

These arguments go on and on in the same vein until...

Angela Patrick:
Can you remember how many times you have asked a Minister whether a Bill needs another safeguard and the answer has been, “Don’t worry. We’ve got judicial review.”? I am sure that officials in every Department love that line and ministerial briefs must have included the words, “Don’t worry. We’ve got judicial review,” more times than you can mention. Our problem is that this package will mean that not only all the promises that have gone before, but all the promises to come, such as, “Don’t worry. We’ve got judicial review,” will become a lot less realistic. It will become, “Don’t worry. There’s judicial review for those who can afford it and can get over the financial burdens.” 

Etc etc ...until Mike Kane who seems to know where the bodies are buried suggests that it is all Richard II's fault...

Mike Kane:  In 1485 Richard III, who was the last English king to die in battle, fell at the field of Bosworth, defeated by Henry Tudor and the Stanley brothers. Being from my side of the Pennines, I was delighted at the outcome. His remains were found in a car park in Leicester not so long ago, and they were dug up, examined and eventually interred in Leicester cathedral by Leicester university.

Mr David Evennett (Bexleyheath and Crayford) (Con):  Not yet.

Mike Kane:  Near enough. The Plantagenet Alliance has taken out a judicial review to look into Leicester university’s claim that it had the power to do that. Do you not think that that is a colossal waste of taxpayers’ money and an abuse of the judicial review system?

According to the BBC the Plantagenet Alliance was formed shortly afterwards by Stephen Nicolay, the 16th great-grandson of Richard Plantagenet, 3rd Duke of York (father of Richard III).  Times have obviously been hard for Stephen Nicolay as his website consists only of a box for collecting emails addresses and his twitter account has only 45 followers (if you don't count the dead people who are reading it incorporeally).  Their spokesperson Vanessa Roe (who certainly dresses the part) said "
Who do we think we are? We don't think we are anyone - we know who we are.  We are the collateral [non-direct] descendants of Richard III, we speak on behalf of him, the only people who can speak on behalf of him. There are other groups who study Richard but we decided he needed someone to fight for him.  We are his relatives and we decided to put our necks on the block and go down the legislative route."


1 The Claimant's application for Permission to bring Judicial Review proceedings against the First and Second Defendant is granted on all Grounds.

2 Time for bringing such Judicial Review proceedings be extended as necessary.

3 The First and Second Defendant shall, within 21 days, in accordance with their respective duties of candour, each give disclosure of all correspondence, notes and other documents relevant to (i) the circumstances surrounding the original application and grant of the Licence and (ii) all subsequent discussions and exchanges concerning the remains of Richard III and their re-interment.

4 There shall be a Protective Costs Order whereby the First and Second Defendants shall be prevented from recovering their costs of these proceedings from the Claimant.

5 The Claimant's own costs of these proceedings shall be capped at a level to be set by the Court. The Claimant shall apply to Mr Justice Haddon-Cave sitting as the Vacation Judge in Court 37 in the week of 23rd September 2013 to set the cap level, on notice to the other parties.

6 The substantive hearing of these proceedings to be set down for hearing next term (estimate 1 day). Skeletons to be exchanged 1 week before the substantive hearing.

The archaeological discovery of the mortal remains of a former King of England after 500 years is without precedent.

In my judgment, it is plainly arguable that there was a duty at common law to consult widely as to how and where Richard III's remains should appropriately be re-interred. I grant permission to the Claimant to bring Judicial Review proceedings against the Secretary of State for Justice and the University of Leicester on all Grounds.

Angela Patrick: My husband is from York, so I do not want to restart the wars of the roses.

Mike Kane (labour) :  That is just between me and my hon. Friend the hon. Member for Barnsley Central.

Angela Patrick: Then I think it has already been taken care of. The real question is: what hurdles did they have to get over to get themselves into court? You have got a judge who sat there and said, “They have got an arguable case.” They are applying the rules of judicial review and they have got a runner. We have looked at this, and the Government have changed the test more recently. If a case is totally without merit, it is entirely there for a judge to say, “I’m really sorry, you are on a hiding to nothing, get lost. We are not even going to have an oral hearing.”

There must be something in that case that has prompted the judge to ask, “Have they abided by the rules?” That is the real question. Have the decision makers who have determined where the remains lie done it properly? We can apply that to all sorts of decisions. We think that is such a valuable exercise it should not be tinkered with lightly.

Martha Spurrier: I do not think it can be suggested that there is anything in part 4 of the Bill that would have knocked out that challenge. I am not instructed in that case. I am not going to make any comment about the validity of their legal arguments, whether they have them or not; that is for the judge to decide, it is certainly not for politicians to decide. I would ask you to point me to the relevant clause in the Bill. If that is a mischievous use of judicial review, where in the Bill will that be stopped?

Portly David Evennett Lord Commissioner of HM Treasuryand member for  Bexleyheath and Crayford:  Do you think it is a misuse?

Martha Spurrier: I cannot comment on it. I have not read the papers and I do not know the arguments.

Portly Robert Neill (Bromley and Chislehurst) (Con):  A lawyerly response.

Martha Spurrier: It would be entirely improper for me to weigh in.

Angie Bray (Ealing Central and Acton) (Con):  You seem to have a view on every other thing. This would be something that it would be interesting to have a view on.

Martha Spurrier: It would be entirely improper for me to comment on something that I had not read the papers for.

Angela Patrick: I do not know about Sara’s position, but we are both professionals who are subject to Bar code of conduct. We would not want to comment on cases that are actively being considered by judges, except in the abstract.

Martha Spurrier: I can comment on cases that I have brought and been involved in, because I know about those cases. It is improper for me to do so on anybody else’s case or work. 

And on it goes.  This is how the potentates use their hours....  so far not a single person has much good to say about the legislation but it is obviously wanted by someone so we press on in the hope of finding a devil's advocate.  The best they can do in round four is
Martin Westgate and even he doesn't seem to think the bill is a good idea ...only that it's not as bad as it's cracked up to be ... insisting Judicial Review is very hard already...

Mr Andy Slaughter (Hammersmith) (Lab):  I shall ask Mr Westgate a question, and if there is time at the end, I have a question for Mr Lithman. Mr Westgate, you provided a very helpful note dealing with part 4 of the Bill clause by clause. It has been suggested to previous witnesses dealing with this part that the changes in part 4 will not have, individually or cumulatively, a substantive or, rather, a substantial effect on the way that judicial review currently operates. Do you agree with that? That is either because the main changes initially proposed, such as that on standing can be withdrawn, or because those that have a substantial effect, such as the changes in relation to legal aid availability are without the Bill. Do you think the clauses in the Bill will change the character of the way that judicial review actions are pursued?

Martin Westgate
Constitutional and Administrative Law Bar Association : I do not agree that they will not have a substantial effect or, indeed, a substantive effect. For the most part, leaving aside the “any difference” point, the provisions about financial resources, interveners and cost capping are directed fairly specifically against a particular kind or application for judicial review, which tends to be ones that are brought in the public interest, often by bodies that are charities or have no personal stake in the outcome and who are then in a position to need the protection of cost capping. They are also the kind of cases where interveners become involved because they have a great deal to add to assist the court. It will have a significant chilling effect on people bringing those kind of applications or on interveners intervening. The result will be that challenges that are brought in the public interest, which many people might think ought to be the business of the courts, simply will not be brought. The “any difference” provision in clause 50 will lead to a larger number of cases being rejected on procedural grounds at a premature stage. One of my main concerns on that is a practical one. It will clog up the courts at the permission stage. There is every incentive to public authorities to take the opportunity if they can to knock it out on those grounds.

Mr Slaughter:  Reasons for pursuing the course of action in part 4 have been given variously as that judicial review is used in a partisan political way at the moment to support particular political causes rather than to remedy defects, that it is a remedy that is out of control because of an explosion in numbers and that it is perfectly proper to adopt these steps when the Government are looking to control public spending. Do you have any comment on those arguments?

Martin Westgate: The figures simply do not support the suggestion that judicial review is out of control. There are a significant number of judicial reviews. Many of those are immigration cases, although I do not subscribe to the idea that immigration cases are a problem. The reality is that those are now being dealt with differently and so one is left with around 4,000 cases. Given the number of administrative law decisions, the surprising thing is that there are so few applications, not that there are so many.

The objection that cases are brought as an extension of some kind of political debate is misguided. The appropriate control for that is that the courts have to give permission. There has to be an arguable point. If the point is simply being taken forward as some political argument from someone who is, frankly, a bad loser, then the courts will refuse permission. They can deal with it in that way. These are cases that are brought forward because they raise serious issues for determination by the court. It is a matter that is best left to the courts rather than blunt measures like this. The reality is that, overall, although they are significant cases, the number of cases that are caught by cost capping is very small compared with the overall total. So there is no significant cost saving either.

Mr Slaughter:  But is it too easy to bring a judicial review at present? You say it can be caught at the permission stage. While it is possible to get legal aid for the permission stage, clearly there are changes to be made to that regime as well. Something else said by the Government is that it is simply too easy to start, even if it may not get to a full review, either to introduce delaying tactics or simply to make a point. Is that your experience?

Martin Westgate: Anyone who thinks it is too easy to get permission to apply for judicial review has not made an application. Although the threshold ought to be arguability, in practice the courts apply a much higher standard than that most of the time.

Robert Neill (Bromley and Chislehurst) (Con):  I understand the point that you are making. Equally, I am sure you can see that, even in coming to the permission stage, the fact of launching the application to intervene is potentially going to put the other parties to some costs. Is it unreasonable to say, “Even at the stage that you think of bringing an intervention, you should think about the potential financial implications for the public purse of doing that.”? It may be done for good reasons, but you should have that in your mind.

Martin Westgate: I take it the focus of your question is on interventions rather than applications more generally.

Robert Neill:  Yes.

Martin Westgate: The procedure for applying to intervene is initially to write a letter to the court. It has a pretty low impact at that stage. Interveners, when they seek permission to intervene, are required in effect to outline what they will bring to the case and how they will add value to the arguments that are already being advanced by the parties.

Robert Neill:  If the intervention fails, is there much prospect of the public authority—say a small district council—getting their costs back?

Martin Westgate: It depends on the facts. One concern I have about clause 53 is that is expressed in such mandatory terms. Any party can apply, and if they apply, the court must order the intervener to pay costs.

Robert Neill:  Save for exceptional circumstances.

Martin Westgate: Indeed, but the way that it is worded must contemplate that exceptional circumstances are not that that party lost. So you could have the rather bizarre situation where you could have an intervener who has come and provided great assistance to the court, a party has lost because it was running bad arguments and yet still it can ask the intervener to pay its costs. That is an extraordinary position.

Robert Neill:  That would depend on the interpretation of other people.

Martin Westgate: It may depend on interpretation, but that seems to be what the clause is getting at.

Robert Neill:  In the same way that it is important that there should be a discipline on decision makers to get things right, surely there should always be under any circumstances a discipline upon any potential litigator, whatever their cause or reason, to bear in mind the financial consequences of bringing litigation.

Martin Westgate: The premise behind your observation is that interveners just throw in interventions for any purpose. That is simply not the case in my experience of acting for interveners and in cases where interveners come in. A great deal of thought is given to deciding what arguments to put and whether they are really going to assist the court. The court can be very critical of an intervener who comes along and does not add to the arguments. That, in itself, is a very firm discipline on people intervening. Interveners have to meet their own costs, either directly if they have to pay, or by using up the capital of good will of people who are acting for them for no fee.

To suggest that it is in some way a cost-free way for interveners to get involved in a case does not reflect reality. The existing powers of the court are there, if an intervener comes in and wastes the court’s time, or if an intervener unnecessarily runs up costs. Courts can already order them to pay costs. It simply does not require the kind of blanket provision set out in clause 53, which is basically skewed against interventions and intended to discourage them from taking place. In recent years, the courts have been greatly assisted by interventions from all sorts of areas. Sometimes, the Government or Government Departments intervene. Very often, the Equality and Human Rights Commission intervenes.

All those are bodies that bring a great deal of expertise and experience to the court, and it is quite wrong to make them pay.

As I pointed out in my written note, it would have the extraordinarily strange result that the more help that the intervener provided to the court, the more that they would have to pay out. By definition, if they have got a lot to bring to the court, the other parties are going to have read it and think about it. If they then want to bill the intervener for the time taken to read and think, it means that a helpful intervener ends up paying more than a non-helpful one, and that cannot be right.

Robert Neill:  Is this really the most efficient way of clarifying issues of law around this sort of thing?

Martin Westgate: By definition, when an intervener becomes involved, it is because the point is one of difficulty. The adversarial system we have is one where the argument is simply left to claimant and defendant. It may be in their interests not to look at the wider ramifications of a particular construction or not to explore points that are not directly before the court. Very often, the interveners pose and ask the questions that the parties, for one reason or another, do not want to ask, and that can be of great help to the court.

Robert Neill:  It can mean that—I will take the example again—a small local authority that has acted in good faith in its own particular circumstance is suddenly dragged into a much larger case because of an intervention. Should not there be some protection from that?

Martin Westgate: That can be a reason not to have an intervention. No one intervenes without all the other parties having a say about whether they should intervene.

Robert Neill:  But they will not get their costs back in resisting it.

Martin Westgate: To take your example, you have a small local authority and they are concerned that the intervention widens the scope of the challenge. The reality is that that very often does not happen; all that happens is that some additional arguments are presented, but if it is the case, there is nothing stopping the authority saying, “Well, this is our point. Here’s our point. We’re presenting arguments on that point and we have nothing to say about all the interesting arguments the intervener wants to run with.” There is no reason why they should not do that and it does not incur any extra costs. This is directed at a problem that largely does not exist. It is a very small number of cases and actually the additional costs are very small. 

And on it goes ... Leaving aside the general problems... Neil Sinden
Policy and Campaigns Director, Campaign to Protect Rural England has a particular problem with clause 51.  I'm not sure why but it seems to be being redrafted

Other matters

51 Minor amendments

(1) In section 132(4A) of the Powers of Criminal Courts (Sentencing) Act 2000
(compensation orders: appeals etc), for “House of Lords” substitute “the
Supreme Court”.

(2) 25In section 13(6A)(a) of the Tribunals, Courts and Enforcement Act 2007 (rules
of court about when the Court of Session may grant permission to appeal
against a decision of the Upper Tribunal), after “principle” insert “or practice”.

Neil Sinden: Can I come in on clause 51? We take the view that this measure is designed to intimidate groups who we think would have a legitimate case to pursue in relation to judicial review of a decision-making process. Arguably, a result of that prejudicial impact could be more unlawful and irrational decisions being taken and allowed.

We would support striking out the clause altogether on the basis that it is unfair in those terms, but it is also of concern to us—one of our local groups has raised this particular point—that it opens the door to further intimidation by developers of a community that may be considering this course of action. There is a live case at the moment where developers have been exceedingly intimidating of a local community with a legitimate case to be heard. We fear that, with clause 51, that kind of activity would be even more common and local communities would feel even more intimidated as a result of that provision.

If the deletion of clause 51 is not achievable, there is a detailed matter to look into in terms of the scope of the financial disclosure provisions, which include, currently in clause 51, those likely or able to contribute financially to a campaign. We have questions about the workability of applying that definition legally. How on earth can you identify groups or individuals who are likely or able to contribute to a campaign, but who have not yet done so? If the clause remains, I think it needs to be amended in relation to reducing the scope of that provision, so that only those people who actually have donated need to be made public. But as I say, we would prefer the clause not to be there at all.

Mr Slaughter:  Are you saying that rather than being about transparency—I do not want to put words in your mouth—you think clause 51 is about intimidation, or is another way of discouraging claims being brought?

Neil Sinden: Absolutely, and those are the kinds of words that we have heard from our local groups who have already been subject to considerable intimidation by developers who are seeking to frustrate, we would argue, the proper course of law.

Mr Slaughter:  In relation to the effect of clause 56—I guess this question is for Mr Walker, really—our explanatory notes to the Bill state:

“This clause does not require all cases which may be argued to relate to the environment to be excluded.”

I have yet to work out what that means, other than perhaps we need to wait for regulations. If you are unable to deal with that now, I would value your thoughts on it in writing. It seems the clause is designed to deal with all matters under Aarhus, rather than with all environmental cases, and therefore the note is somewhat worrying. It is at the bottom of page 64 of the explanatory notes.

Angus Walker: I had not focused on that section.

Mr Slaughter:  Yes, I’m sorry.

Etc ....many many committee stages later which are eaten up with the many other matters apart from Judicial Review that the bill is meant to deal with we come to this strange exchange...

Mr Slaughter:  Yes, I will be brief actually. I really cannot see the point of this. In relation to wasted costs, the clause says:

Where the court exercises a power under subsection (6) in relation to costs incurred by a party, it must inform such of the following as it considers appropriate”.

At the moment courts have, quite properly, discretion in relation to wasted costs. If they cannot have discretion on that, one has to ask where do they have discretion. What is the clause’s effect? Is it simply to restate that discretion, or to give the courts a nudge towards something that otherwise they might not do, or to give them a strong recommendation on not just making an order for costs, but reporting the offending party to the regulator or the director of Legal Aid Agency? I ask the Minister to explain which of those the clause intends to do, and then to explain the purpose or point of the clause. At the moment, we cannot see any reason for supporting it at all.

Mr Shailesh Vara (Parliamentary Under-Secretary of State for Justice)The clause forms part of the wider judicial review measures in part 4 of the Bill, which, among other things, intend to address the pursuit of weak cases that overburden public services and delay the progression of meritorious judicial reviews. The amendment would afford the court discretion to decide whether to notify the regulators or the Legal Aid Agency where it considers it appropriate to do so. The proposed amendment is unnecessary as the clause already gives the court discretion on whether it notifies the regulator and/or the Legal Aid Agency. I hope that the Opposition Members can be reassured, so let me briefly explain.

Wasted costs orders make a legal representative personally liable for costs of litigation incurred as a result of their improper, unreasonable or negligent behaviour. Despite such conduct amounting to a breach of duty to the court, there are currently no further formal consequences for the legal representative at fault. The Government’s view is that the implications of receiving a wasted costs order should be strengthened so that legal representatives are encouraged to consider more carefully the decisions they make both in handling claims and in deciding whether to pursue a case.

To be clear, the duty introduced by clause 36 requires the courts, where appropriate, to notify the relevant bodies when a wasted costs order is made. That mandatory requirement—the “must”—goes no further than requiring the courts to notify when they consider it appropriate. The discretion the amendment seeks to introduce is already in the clause as drafted. The question of whether it is appropriate to make such a notification will remain a matter for the court to determine, based on the facts of a case.

The Government are clear that the courts should consider making a notification in all cases in which a wasted costs order is made. We are also clear that it would not be proportionate to require automatic notifications and fully agree that whether or not a notification should be made is a matter for the courts to consider, based on the facts. Clause 36 has been drafted to achieve this and I ask the hon. Gentleman to withdraw his amendment.

Mr Slaughter:  I am not sure what the phrase,

“it must inform such of the following as it considers appropriate”,

does to change the status quo. I am not sure whether this does a great deal of damage, other than perhaps being slightly confusing. With all due respect to the Minister, his explanation did not make me any the wiser. I suppose we ought to vote against the clause for the sake of clear and concise legislation, but I shall not press it to a vote in order to make some progress. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.  Clause 36 ordered to stand part of the Bill in the cause of "progress".  Yet another committee session later and Mr Vara and Mr Slaughter are at it again.  Mr Slaughter outlines his problems with customary brevity

Mr Slaughter:  We now come to part 4. It may save some time if I take a few minutes now to explain how the Opposition wish to deal with this, the last major part of the Bill and, to our minds, the most important part. That is not to say that we have not had important debates so far. We had a wide-ranging debate on secure colleges; it went further than bricks and mortar and was really a debate about the whole future of youth justice and the youth estate. We are sceptical about that and are obviously willing to engage with the Government on it. We are very concerned about the recklessness of the Government’s continued engagement with a cartel of private companies.

We are very worried about the increases in secret justice, whether that involves leapfrogging appeals from the Special Immigration Appeals Commission or magistrates courts sitting in private; we are worried about extending the principle of full costs recovery to the criminal courts as well as the civil courts; and we are concerned about the issue of prohibited conduct, although I have said that the Minister has been generous enough to say that he will look at that again.

That said, thus far the Bill is not exactly one of those great radical pieces of legislation. It will be remembered more as one of those criminal justice Bills that the Government introduce to fill up space in an increasingly empty legislative programme and even to stretch across two Sessions, but part 4 is significant. We heard in the evidence sessions that at times the Government seek to play down the significance by saying that the concessions that have been made—there have been some, such as the one on standing—mean that the changes are, in effect, technical or minor changes that will not affect the overall thrust of judicial review as an important tool of administrative law. We reject that.

The alternative view, which the Lord Chancellor has been playing up again this week in speaking to the Constitution Committee in the other place, is that judicial review actions are somehow politically motivated. He conjures up left-wing phantasms, which he says produce unnecessary judicial reviews to thwart the legitimate political process. That is summed up in the first sentence of the Government’s response to the consultation, in which the Lord Chancellor said:

In speaking to clause 50, I hope to show how misconceived that view of judicial review is. Perhaps it is wilful blindness or perhaps the Secretary of State understands the function of judicial review and simply chooses to ignore it, but this is a dangerous course that we are embarking on, and part 4 of the Bill deserves to be taken very seriously.

The clauses form a package. Clauses 50, 53 and 54 are the most invidious—I will speak to clauses 51 and 52 as well—and they cannot be judged on their merits outside the other restrictions on judicial review, which seem to happen almost every month. We had the restrictions on the planning cases, which were debated in a Delegated Legislation Committee only because the statutory instrument was prayed against last year.

It means that, in planning cases, proceedings have to be brought within six weeks, which is clearly difficult, particularly for the type of organisations that tend to bring judicial reviews in planning cases.

We had new fees and restrictions on renewing applications, and last Friday the new limitations on the availability of legal aid were published. New clause 23 deals with part of that—not the substance of the regulations, but the fact that we should not be having regulations at all on this matter. The matter ought to be in the Bill. It is part and parcel of the sustained, cumulative attack on judicial review.

We can judge the opposition to the Government’s proposal from the evidence sessions. We heard from some of the most eminent practitioners in the country, not only professional bodies such as the Law Society and the Bar Council, but intervening groups and non-governmental organisations such as Justice, Liberty and the Public Law Project, which are considered to be the ultimate authority in the area. We also heard from the Constitutional and Administrative Law Bar Association, Nicola Mackintosh, Nick Armstrong, Adam Wagner, Michael Fordham and Angus Walker, who are some of the leading exponents.

We heard from many of the groups that had been involved in some of the seminal judicial reviews, including the trade unions, the Howard League in relation to prisoners, Shelter in relation to homelessness, and the Campaign to Protect Rural England in relation to planning applications. They were all absolutely united in the view that there would be a severely deleterious effect on the process of administrative law in this country.

The Minister cited one person, I think. It was at Justice questions when it was put to him by my hon. Friend the Member for Wythenshawe and Sale East that we had heard from 17 leading experts in the field of judicial review, and not one had had a good word to say for the Government. That is extraordinary, given that most of the witnesses—certainly the lion’s share—are selected by the Government to give a view of the issue across the piece. The response from the Minister was:

he will find that one of the very last people to speak—I am thinking of only one person who comes to mind—said that the reforms would be helpful for development.”—[Official Report, 18 March 2014; Vol. 577, c. 631.]

I am not sure that the Minister helped his case by saying that there were 17 for and one against. I went back to look at the evidence from that gentleman—a very pleasant and honest individual—and he said:

“I have only had sight of the Bill. I have been dealing with the consultation paper and I am attending at late notice”.––[Official Report, Criminal Justice and Courts Public Bill Committee, 13 March 2014; c. 150, Q341.]

Mr Vara:  I do not have the precise text with me. The hon. Gentleman is true to form in being selective with his quotes. If he reads the text, he will see that the gentleman concerned said that he broadly supported the measures.

Mr Slaughter:  I absolutely agree with the Minister.

Mr Vara:  I am grateful to the hon. Gentleman for agreeing with me.

Mr Slaughter:  I absolutely agree, but the gentleman did so from a position of ignorance. When we weigh the evidence in the scales, we have people such as Michael Fordham QC, who told us that his practitioner book on judicial review is in its sixth edition, and the director of Taylor Wimpey who said, “I haven’t read the Bill and have come here at the last minute to fill in for somebody else.” If the Minister wishes to pray that in aid, so be it.

Robert Neill (Bromley and Chislehurst) (Con):  Does the hon. Gentleman think that the directors of major public companies may be a little more in touch with the economic realities of the abuse of judicial review, which we sometimes see, than those who are part of the industry that has grown up around it?

Hon. Members:  Hear, hear! 

Given that while it is technically possible for pages on the Pear Shaped site to go on forever it might be desirable to try to precis events in committee a tiny bit in order to prevent our gentle readers from falling asleep ... suffice to say that Mr Slaughter has so many objections to the bill that it is impossible to list them even here so I have put at least some of them in this textbox:

Mr Slaughter:  This is probably rather late in proceedings to make a declaration, but I do believe in transparency. I should perhaps say that I am a non-practising member of the Bar. I am a member of the Unite and GMB trade unions, neither of which I have had any contact with in relation to the Bill, although I am most grateful, as I am sure the hon. Gentleman is, for the helpful briefings and evidence given by the PCS union and the TUC. Other hon. Members may make references as they wish in their time. I am proud that I am a member of all those organisations, even the Bar Council.

The Chair:  Order. I fail to see what any of this has to do with the amendments under discussion. May we please now return to the Bill?

Mr Slaughter:  Absolutely, Sir Roger. I said that because of the overwhelming weight of opinion in relation to these clauses. We have talked about the witnesses giving evidence and we have also had the benefit of evidence from the UN High Commissioner for Refugees, Citizens Advice, Immigration Law Practitioners’ Association, Friends of the Earth and the Coalition for Access to Justice for the Environment. That is a completely eclectic range from across politics and different specialisms; it is not just practitioners—lawyers speaking on behalf of the law—but people who have earnestly and justly sought to represent aggrieved constituents or claimants.

We heard, in particular in the evidence of Nicola Mackintosh and Nick Armstrong, that in many judicial review cases the applicants are vulnerable people. That happens in immigration, prison and community care cases. Some cases are more sympathetic than others, but those people all have the right to have their case heard before the courts, which is what the Government are seeking to prevent.

The Government’s consultation attracted 325 responses, and I had a look at where the balance lay. It was about 10:1 against with respect to clause 50. It was slightly more than 10:1 against in relation to protective costs orders, and about 6:1 against with respect to interveners. It has become commonplace that the Government—and the Department and the Secretary of State in particular—wilfully ignore the evidence that is presented to them. The decisions that have been made are based on political gut instincts. The Secretary of State’s allegation in a Daily Mail article that the purpose of judicial review is to provide a platform for left-wing campaigners was an absurdity. I am in no doubt that the clause will receive attention when it goes to the other place, because I read Lord Pannick’s article in The Times.

I am glad that the amendments are grouped together. Amendments 135, 136 and 140 deal primarily with discretion; they would allow the court to show discretion, replacing “must” with “may”. Amendments 137, 139 and 142 effectively would reinstate the current test, going back from the “highly likely” test to the inevitability test. For the avoidance of doubt, although I should be happy for any of those routes to be taken to improve the clause, I intend simply to vote against it wholesale. I see no merit in it, and neither, from what I read, can almost anyone else.

Lord Pannick said in his article in The Times:

Clause 50 of the Criminal Justice and Courts Bill has the purpose and effect of restricting judicial review, one of the cornerstones of the rule of law. The proposals should alarm all those concerned to promote high standards of government.

Clause 50 provides that courts and tribunals must refuse to allow a judicial review application to proceed to a full hearing if the defendant shows that it is ‘highly likely’ that the outcome for the applicant ‘would not have been substantially different if the conduct complained of had not occurred’. If the case does proceed to a full hearing, the court must refuse any remedy to the applicant if that same test is satisfied.

The proposal is objectionable for constitutional reasons. The clause will instruct judges to ignore unlawful conduct and to do so in a context where the government itself is the main defendant.

Lord Pannick continued:

The proposal is also objectionable because it fails to understand that judicial review is not just concerned with the narrow interests of the individual claimant. Judicial review serves the public interest by exposing systematic breaches of legal requirements. Because judicial review exposes errors of law and abuses of power, it encourages high standards of government administration…and deters such defects in the future

He added:

the law requires administrative bodies to adopt a fair procedure not just to ensure that the right conclusion is reached on the merits, but also to ensure that the subject of such a decision is not left with a sense of injustice.

Lord Pannick quoted the South African constitutional court as saying that a similar proposal in that country

conflates the different and separate questions of unlawfulness and remedy”.

He utterly refuted and rebutted the Lord Chancellor’s comments on left-wing campaigners and pointed out that the senior judiciary said in their response that they found no

evidence of inappropriate use of judicial review as a campaigning tool, and it is not the experience of the senior judiciary that this is a common problem.”

I do not think that one could set out more succinctly why the clause is both unnecessary and a very dangerous precedent to set. Let me explain in a little more detail what the negative effect of the clause will be. We have had many briefings on this subject, but I am particularly grateful for those that Justice and Liberty have provided to the Committee. I hope that members of the Committee had a chance to look at those briefings, as well as the evidence that we were given. I will not take too much of the Committee’s time to quote copiously from those documents...

Mr Slaughter then quotes copiously from those documents...

Let me briefly summarise the arguments. Liberty says:

“Under the current approach, when a court is satisfied that the outcome of a decision would ‘inevitably’ have been the same if the defect complained of had not occurred, it can refuse to grant the remedy sought…A JR”—

that is, a judicial review—

“can be brought on the grounds that the decision made by a public body was procedurally incorrect. Historically, a procedurally incorrect decision was known as one which breached the rules of natural justice. The two elements of procedural correctness are the rule against bias and the duty to act fairly…This ground of review sums up the essence of JR and why it matters. Concerned not with the outcome or the merits of the decision, it reflects the fundamental importance of lawful, transparent and fair decision making by those exercising public powers. The repercussions of arbitrary or biased decision making are felt widely, undermining confidence in public bodies and driving down standards. Even where individuals are not satisfied with the outcome of a decision-making process, the fact that they have been given a fair hearing often serves to satisfy their sense of justice and promotes trust in state institutions and democratic processes…Do we really want to suggest that the process by which executive decisions are made is…of little consequence? If a poorly performing public authority randomly stumbles on the right answer without process or reason, does the Lord Chancellor really believe there is no cause for judicial oversight?...This…alters the nature of JR. It forces the judiciary to move away from pronouncing on whether the decision was legally correct and properly taken, and instead asks them to place themselves in the position of the decision maker. It fundamentally undermines the purpose of JR, which is to test not for outcome but for compliance with law and process.”

That is a key point, for two reasons. The first is that there is a fundamental misunderstanding, which is clearly in the Lord Chancellor’s mind and perhaps in the Minister’s mind too, of what the function of judicial review is about. It is not about the decision that is taken; it is about the process for making that decision. In seeking to limit the access to judicial review, by introducing the “highly likely” test, the effect will be exactly the opposite of what the Government intend. The effect will be that the judge will now have to stand in the shoes of the decision maker. They will have to enter the political forum, and they may have to do so at an early stage—that is to say at the permission stage. Therefore we have the absurdity, first, of effectively having a full trial at a preliminary hearing, and, secondly, of having a trial on a matter that the court does not wish to hear and is not probably not competent to hear—that is to say, on what the merits of the decision will be.

This is so wrong that it is a wonder to me that we have got this far in the process. Liberty continues:

“There was no evidence adduced to support the claim that courts exceed or confuse their jurisdiction in JR processes…Requiring judges to consider the merits of a decision rather than the so-called ‘technicalities’ of the process is constitutionally inappropriate.

In a democracy under the Rule of Law, it is imperative that public bodies are required to behave in accordance with the law. JR is a mechanism for testing legality in a particular case but also helps to create an environment in which public bodies know that consequences will follow if they act with disregard for the law. Completely removing the discretion for judges to grant relief in cases where a ‘no difference’ argument has been made out—regardless of the nature of the conduct of the defendant—by requiring the court to refuse any relief, removes a key incentive for public bodies to exercise their powers properly…Removing the clause from the Bill would not mean that ‘no difference’ arguments cannot be made, but would mean that public bodies would operate in the shadow of the courts, knowing that if they do not follow the rules of natural justice then they will be liable to account for it.”

That turns on the misconceived point about the role of Parliament. Judicial review is a review by the judiciary of the Executive. It is part of the constitution. It is part of the separation of powers. That is not to say that there can never be changes in the process. It is not right to say that the Opposition or practitioners oppose improvements, changes and efficiencies. Indeed, when Mr Fordham gave evidence he referred us to the Bingham Centre report, “Streamlining Judicial Review in a Manner Consistent with the Rule of Law.” That included 25 separate recommendations for improving issues of cost and efficiency. One of them is dealt with in new clause 16. As far as I know, the Government have shown no interest in those recommendations. This is simply about establishing that it is a political process and not one that is designed to improve the performance of the court.

The Bingham Centre, a well respected think-tank, quotes the Master of the Rolls on exactly the matter we are dealing with in the clause. It says:

“We think these proposals are objectionable in principle. In our view, there are constitutional objections in dictating to courts that they should condone what they assess to be a material public law unlawfulness. The courts’ careful calibration of the ‘materiality’ principle involves asking whether ‘the decision would inevitably have been the same’, and there are reasons of principle why ‘the court should be wary of refusing relief on the grounds that the decision-making body would reach the same decision if it were to act lawfully’, remembering always the importance of ‘the maintenance of the rule of law itself and the constitutional protection afforded by judicial review’.”

What the Government are doing here was described by Mr Fordham in his evidence as, in quite a memorable phrase, “a constitutional provocation”. That is exactly what it is. In the circumstances that we are discussing, it is the role of Parliament not to assert its authority over the courts but to temper the instinct of the Executive to intervene where the judiciary is quite properly acting. That is another important point about clause. The Government are acting in a self-serving way. Unlike in many other areas of Government action, whether we agree them with or not, the clause and the other clauses in this part of the Bill serve to protect the Government from proper scrutiny.

Further evidence states that

“the constitutional importance of judicial review places a significant responsibility on reformers to justify the need for change and to ensure that adequate safeguards are in place to preserve access to justice, accountability and good administration. Parliament should ensure that the Government takes this obligation seriously”,

and that

“no reliable evidence has been produced to support the Government’s claim that judicial review is open to abuse or that an expansion in the use of judicial review is such that significant restriction is necessary.”

The concerns are not primarily about cost. The saving is estimated to be at most about £6 million. I do not think the Government say that that is their main motivation, and it ignores any disbenefit for the taxpayer that may result. The Bingham recommendations look across the piece at the way judicial review operates, procedurally and as far as respondents and applicants are concern.  All the clauses in this part of the Bill bear down on individuals bringing judicial review, and they are designed to deter or prevent claims against the Government or public agencies and to restrict the discretion of the courts to control litigation.

I am conscious of the time, Sir Roger. I could say a great deal more about the clause, but others may wish to speak. There are a number of ways to remedy the defect that I have mentioned. One would be simply to amend the clause to leave the position as it is now, because the courts have ample power to regulate their own business, to discourage unmeritorious claims and, by cost penalties or directions, to ensure that judicial review proceeds in a proper fashion. The simplest way would be to make the clause discretionary rather than compulsory. However, the most sensible thing would be to get rid of it and the following clauses altogether. My intention, subject to what I hear in the rest of the debate, is not to press any of the amendments to a vote, but to vote against the clause.

and on and on and on... if you've found this page as boring to read as I have to write just bear in mind that these are just the Commons Committee stages not the Lords Committee stages.  If parliamentary awards are going for saying the same thing in as many different ways as possible one must surely go to Mr Slaughter.  I particularly enjoyed:

Mr Slaughter:  Yesterday, the Prime Minister held a party for the 799th birthday of Magna Carta. He said that it was the foundation of all “our laws and liberties”, and made us citizens not subjects, with “rights, protections and security”. He is right about that. Later this afternoon, we will debate new clauses on sentencing for a second offence of possessing a knife. The Deputy Prime Minister objects to that proposal, partly because it includes minimum sentencing, which carries “a serious risk it could undermine the role of the judges...

...In part 4 of the Bill comes the coup de grace—a frontal assault on the key legal remedy of judicial review. Alongside new fees, cuts in legal aid and shorter time limits, the cumulative effect of the proposals in the Bill is to hobble the principal method by which the administrative court can prevent unlawful conduct by the state in the way in which it, in all its manifestations, makes decisions.”.

Politicians discussing Constitution Reform cannot say the words Magna Carter enough.  In the same Martin Bayfield discussing World's Strongest Man
cannot say the words Lactic Acid enough.  Wasted breath however ... Mr Cameron couldn't even explain the meaning of the words in the document when he appeared on Letterman.



Photo Credits
Fallen off the back of the Internet

Text Credits
Pilfered from Hansard