Clause 15
Tribunals, Courts and Enforcement Bill
1:15 pm

Henry Bellingham (Shadow Minister, Constitutional Affairs; North West Norfolk, Conservative)

We are now moving into an important part of the Bill, which relates to judicial review. I do not want to anticipate some amendments that I have tabled to clause 22, which I feel are very important, but I want to set the scene and to point out  to the Minister that judicial review is an important part of our jurisprudence and whole legal system.

Any student at the Bar or trainee solicitor is taught about judicial review from the earliest stage. It is a vital part of our law and this piece of the Bill has to be regarded in that context. Will the Minister say a bit more about how the judicial review process will work and give us a little more detail? How often does she expect it to be used? I do not want to go into the detail of what we will discuss on clause 18, where we will consider the limits of jurisdiction, but clause 15(1) sets out exactly what the power will be and what kinds of relief will be available under judicial review. I do not want to anticipate my amendments to clause 18, because they are the ones that we feel strongly about. However, all these clauses are of profound importance and I am anxious that we should not let them go by without some explanation from the Minister. I would be grateful if she could give that.

Vera Baird (Parliamentary Under-Secretary, Department for Constitutional Affairs; Redcar, Labour)

Essentially, the point of enabling the judiciary to transfer cases from the normal judicial review jurisdiction into the upper tribunal is to harness the expertise that is likely to be available in that forum on the special kinds of business that the tribunal system takes care of. The provisions do not remove or resist judicial review, but make it possible for selected judicial reviews that would normally be heard before the High Court to be dealt with in the upper tribunal. The powers will be the same as those of judicial review, so the fact that it is in the tribunal system does not mean that there will not be the power to grant mandatory orders, prohibition, quashing orders, declarations or injunctions. The hon. Gentleman will recall from Second Reading that the range of judiciary available to deal with quasi-judicial reviews in the upper tribunal is restricted to the High Court and those approved by the chief justices.

We expect the power to be used comparatively rarely—dozens of times at most and certainly not in large numbers—and that its use is likely to be confined to technical situations that would be better dealt with by technically expert people.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)

The Minister is right, as is the hon. Member for North-West Norfolk. This is an important development, which I do not resist. Can the Minister say whether it is expected that this will be a quicker procedure and, as many assume, a cheaper one? When thinking about judicial review, people are always concerned about the potential cost implications and the delay. There is a linked question which, although we may debate it later, is relevant to this set of clauses, of which clause 15 is the first. Will legal aid be available for judicial review proceedings in an upper level tribunal, as it is normally available for a judicial review in the High Court?

Vera Baird (Parliamentary Under-Secretary, Department for Constitutional Affairs; Redcar, Labour)

Will it be quicker and cheaper? One imagines that it will be cheaper, because the informality of the tribunals makes them quicker, generally, than courts. Whether they are quicker depends on listing, the number of cases and the backlog in the upper tribunal. Granted that there is frequent discussion about shortages of judicial manpower in the High Court, one imagines that it is likely that cases could be  heard more quickly. However, I cannot say more than that. I am told that judicial reviews are being got to court quite quickly now. That is not what it used to be like. I can give no promises as to whether the process will be quicker, but it ought to be cheaper.

The hon. Member for North Southwark and Bermondsey asked me about legal aid. That is an important point. There is not, on the face of it, a right to legal aid in the tribunal system. I have raised that matter and I will write to the hon. Gentleman, if I may, with a more comprehensive answer. There are situations where it is probably not necessary, but there may still be situations that he would continue to be concerned about, so I shall write to him.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)

I am grateful for the Minister’s generically helpful answer. I have experience of, and am involved at arm’s length with, a judicial review application at the moment on a Government decision to close the 24-hour emergency clinic at Maudsley hospital. The application was made some weeks ago and nothing has happened yet, so my honest view is that judicial reviews do not always swing into the courts on the next day after the application—although some may be quicker.

This is an important matter. The presumption should be that a judicial review for somebody who does not have the resources should be legally aided, whichever tribunal is dealing with the matter. Depending on the Minister’s answer, we would be keen to reserve the right to return to this matter. There is general concern about some important cases currently in tribunals. I hope that we can reach agreement and, if not, I give notice now that we may be able to work together to achieve an amendment on Report that would deal with the concerns.

Vera Baird (Parliamentary Under-Secretary, Department for Constitutional Affairs; Redcar, Labour)

There are always applications with exceptional circumstances where ministerial discretion should be exercised. Certainly, if I were being asked to exercise such discretion in respect of an important technical case, one would expect it to be exercised benevolently. It is not a desert at present.