Clause 50 - Likelihood of substantially different outcome for applicant

Criminal Justice and Courts Bill – in a Public Bill Committee at 11:30 am on 27 March 2014.

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Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice) 11:30, 27 March 2014

I beg to move amendment 135, in clause 50, page 52, line 3, leave out ‘must’ and insert ‘may’.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Full Member)

With this it will be convenient to discuss the following:

Amendment 136, in clause 50, page 52, line 5, leave out ‘not’ and insert ‘choose not to’.

Amendment 140, in clause 50, page 52, line 19, leave out ‘must’ and insert ‘may’.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

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:

“I believe in protecting judicial review as a check on unlawful executive action, but I am equally clear that it should not be abused, to act as a brake on growth.”

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.]

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice 11:45, 27 March 2014

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.

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

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

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

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.

Photo of Bob Neill Bob Neill Parliamentary Assembly of the Council of Europe (Substitute Member), Vice-Chair, Conservative Party

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!

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Full Member)

Order. In the circumstances, we should not be inclined to go too far down this road given the nature of the reason why a replacement was inserted at the last minute.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I make no criticism of the gentleman concerned. He did his best in the circumstances and he said what he said. However, I disagree with what the hon. Gentleman says. I am holding an article from The Sunday Times headed “Wimpey director wrote Tories’ new planning law”. It says:

“Senior figures in the health building industry—including an executive from Taylor Wimpey—were recruited by the government to draft new planning rules that pave the way for thousands of homes on greenfield sites.”

So, yes, he certainly has some purchase on the issue, but what the motives of the major house builders and major developers may be in opposing the proper administrative scrutiny of decisions that are made on planning matters, I will leave hanging in the air.

Photo of Bob Neill Bob Neill Parliamentary Assembly of the Council of Europe (Substitute Member), Vice-Chair, Conservative Party

Perhaps, in the same spirit of transparency, the hon. Gentleman can tell us which trade unions have helped him with his briefing notes.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Full Member)

Order. Until now, our proceedings have been reasonably seemly, and I would prefer to keep it that way.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

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.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Full Member)

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?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

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, but they are all evidence before the Committee and individually and collectively they produce a compelling case to show why this clause in particular should not stand part of the Bill.

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 concerned.  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.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Full Member) 12:00, 27 March 2014

Before we proceed, I will say that I am going to treat this as a stand part debate, which means there will be no stand part debate at the end of the debate on the clause. Hon. Members on both sides of the Committee may wish to bear that in mind when discussing these amendments and the next group. That should give more than adequate scope for the necessary discussion.

Photo of Valerie Vaz Valerie Vaz Labour, Walsall South

It is a pleasure to serve under your chairmanship, Sir Roger.

We come to an important part of the Bill that goes to the heart of the relationship between the citizen and the state, and how it has been curbed. Over the past three weeks we have discussed, debated and listened to witnesses talk about this important Bill, but from reading the papers one might think that the only important things happening are that Kate Bush is on tour and that Gwyneth Paltrow and Chris Martin are going through a “conscious uncoupling”. But we know how important the Bill is because we have been working hard on it.

My concern is that the Government are getting a reputation for being authoritarian, wanting to stifle due process and calling people names if they object—some of the witnesses were called left-wing. The Bar Council and the Law Society are not hotbeds of radicalism but independent bodies that have to focus their attention on what happens to their members and how they can assist them. I have no idea what their politics are, but we need to hear their views because they are the practitioners who will have to work through the proposals. The clause strikes at the heart of the ability to hold decision makers to account. The Government are asking judges to look behind and interfere with decisions, but that is not their role.

I will set out what Parliament and the different arms of Government do. Parliament passes legislation and gives the Executive—the Government of the day and their staff—the power to put those laws into effect, and judges look at whether that power is exercised in a lawful way. That is the golden triangle: the judiciary, the Executive and Parliament, each with its specific constitutional role. The clause and others in part 4 seek to bind the judiciary and instruct them how to operate.  The judiciary are not experts in the fields in which those decisions are made; their role is only to review the lawfulness of the decision. As Lord Bingham put it:

“They are auditors of legality”.

There is nothing malevolent about judicial reviews. I have gone through many myself—even on behalf of the Government. It is irritating to have to make a decision again because it is flawed, but it is right that the judiciary do not overrule Parliament. All the judiciary do in a judicial review is to look at how the decision was made and whether it is within the law. Lord Reid pointed out that judges do not look behind what Parliament wants, but seek

“the meaning of the words which Parliament used.”

If the Government included the clauses to curb excessive judicial review, I ask for evidence of that. The clauses are not based on evidence. The figures from the Ministry of Justice are clear: from 2000 to 2012, criminal JRs increased from 336 to 358—a rise of only 22 over 12 years. Civil JRs, other than immigration and asylum cases, increased from 1,752 to 2,118—an increase of only 366. There has been an increase in immigration and asylum cases—from 2,150 to 9,958—but they are going to be moved to a separate tribunal. However, perhaps the increase is down to the fact that there are not enough staff at UK Visas and Immigration or the UK Border Agency—however it is styled now—to review those decisions. Having taken some of those cases, I know that some of the evidence before the decision makers is horrific. Now there are two pairs of eyes to ensure that the decision is taken correctly at UKVI.

There is more conflict around the world, and quite rightly people are looking to Britain as a place to seek a safe haven. However, it is right that Britain ensures that their cases are dealt with on merit, and that spurious cases do not come through. That is what happens.

What about “totally without merit”? The Lord Chancellor has said that many judicial reviews are “totally without merit”, but judges decide that now. When they refuse permission, they can certify that a case is TWM. From 1 October 2012 to 30 September 2013, the proportion of cases certified as TWM was 31% for immigration and asylum cases, compared with 14% for civil cases. Judges have also started the practice of certifying cases and making orders to say that people may appeal from abroad, so there is no bar to deportation.

In my view, Parliament should not be telling judges how to run their courts. That is for the procedure committees and rules committees to do. Courts consistently issue practice directions when they feel that cases are not being run properly. The Government must consider carefully whether they want to embark on a constitutional collision course, as many witnesses told us. I hope not, so I would ask the Government to remove the clause from the Bill.

Photo of Sarah Champion Sarah Champion Labour, Rotherham 12:15, 27 March 2014

I rise to support the amendments tabled by my hon. Friends the Members for Hammersmith and for Barnsley Central. I would like to share my experience of judicial reviews, based on the recent case concerning the Liverpool city and South Yorkshire regions, which has a direct influence on my constituency in Rotherham.

As a precursor, I accept that the number of judicial review cases has risen, as outlined by my hon. Friend the Member for Walsall South. However, I am not certain that the revisions to judicial review will give a fair outcome to parties seeking review. I will focus on clause 50 and the proposal that the likely outcome will be assessed as part of the process leading to a judicial review being granted, rather than the legality of the process itself leading up to said outcome.

In the case of the South Yorkshire and Liverpool regions, on 7 February 2014 the two regions won a High Court action, which concluded that cuts in European funding were unlawful. Lawyers bringing the action argued that the reduction in funding—a significant 65%—was disproportionate compared with other areas. Evidence presented to the court showed that Ministers allocated €150 million less to Liverpool city region and almost €90 million less to South Yorkshire than they had estimated their share to be. That would have meant that, over the next seven years, the funding to Liverpool city region would be €147 per head of population, compared with €380 under the previous funding round from 2007 to 2013.

A judicial review case was filed in September 2013, and it was deemed that the process, rather than the outcome, was out of order. In the High Court order, the judge requested that the Government adjust their allocation of funding from Europe, as the calculation method used to distribute a total of €110 billion in the European regional development fund and the European social fund was flawed. Had the decision not been challenged, the funding that was originally to have been allocated to Liverpool city region and South Yorkshire would have been spread across other regions.

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

The difficulty, of course, is that we will never know what would have happened in the case had clause 50 been in place. The Government, already having a series of funding arrangements in mind, would have been likely to grant the same levels of funding to South Yorkshire and Liverpool regardless of the process under which the funding allocation was decided. If it had been deemed that South Yorkshire and Liverpool would have been likely to receive the same amount of funding at the application stage, their application would have been taken no further.

To be clear, in the South Yorkshire and Liverpool case, my suspicion is that the likely outcome would have been assessed as being the same regardless of the flawed process. The case might have been unable to progress from the beginning, meaning that up to 3.6 million people would not have been able to access funding worth tens of billions of euros. Such considerations and the predictions of likely outcome will now become part of the law under the clause.

I have no doubt that in some areas the clause will tighten up judicial reviews that are regarded as wasteful, but at the same time I strongly believe that the case that I have mentioned would not have made it to court if the clause had been used to evaluate it. Was the process  flawed? Yes. Is the outcome likely to be similar? Perhaps, yes. Does that mean that the people of Liverpool city and south Yorkshire regions should not be afforded the opportunity to challenge? No. In the slim chance that the outcome would have changed for them in taking the case to the courts, the two regions would have been immeasurably better off. It is only right that the people of those regions are allowed to challenge the decision.

A faulty process often leads to a flawed decision and, even if the outcome may have been the same, we need to consider those rare few cases where the outcome is predicted to stay the same, so that judicial review is not granted yet the outcome is then prevented from changing. However, by agreeing to the clause in its current form, we will prevent case law from forming based on the one in 100 cases where the outcome might have been predicted to stay the same but in fact, did not stay the same. We are taking the powers of the formation of case law away from judges and are instead putting the power of decision making into the hands of people less experienced in making those decisions.

It is right to state that the number of judicial review cases is worryingly high and that the system may be being exploited in some cases—and that those cases may cost the state—but I implore the Minister to look at the case of Liverpool city region and South Yorkshire as an example of why the clause is flawed. We must allow flawed processes to be challenged, so that the people involved in cases where an outcome becomes different are granted that outcome, rather than having it snatched away from them before it even goes to court.

Photo of Bob Neill Bob Neill Parliamentary Assembly of the Council of Europe (Substitute Member), Vice-Chair, Conservative Party

It is a pleasure to serve under your chairmanship, Sir Roger. I shall be brief, because there is a lot of business to get through.

First, with respect to Opposition Members, their suggestion of some fundamental threat to judicial review as a concept is seriously overstated. A number of witnesses conceded that, ultimately, there is an issue of fact and balance about where the line is drawn in judicial review cases, and the Secretary of State has recognised that in some of the changes that he has made. This is not about abolishing judicial review; it is about reviewing where the appropriate balance lies between what is sensible and practical and the right to challenge decisions. That is a legitimate thing for any Government to propose to Parliament for it to decide on.

Secondly, judicial review is an important part of our public law system—nobody doubts that—but it is a comparatively recent development in the history of our jurisprudence, certainly in its modern format. We have always had the certiorari and mandamus orders, but anybody from the period when I was qualifying at the bar will remember that they were used sparingly. It is only since the judgment of Lord Denning—against a Labour Government, ironically—in the mid-’70s that there has been significant growth in the current form of administrative law. This is not hacking away at Magna Carta, as is sometimes said in a rather exaggerated fashion.

We have often talked as if judicial review were exclusively a challenge to the exercise of the Executive, in the form of the national Government, but that is not so. When I was Local Government Minister, and when I was a local  councillor, it struck me that, often, democratically elected local authorities were on the receiving end of judicial review cases, some of which were unmeritorious. The burden of an unmeritorious judicial review upon a local authority can be harsh, particularly if it is one of the smaller district councils.

Photo of Valerie Vaz Valerie Vaz Labour, Walsall South

John Gallagher from Shelter said that homelessness decisions are the only ones that can be dealt with by judicial review.

Photo of Bob Neill Bob Neill Parliamentary Assembly of the Council of Europe (Substitute Member), Vice-Chair, Conservative Party

With respect, perhaps the hon. Lady could have waited until I had developed the point. Of course, there are sometimes meritorious challenges to local authorities, but my point, which she did not mention in her intervention, was that for a local authority—particularly a small district council that may be a planning authority—the burden, both financially and practically, of an unmeritorious judicial review could be particularly harsh, because it has less capacity to absorb that than a large Department has.

Sometimes, judicial review can be used against the interests of local democracy. One can think of examples in the planning sphere in particular where this has been the case at both ends of the spectrum. Anyone who is acquainted, as I was when I was a Minister, with the Dale Farm planning application for a controversial Gypsy and Traveller site will know that Basildon district council, which was acting in accordance with what was clearly the wishes of its residents in seeking to enforce its planning policy, was put to great expense and the residents of that area were put to real and serious hardship by the continual abuse of judicial review and linked processes in that case. That is the sort of thing that should be dealt with.

At the other end of the spectrum, we often saw quite predatory and well funded commercial development companies challenging refusals of planning permission on greenfield land by local authorities, again acting in accordance with the wishes of their residents, sometimes in accordance with their emerging development plans. There was almost a war of attrition by big developers using judicial review to overturn a policy decision rather than a process decision. I think it is legitimate to ask if we have got the balance right in those sorts of cases.

Photo of Julie Hilling Julie Hilling Opposition Whip (Commons)

Does the hon. Gentleman agree that the measure could be seen to be a sledgehammer to crack a nut? Clearly, in some cases judicial review has been detrimental to an area or to individuals in that area, but the proposed system would make it much more difficult for those who are usually the least powerful to challenge those in power to get the result that is needed. To quote one or two examples is unfair to the whole system of judicial review.

Photo of Bob Neill Bob Neill Parliamentary Assembly of the Council of Europe (Substitute Member), Vice-Chair, Conservative Party

No, I do not accept that. We have had a number of examples quoted where, as the Minister and I have conceded in all our comments, there are appropriate uses for judicial review. We have had some instances of vulnerable people using it to challenge, but there are also instances—a significantly increasing number of instances—where judicial review has not been used for its true purpose, but has been used to unpick policy decisions rather than to correct administrative error.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

Why does the hon. Gentleman not trust the courts to use their discretion, which they do in a robust fashion? Why, as an alternative to the courts, which are the proper bodies to address these matters, does he put the Executive in and allow the Government to set the rules in their own favour? This is a self-serving ambition on the part of the Executive to prevent any dissent.

Photo of Bob Neill Bob Neill Parliamentary Assembly of the Council of Europe (Substitute Member), Vice-Chair, Conservative Party

Unfortunately, the hon. Gentleman did not listen to the point that I was making. This is not purely about the Executive in the sense of local government. The fact is that the Executive does ultimately have a degree of accountability via Parliament, in the same way that a local authority is democratically elected and democratically accountable. It is legitimate to recognise the validity in constitutional terms of local authorities’ situation and that they should not be subject to an abuse of the judicial review process.

The hon. Gentleman’s intervention neatly brings me on to my final point which relates specifically to clause 50 and the change in the test to “makes no difference”. As somebody who practised at the criminal Bar for most of my career, I know that in recent criminal jurisprudence history there has always been the ability, on an appeal to the Court of Appeal criminal division, for the court to decide that it would apply what was called the proviso. Where the Court of Appeal decided that the judge at first instance—the decision maker, in other words—had misdirected the jury and so made a technical error, but the overall weight of evidence in the case was such that the error made no difference to the jury’s conclusion and there was no miscarriage of justice, it could apply the proviso and dismiss the appeal, even though there might have been a technical error in the judge’s summing up and decision making.

If it is acceptable for that ability to apply in relation to an error by judge in the sort of case where the liberty of the subject may be at stake, it is not unreasonable to say that the same practical recognition of reality in the ultimate decision should not also apply in the case of administrative law. The idea that it is possible to say that there was a technical fault that would not have altered the outcome or what we would regard as the justice of the case is a legitimate measure to incorporate into public law, as it is already incorporated into our criminal law.

Photo of Mike Kane Mike Kane Labour, Wythenshawe and Sale East 12:30, 27 March 2014

I was not angry until I came to this place and heard the speech from the hon. Member for Bromley and Chislehurst. Surely it stems from the Aristotelian notion of market, state and civil society: to keep ourselves civilised we should have a strong civil society against the unfettered powers of the market and the state. That can be achieved only through people coming together, which can be done only, as Nicholas Fluck, president of the Law Society, said, if ordinary people can take their cases forward. I cited the case of my constituent, Pat Connor, who took the council to judicial review over the 1985 taxi legislation and the unfair and unjust way it consulted. That is the only way a constituent like Pat Connor could access the judicial system.

Photo of Bob Neill Bob Neill Parliamentary Assembly of the Council of Europe (Substitute Member), Vice-Chair, Conservative Party

I am sorry I provoked the hon. Gentleman. Can I assure him that I have never used any concept of Aristotelian notions to any British jury?

Photo of Mike Kane Mike Kane Labour, Wythenshawe and Sale East

I am glad I could introduce the hon. Gentleman to it. We are all members of mediating associations. We come together, first, to participate in society. That is why I sit on the Labour Benches. I am proud to be a member of the trade unions, Unite and Community, I am proud to be a Stretford Wheeler, I am proud to be a member of Manchester City and I am proud to be a member of the Fianna Phadraig Irish pipe band in my constituency. We come together in mediating institutions to promote society and to make the world a better place to be. There is the world as it is and the world as it should be. It is a slippery slope when the state starts legislating in this way and Governments feel that they must have more power for themselves over civil society institutions.

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

From a debate that started in a relatively quiet and measured way, we certainly had some passion and excitement at the end. I thank all those who spoke in the debate: the hon. Members for Walsall South, for Rotherham and for Wythenshawe and Sale East—he is certainly not wasting time in getting acquainted with the procedures of debate in the House—and my hon. Friend the Member for Bromley and Chislehurst. Although I appreciate the passion with which the contributions were made, I think the matter was probably best summed up by my hon. Friend when he said that the threat is being “seriously overstated”—his exact words. From listening to some of the speeches, one would think that we were scrapping judicial review in its entirety. We are not. We are simply trying to ensure that meritorious applications proceed and unmeritorious ones do not.

Photo of Mike Kane Mike Kane Labour, Wythenshawe and Sale East

I think that Thomas More said that we take these things away one piece at a time, and when it is all gone and things turn on us, how do we face up to power?

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

As the hon. Gentleman is in the business of quotations, may I refer him to his contribution in the Committee evidence session? He raised the question of Plantagenet Alliance Ltd in the context of whether the witness thought that appeal was a good one. It is all very well quoting, but I suggest that one of the lessons the hon. Gentleman might wish to learn as a relatively new Member is that he should remember his own contributions, which are recorded in Hansard.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I am made almost speechless by the double standards of the Minister. Here we hear the other side of the coin—the emollient approach—“Oh, there’s nothing to worry about in the Bill.” In fact, this week in a Committee in the other place, the Secretary of State was banging the drum again:

“Campaign groups are undermining parliament by launching too many court challenges aimed at overturning Government policy and avoiding costs by hiding behind ‘human shields’”.

As for Richard III, the Plantagenet Alliance claim would seem to be meritorious, but now the Secretary of State is wasting a great deal of public money appealing against it.

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

The hon. Gentleman simply does not understand the issue and I am not going to dignify his comments with a reply. If he were to take the trouble to look at the case of the Plantagenet Alliance, he would realise that this is precisely the type of case that we are trying to avoid, where people set up a £100 shelf company, hide behind its veil and it is the taxpayer who loses out. It is money that could be spent for other purposes. My hon. Friend the Member for Bromley and Chislehurst summed it up with the practical examples that he gave.

The hon. Member for Hammersmith spoke of the Fordham report. We are, of course, considering the recommendations in Michael Fordham’s report, which was published last month, but we think that there remains a compelling case to take forward the reforms in the Bill. As for funding and the concerns of the hon. Member for Rotherham about people being refused permission under clause 50, the threshold is still high. If the court considered there was doubt, it would grant permission, as it does now. It would be for the court to consider if the threshold is met.

Various members spoke in terms of statistics. May I give some statistics, which were published only this morning? The use of judicial review has increased more than threefold in recent years, from around 4,300 cases in 2000, to around 15,700 in 2013. Of these, civil judicial reviews have increased by 27%, from 1,745 in 2000 to 2,210 in 2013. In 2012, only about 1,400 of the 7,600 judicial reviews considered for permission or at oral renewal were granted permission to proceed—that is 20%.

Incidentally, for the record I declare that I am a non-practising solicitor and have been so for many years. I should perhaps have made that clear at the outset.

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

I am not a member of any trade union.

Clause 50 modifies how the High Court or upper tribunal deals with judicial reviews, where the matter complained of was highly unlikely to have resulted in a substantially different outcome for the applicant. The clause is designed to bite on errors in procedure that are highly unlikely to have changed the end result. Let me give members an example. In question is an issue concerning a pedestrian crossing; there may be 40 people to whom the issue applies. A particular circular goes into 39 homes, but for whatever reason does not go into the 40th home. Some 30 of the replies from those 39 people are of one view; then the 40th person, who did not receive the form, raises an issue, saying there is an error because she or he did not receive the form and was unable to reply. In that case, when 39 people out of a total of 40 have come to one conclusion, the reality is that one person, the 40th person, whatever opinion she or he may have expressed, is highly unlikely to have changed the end result. That is the type of scenario that we are looking at here. Ultimately, it is for the court to decide on the facts.

After the rhetoric and all the passion has been expended in terms of “Horror of horrors!” it is appropriate that we put matters in perspective and recognise that there has been abuse—and we have heard examples. We are not scrapping judicial reviews; we are putting matters into context and I hope that the example that I have given helps to do that.

Photo of Valerie Vaz Valerie Vaz Labour, Walsall South

I think that the Minister is saying that that one person’s view is not worth the same as everyone else’s.

Photo of Valerie Vaz Valerie Vaz Labour, Walsall South

The Minister is saying that the view would not count. It is a matter for a judge to arbitrate between the state and a citizen and whether the state acted outside the law. Does he not agree with that?

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

I am afraid that the premise of the hon. Lady’s question is wrong. I did not say what she alleges. I said that whatever contribution the 31st person made, it would not make a difference to the final outcome, because 30 people came to one conclusion. That person could become the 31st person to agree with the decision, or there could be 30 people agreeing and one person opposing. Either way, the decision would not change.

I emphasise to the Committee that the clause does not break new ground, but builds on a point established by the courts on where an error would make no difference. We have heard a lot about the clause undermining the rule of law and the role of judicial review, but at its essence is Lord Denning’s dictum in the 1977 case of George v. Secretary of State for the Environment that

“there is no such thing as a technical breach of natural justice”.

It should not be open to individuals or groups to mount challenges on technicalities that would have been unlikely to make any difference to the outcome. Lord Denning was Master of the Rolls when some members of the Committee were at law school reading up on various verdicts in various cases.

At present, the courts will find that there had been no difference made where the end result would inevitably be the same. That is an extremely high threshold which, in the Government’s view, means that judicial reviews can be grounded on technicalities that would in practice have made no difference to the end result or, ultimately, the applicant. That is why the power comes up so rarely, and that is why we want to modify the current approach. Clause 50 does that by requiring the court to refuse permission or a remedy where it is satisfied that the argued ground or grounds for judicial review would be highly unlikely to cause a substantially different outcome for the applicant. I assure hon. Members that, as drafted, clause 50 does not make the exercise of the power in any way routine. That is because the clause applies the standard of “highly likely”. That will remain a high threshold, and where there is any significant doubt that there could have been a difference for the applicant, the threshold would not be met.

The amendments would revise three elements of the clause. The first is the requirement for the court to consider an argument by a defendant that it is highly likely that a procedural defect made a substantial difference. The second is the requirement to refuse permission where it is highly likely that there would have been no difference. The third is the requirement to refuse to grant a remedy where there would have been no difference. The substitution of “may” for “must” in each would mean that the requirement is replaced with an option to do so. That would significantly weaken the utility of the clause in dealing with minor technicalities in a proportionate manner.

Under clause 50, the High Court and upper tribunal will retain significant discretion over the application of the clause. Crucially and properly, the discretion will extend to whether it is highly likely that the procedural defect would have made a difference in any given case, whether there was a substantial difference and whether that difference affected the applicant. Indeed, the term “highly likely” will fall to be interpreted by the courts.

Where the court comes to the conclusion that it is highly likely that there would have been no difference, the Government’s view is that it should grant neither permission, if raised at that stage, nor a remedy. That is entirely in line with Lord Denning who, in the case I mentioned earlier, also held that the court

“should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made.”

Doing otherwise simply continues the recipe for judicial reviews brought on minor technicalities to delay and hinder progress. I remain confident that the clause strikes a fair and sensible balance between limiting the potential for the abuse of judicial review and protecting its vital role as a check on public authorities. I therefore ask the hon. Gentleman to withdraw the amendment.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice) 12:45, 27 March 2014

We have heard some interesting contributions but I am very disappointed by the Minister’s response—the content of it, as much as anything else. He explained what the clause does. We know what the clause does. He did not answer any of the points that were put to him in debate. I wonder what these debates are for if points that are raised are not dealt with. I enjoyed his zebra crossing analogy. It took us absolutely nowhere. There exists a power at the moment for the court to decide on the inevitability principle that a case will make no difference. I do not know whether the zebra crossing examples falls into that. The point is that by introducing this far more subjective “highly likely” test, the court will have to stand in the shoes of the decision maker and will constantly be reviewing and making decisions without the benefit of all the facts, without feeling comfortable doing so and often at a preliminary stage. That is what is procedurally defective about the clause.

The Minister has nothing to say about that at all. What we get is a recital of the same tired, old, incorrect facts. Let us deal with the issue of numbers of judicial reviews and numbers tripling or increasing by 30% or 40%. If the Minister is right—I think I will show that he is not—about an increase from 1,745 to 2,210 in the number of civil cases, that is the number of civil cases dealing with all administrative errors by public bodies in this country. Is the Minister seriously saying that that is a number that is out of control and needs to be constrained? I am shocked, quite frankly, at the paucity of the argument that is being put forward.

I refer the Minister to the submission, CJC 21 from the Public Law Project, which debunks these myths just as his myths about legal aid earning for barristers and the cost of the legal aid system have been debunked. Yet we hear the same canards time and time again. The submission says:

“analysis shows beyond doubt that, leaving aside asylum and immigration cases which are no longer dealt with in the Administrative Court, the numbers of judicial review cases have remained static for the last decade.”

Going back to the point made by the hon. Member for Bromley and Chislehurst, it points out that until O'Reilly v. Mackman in 1983, there was no judicial review process that could be quantified because public law matters were dealt with in another way. We do not know what the volume was at that stage. We do know that there was a substantial increase due to asylum and immigration cases and that matter has been dealt with. With some fluctuation, the number of civil cases remains relatively low and relatively static.

Dealing with the number of successful cases, the submission quotes the statement that in 2011-12

“‘there were 4,074 cases where legal aid was granted for an actual or prospective judicial review. Of these, 2,275 ended before applying for permission to the Court’. From this it appears that all 2,275 cases were concluded before being issued. From… research on settlement outcomes, it is likely that a majority of these 2,275 cases were settled in favour of claimants.”

Indeed, the whole process of settling before permission proceedings is most often in cases where the offending public body, having become subject to proceedings, admits that it has got it wrong and reaches a settlement with the applicant. That is entirely ignored. If that statement is right, at that point 56% of legally aided cases benefit from the efficiency of the judicial review process.

In summary, of those 4,074 cases, only 515 ended at permission stage without a benefit to the client. The Public Law Project concluded that,

“at the end of the permission stage, 87% of the sample of legally aided cases relied upon by the Government had either been settled, had ended following the refusal of permission but with substantive benefit recorded to the client, or had been granted permission.”

Judicial review is a selective, complex and difficult remedy. It is closely controlled by the administrative court, and it has a good success rate. In many cases, it is the only remedy that an applicant can find. That is why we find what the Government are doing obnoxious.

I will not read this into the record—we have spent enough time on Richard III in proceedings—but I recommend to hon. Members the excellent article, “Why Chris Grayling should bury his appeal against Richard III ruling” by Joshua Rozenberg. It goes through at length all the procedural and legal errors that the Ministry of Justice made that led it to waste so much public money. The article concluded:

“The judges are not being asked to decide where Richard III should be reinterred, an issue on which I remain indifferent. If the claim is successful, Grayling will merely be ordered to go away and think again. He could save the taxpayer a great deal of money by doing so now.”

The case on which the Government rely most for saying that this is an irrelevance is the one in which they have upped the ante and stoked up the cost, when they could have found a remedy very simply.

Finally, to respond to the hon. Member for Bromley and Chislehurst, I suggest that he goes back and reads the record of our evidence session with Mr Fordham, when we looked at the respective powers and responsibilities of the judiciary, Parliament and the Executive.

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

The hon. Gentleman is continuing his usual personal comments against the Lord Chancellor, which I think is highly regrettable.

The hon. Gentleman is good at quoting other people. It would be nice if he occasionally gave his own views. It is clear to me and many others that he is unable to think for himself and therefore has to rely so extensively on other people.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

Now I have heard it all. The record will show exactly the points that I have made and where I have supported those points by evidence or by the opinion of learned authority. I suggest to the Minister and his boss that they would be better off taking the same course. What is sauce for the goose is sauce for the gander. It is not the Opposition who started ranting in the tabloid press about judicial review being

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

This debate has been debased, and it has been debased by the actions of the Lord Chancellor.

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

Just for the record, I am in no way critical of the comments quoted by the hon. Gentleman. I am simply saying that it would be good to hear occasionally what he has to say, rather than the eminent people whom he regularly quotes. It would be nice to think that he can think for himself occasionally.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

Bizarre. I think I will just ignore that and move on.

I suggest to the Minister that, rather than reading out the brief from his civil servants, which does not deal with any of the points raised in debate, he thinks carefully about what is said, whether the points that I raised, or the points that I cited in support of my argument—authority, if you will—and tries to answer them. His singular failure to do so throughout this debate so far—I can see it continuing as we go through the Bill clause by clause—is dereliction. It is not doing the job of Government, and it is not responding to points. It is symptomatic of the issue that we are dealing with here: an arrogant Executive who will not brook criticism or answer the points put to them. Where there are available channels of remedies to do that, they stifle and suppress them one way or another. Before the Minister decides to remove the mote from my eye, perhaps he will take the very large plank from his own.

Having said that, and in the comradely spirit in which such matters are generally conducted at the Ministry of Justice, I do not want to prolong debate on the clause. There are other clauses to deal with. The points have been made—whether they were made by me or cited by me after being made by more eminent authorities than I would ever pretend to be. I am sorry that they have not been answered, but there it is. We find the clause obnoxious and we will vote against it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Full Member)

The hon. Gentleman suggested he did not want to debate the clause further, but there are three more amendments. Does he want to speak to them? If not, I shall move the clause.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I think that what I said, whether it was proper to say it or not, was that my remarks would encompass the issues on both discretion and the restoration of the status quo.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 10, Noes 6.

Division number 6 Decision Time — Clause 50 - Likelihood of substantially different outcome for applicant

Aye: 10 MPs

No: 6 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly agreed to.

Clause 50 ordered to stand part of the Bill.

Photo of Roger Gale Roger Gale Parliamentary Assembly of the Council of Europe (Full Member)

I trust that all hon. Members will return refreshed and in good humour after a good lunch.

Ordered, That further consideration be now adjourned. —(Mr Evennett.)

Adjourned till this day at Two o’clock.