Three strikes and out? Major defeats for Government Judicial Review reform plans in the Lords

28 October 2014 by Guest Contributor

Lords Pannick and Faulks

Last night saw the important Report Stage consideration of Part 4 of the Criminal Justice and Courts Bill in the House of Lords. Angela Patrick, Director of Human Rights Policy at JUSTICE provides a summary.

Widely – and quickly – reported as a “crushing” or an “emphatic” defeat – in a rare turn – the Government was last night defeated in three consecutive votes on its proposals to restrict access to judicial review. With a ‘hat-trick’ of blows, on three crucial issues, votes on amendments tabled by Lords Pannick, Woolf, Carlile and Beecham were decisive. On the proposal to amend the materiality test – the Government lost by 66. On the compulsory disclosure of financial information for all judicial review applicants, and again on the costs rules applicable to interveners, the Government lost by margins on both counts by 33. A fourth amendment to the Government proposals on Protective Costs Orders – which would maintain the ability of the Court to make costs capping orders before permission is granted – was called after the dinner break, and lost.

The detail of the Government proposals to restrict judicial review has already been considered in this blog at some length. However, the latest debate and the votes are important, not just for the number of Peers voting or the number of consecutive defeats:

Who voted?   Notable contributions by former Supreme Court justices, Lord Chancellors and Lord Chief Justices should not be ignored. In opening the debate, Lord Woolf stressed the particular importance of judicial review in the UK, with our unwritten constitution:

We are dealing here with the residual remedy of citizens to deal with their fear of unlawful action by the Executive; that is what we are dealing with in most cases of judicial review. That being so, I suggest that the discretion of the judge to examine the position of the Government, the position of other public bodies and the position of the citizen, and then in accordance with the facts of each individual case decide whether it is appropriate to give relief and what relief should be given, is extremely important. (HL Deb 27 Oct 2014, Col 959)

Lord Phillips’ contribution was short, but powerful:

“[I]f those in this Chamber who were opposed to these amendments at the start of this debate have not been converted by what they have heard, nothing that I can add is going to convert them. I simply say … that Parliament did not create judicial review; the judges did. It was, I hasten to say, before I became a judge and was one of the best things that our common-law judges have ever done. These amendments are designed to ensure that Parliament does not damage that which the judges created, and they deserve the support of this House.” (Col 972)

However this wasn’t a debate limited only to the Lords’ lawyers. Heavyweight contributions came from all quarters. Baroness Campbell – a former EHRC Commissioner and a cross bench Peer said:

“I know—I really know—what disabled people experience on a daily basis. I do not need to remind the House that when public authorities get it wrong, my God, they get it wrong and it has devastating effects on the individual. It hits disabled people particularly hard because they are the most in need of taking public authorities to court to get justice for their services—the services that they rely on to survive and live. They are absolutely, disproportionately dependent on public services and judicial review. As I said before, I have never known judicial review to be abused by disabled people or the charities that support them.” (Col 962)

Crucially, those voting against the Government included rebels from both the Liberal Democrat and Conservative benches.

Lord Marks, from the Liberal Democrat benches saw:

“Part 4 as a serious infringement of the right of the citizen to challenge unlawful action by the Executive before the courts and thus, frankly, as an assault on the rule of law…This part of the Bill aims to choke off challenges to unlawful action by the Executive. I fear that, if enacted, it will achieve precisely that.” (Col 960)

Former Ministers spoke from all three benches. Lord Deben – John Gummer – stressed the practical and constitutional reasons for candour and caution on the reform of judicial review:

“I speak today because I think the judges are entirely right, and the concern that I have is a concern for my own historic profession of politician. I well remember the occasion on which I was able to use the fact of judicial review to get my civil servants to understand why I would not accept a particular appeal on a planning matter. It was because it was quite clear to me that the very powerful interests, whose infrastructure aim I entirely approved, had failed in their duty to look for alternatives to the proposal that they were putting forward. They had not, therefore, fulfilled the law. Now, sometimes it is easy for a Minister to make such a decision, but sometimes it is inconvenient. It is important that embarrassment and inconvenience should not be allowed to go so far that it means that Ministers make decisions which are unlawful. Somebody has to decide when a decision is lawful and when it is not. That is what judicial review is about; it is a very simple concept.” (Col 968)

In over 5 hours of debate, only Lords Tebbit, Horan and Mackay rose from the conservative benches to support the Minister, Lord Faulks.

Why did they vote? To preserve time for votes, the statements made during the debate were necessarily brief but striking.

Lord Carlile, one of the four cross-bench Peers proposing the key amendments, began by stressing the magnitude of the issues in many judicial reviews:

“These are not pragmatic actions over small sums of damages; they are actions over great issues of principle. Even if some claimants would not actually win their personal actions for judicial review, we know, from the cases which we have all read and in which some in your Lordship’s House have appeared, that enormously important issues of principle for the future arise from them.”

“Surely we should not inhibit justice by these rather mean provisions, which, in my view, my party—the Liberal Democrats—should never have given a single piece of powder or a single piece of shot to support.” (Col 963)

Lord Irvine of Lairg – former Lord Chancellor himself – called in aid the rule of law:

“The judiciary is a vital component in our separation of the powers. Judicial review is indispensible in a democracy proud to be governed by the rule of law. It ensures that public bodies act according to law. They cannot be above the law. Ministers, who are politicians, often will be frustrated if their decisions are challenged or quashed, but that is an intrinsic aspect of government subject to the rule of law, as is the need for Ministers to be aware of their duty to comply with the law. A Government who are confident that their decisions cannot be readily challenged risk becoming a Government who no longer have to respect the rule of law. That is a risk that no Secretary of State for Justice, who also bears the title of Lord Chancellor and is under a duty to uphold the rule of law, should be prepared to countenance.” (Col 964)

On the relevance of judicial review, Baroness Kennedy, said:

“It is always about the person whose business is to be closed down from trading, based on a department’s or a local authority’s decision that they want to challenge, or the person whose mother is in a care home and suddenly finds that it is being moved or closed down, with no consultation as to the impact on her and her family. It may be about the effect on a disabled child of a decision about their schooling. Those things are about real people’s lives and that is why this is not just a constitutional debate of high flown words or complicated legality—it is about the real impact on the lives of ordinary people.” (Col 972)

On the role of interveners, Lord Low explained that these proposals, together with cuts to legal aid would have a particular effect on vulnerable litigants:

“Following cuts to legal aid, children are increasingly forced to face court proceedings without a lawyer. In these circumstances, litigation brought by charities, NGOs and children’s rights organisations in the public interest is ever more important. Equally, in the new environment where they are increasingly faced by litigants in person, the courts increasingly value the contribution of third-party interveners providing expert advice to assist them on specific points of law and fact, including points on what is in the children’s best interests.” (Col 994)

On lowering the materiality threshold, Lord Deben explained:

“This is where I really disagree with the Government. It is perfectly possible for a person to have been misjudged, for an issue to have been decided not in accordance with the law and for the outcome to be the same as had the law been carried through, but for it still to be an important part of freedom to ensure that the law is upheld. That is the issue of considerable importance.” (Col 968)

Baroness Williams shared Lord Deben’s concern about the role of judicial review in Ministerial decision making:

“Like the noble Lord, Lord Deben, I was also a Minister for a long time. During that period, on more than one occasion, I was confronted in a very direct way with challenges to the decisions I had made, particularly about issues around comprehensive schools. What I learnt from that experience was, first, to be very careful and thoughtful about any proposals that my department made in my name. Secondly, I learnt to have great respect for the often painful occurrence of reviewing my decisions in great detail, no doubt to the displeasure of a number of local authorities who did not share my view.

I am very troubled by some of the clauses, which will make it difficult for that same humble individual citizen to stand up to the state because he or she lacks the resources to do so or the ability to pay for brilliant lawyers. That is exactly the opposite of what we thought—what I have always deeply believed—that judicial review was all about.” (Col 969 – 970)

What does this say about the Government’s case for change? The Government’s case for change on judicial review has been a shifting feast since the first post-LASPO consultation in April last year. Nothing in the Minister’s contribution to last night’s debate was new. He continued to stress that these proposals were “modest”, and that the “attack” on this part of the Bill was thick with “hyperbole”. He suggested that a vote in favour of the amendments would be to suggest that judicial review should be forever free of parliamentary examination. He made frequent reference to his copy of De Smith (freshly gifted by Lord Woolf during earlier debates on the Bill), suggesting somewhat strangely perhaps, that many of the changes in the Bill reflected powers already held by judges in the common law.

The statistical case for change was demolished during consultation by many, including JUSTICE. The Joint Committee on Human Rights put paid to the sweeping claim that judicial review had expanded massively earlier in the year. Yet, last night saw the Minister seek comfort in the same familiar, but flawed figures on the expansion of judicial review: “Noble Lords may be aware that the use of judicial review has increased more than threefold in recent years from around 4,200 in 2000 to around 15,600 in 2013”. By this stage in the debate, the Lords are well aware that those figures change drastically when immigration figures – now moved to the Upper Tribunal and away from the administrative court – are considered. The figures for other judicial review cases have increased, but in the view of the JCHR, have remained stable.

Yet, despite the difficulty with these figures, if the Government were really serious about reducing the demand on judicial review, would they have chosen to further restrict access to statutory appeal for individuals subject to immigration control? The Government’s own impact assessment accompanying the Immigration Act suggests that it considers a possible increase of up to 5,000 new judicial review cases acceptable (see page 12). 

Next; the sums. The Government’s own impact assessment has never claimed that these changes would save a significant sum. Failure to engage with the critical recommendations of the Fordham Review on Streamlining Judicial Review which would save money and increase efficiency in the administrative court, fatally undermines any realistic claim to a financial case for reform (see Government Response to the first report of the Joint Committee on Human Rights, paras 84 – 87).

Finally; the democratic case. Last night put paid – in robust terms – to the final vestiges of the Government’s claim that these proposals were designed with a democratic goal at heart. Yet, the Minister persisted, with echoes of the more direct suggestion of the Lord Chancellor that judicial review is some-how anti-democratic, suggesting that the time of Government was better spent productively, rather than resisting judicial review claims:

“Even when decisions are perfectly in line with due process, months can be spent preparing for and defending claims when that time would be better spent taking forward the reforms that the country needs.” (Col 974)

We have considered at some length in this blog the considerable criticism of the first report of the Joint Committee on Human Rights. Less than two weeks ago, that Committee reiterated its conclusions supporting amendments near identical to those put to the vote last night. Between these two volumes sits the conclusion of the House of Lords Constitution Committee. To belittle judicial review on constitutional grounds presents a skewed vision of democracy and shows little understanding of the role of an independent judiciary, and of checks and balances, in modern democratic Government.

Criticism by two parliamentary committees and three defeats in the Upper House provides little straw to cement an already flawed constitutional argument in favour of change.

Although the dinner bell proved a decisive factor in the debate – with no further amendments moved – a few important points were made as the evening drew to a close. Responding to an amendment to clarify Parliament’s intention that LASPO powers were never intended by Parliament to be used for the purposes of further restricting access to or eligibility for, the Minister somewhat incredulously explained:

“[T]he regulations made under Section 2 of LASPO do not affect the availability of civil legal         aid to individuals, the scope of civil legal aid for judicial review or the eligibility of applicants       for legal aid in judicial review proceedings. Where a client is in receipt of legal aid, he or she will remain so for the life of the case unless it is withdrawn for other reasons. These changes relate only to the remuneration of legal aid providers. To put it more simply, it is the lawyer who loses out. The client does not lose legal aid. […]

Legal aid can be available. Whether the lawyer is paid, in the case of an unsuccessful       application for permission, does not remove the individual’s essential right to legal aid.” (HL Deb, 27 Oct 2014, Col 1050-51.)”

As Lord Pannick said in winding the debate up – with some sympathy for the Minister’s clearly difficult brief – slugging away at these same, tired arguments, simply “won’t wash”.

What comes next?

The crucial remaining question is yet, what comes next.

The final stage of the Bill in the House of Lords – Third Reading – is scheduled for later in the month (with debate expected on 10 or 17 November), before the Bill then returns to the House of Commons for the consideration of Lords amendments. In light of the strong feeling in the Upper House, there may yet be scope for further amendment, perhaps revisiting the provisions on PCOs.

However, the key question is whether and how the Government will engage with the Lords amendments between now and the next Commons vote. Will officials urge Ministers to bring forward alternative amendments in compromise, or will the coalition Government force through the original proposals unchanged?

All of the legal arguments have now been made, both by commentators and by MPs and Peers of all political persuasions and none. What remains is a political dialogue within the parties of the coalition and with backbenchers about the constitutional significance of this vote – and this Bill. The question is whether both parties in Government feel sufficiently strongly to reject the message sent by the House of Lords. By accepting the Lords amendments, the Government would create a new platform for constructive engagement in increasing the effectiveness of judicial review for all. By pressing ahead, they appear to affirm the allegation made by some Peers that they are acting in bad faith and the concern stressed by some commentators that these proposals, not by coincidence but by design, are constructed not to improve efficiency but to shield Government and public agencies from effective oversight.

Yet, the real implications of last night’s vote will be played out in the coming days at the offices of the Ministry of Justice and in the conscience of Ministers of both political colours.

In light of the constitutional significance of the change proposed, the cross-party concern expressed in the Lords, and the limitations of the Government’s case for change; these three strikes should provide not a glancing, but a knock-out blow.

JUSTICE and 30 other charities and NGOs produced a joint briefing in advance of the Lords consideration, in support of the amendments put to the vote last night. JUSTICE has prepared full briefing on the proposals on the Criminal Justice and Courts Bill, here.

For further information about the work of JUSTICE or to become a member, see www.justice.org.uk or @JUSTICEhq.

Tonight JUSTICE launches a new appeal – ‘Securing JUSTICE at 60’ – with the first in a series of ‘Law and Literature’ events. More information is available here.