We do indeed stand on the shoulders of giants in conducting this debate. The names that graced the amendments that were made in the House of Lords included not only the former Lord Chief Justice, but other esteemed lawyers such as Lord Pannick, the Labour spokesman Lord Beecham, Lord Carlile and many other senior jurists. Indeed, the President of the Supreme Court and the Master of the Rolls have also spoken out in clear and emphatic terms to say that the Government proposals are not just folly, but dangerous steps to take. I am amazed that any Lord Chancellor—even this one—would ignore those protestations.
It is not wrong to see this concerted attack on judicial review as being of a piece with other reductions in access to justice that this Government have advanced, such as on legal aid, on no win, no fee, and on court and tribunal fees. However, judicial review seems to receive particular opprobrium from this Lord Chancellor. That is strange in many ways. Judicial review is already a remedy of last resort and already includes a permission stage. Its accessibility has been limited by the changes to the rules on legal aid for judicial review and the shortened time limits for applying. Indeed, Lord Justice Jackson, some of whose recommendations on costs and civil claims the Government have grabbed on to, advised that it was already very difficult for the ordinary citizen to apply for judicial review for want of funds and expert knowledge, and that we should look at broadening the basis for bringing a judicial review claim.
The attack on judicial review should be of concern to us all. It is a remedy that can protect the rights of very vulnerable individuals, such as young prisoners and dementia sufferers; that can save whole communities from wrongful decisions by the state, such as when the closure of Lewisham’s accident and emergency department was ruled unlawful; and that can establish the law on important points of policy, often with the help of expert bodies that intervene to assist the court on a point of general principle. It is, as Liberty says,
“a crucial tool which allows ordinary people to challenge decisions by the authorities—either because they’re unlawful, irrational, or made in the wrong way.”
I suspect that if their lordships had not been interrupted by other business, they would have continued to neuter the clauses that deal with judicial review. As it is, they stopped at just three defeats for the Government, each of which was important. We urge all Members of the House to vote against the motions to disagree in respect of each of the clauses at issue. For the avoidance of doubt, we will press to a vote, just as their Lordships did, the matters that relate to the “highly likely” test, financial information, and interveners.
6.30 pm