I do not think that anyone on this side has spoken yet.
Everyone who has spoken so far has been a lawyer, with the exception of the noble Baroness, Lady Lister. I am not a lawyer; I am an economist, but perhaps I introduce a rather separate vein of thinking into this debate, which is extremely interesting and very important for the conduct of government.
The issue that concerns me as an economist and as a previous government Minister is delay. Almost all judicial review cases involve considerable delay. Indeed, the noble Baroness, Lady Lister, rightly and very fairly mentioned the report of the Joint Committee on Human Rights which went into the whole business of judicial review. In that case, the Government’s response indicated several instances where there had been great delay as a consequence of judicial review cases. I will not go through a long list, as that would weary the Committee, but I shall give some examples. A development of 360 homes in Carmarthenshire was delayed by 18 months. A development in east London which would have created 500 jobs was delayed by 15 months. The expansion of Bristol Airport was delayed. Very often, in the judicial review in question, the case was found to have no merit whatever, but there was still delay.
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We all know that this country is decades behind on infrastructure, railways, roads, airports and, above all, housing. We need to catch up fast on those issues if we are not to have terrible consequences for the welfare and success of our country. As I understand it, the Government are linking this provision on judicial review to the Infrastructure Bill, which the House is also considering. It is a concerted approach to get infrastructure and housing projects moving through a Bill that is directly concerned with them and also through a part of this Bill, which is concerned with striking a different balance between human rights and reasonable concern and getting expeditious results for the Government. Governments are usually criticised for thinking in silos and not having a concerted approach, with a Government doing something that is not thought out and has implications for the rest of government. It is therefore rather odd that the Government should be criticised for having a concerted approach. It is also odd, to an outsider who is not a lawyer, for the Government to be criticised for doing something in this provision that would mean there was no difference in the result of the case, as the case would not be considered if there was no likely difference in the result.
We are dealing here, from a non-legal point of view, with something that does not make sense to an ordinary person; it cannot be made out. From my experience—I draw from my political, non-legal experience—judicial review has reached a stage in its sheer pervasiveness that local authorities now consider whether to go ahead with a particular case or decision and must include in their budget and decision-making the possibility of a judicial review. So pervasive has judicial review become that it is part of the local authority stock-in-trade. Yet, this is a moment when all three major political parties are saying that local authorities must do more if we are to improve the welfare of our people. We want them to be more radical, more entrepreneurial and less cautious. On the other hand, they now have a culture of caution. In my view, one thing that has caused that is the whole business of judicial review and the way in which it has expanded over the past 10 to 15 years.
That is true not only of local government; from my experience as a former Minister of Health, it is also true of the National Health Service. Professor Willett, the director for acute episodes of care in the NHS, recently said that lives are still being lost because of resistance to change in the NHS. In my personal experience, judicial review is often used to thwart admittedly controversial NHS developments, and I have examples in the area that I represented when I was a Member of Parliament. No responsible Government can ignore the quantum of issues arising from judicial review. I therefore agree with the noble Lord, Lord Marks, and disagree with the noble and learned Lord, Lord Brown, that a Government simply must take this into account to run the country properly and meet the aspirations of the people.
We must also consider the wider context. Liberal Democrats will be aware of a very good book, Race Plan, brought out by one of their colleagues in the
House of Commons. He is a former Minister in the Foreign Office and he talks about the threat from China. China has a societal arrangement that is wholly different from ours, and its idea of human rights and democracy is totally at odds with ours. Yet, because of that lack of interest in human rights and in democracy, it is able to make decisions far more quickly than we can. If we do not make decisions quicker than we have been doing, we face the prospect of being left behind by countries such as China and so forth.
Even the publication by the Joint Committee on Human Rights on this subject—which I have read, as I have the Government’s response—fairly made the point that the costs and delay resulting from judicial reviews are a perennial problem. As any gardener will know, perennial bushes and plants grow every year: they have to be pruned back or they will overwhelm their neighbours and damage themselves. On this matter, the Government are trying to strike a balance between the natural growth in judicial reviews which has occurred, and which many rightly welcome, and society’s need to ensure that we make progress in areas such as housing, railways and roads, where we have important decisions to make.
I agree with many of the lawyers who have spoken in this debate about the practicalities of how Clause 64 should be considered. Obviously, one should listen to the lengthy experience of lawyers who consider these matters daily. The noble and learned Lord, Lord Woolf, made the point that many of these issues have become common practice in the law courts, a place where I would not venture. None the less, the Government have clearly indicated that they are willing to be flexible on some of these strictly practical matters.
Overall, on the level of principle—and everyone who has spoken in the debate so far has tried to reach the level of principle—surely the Government are trying to strike a slightly different balance between considerations of human rights and the rights of the citizen and the need to have competent and effective government, which is in the interests and the welfare of the people of this country.
The Minister pursued this argument at Second Reading with considerable skill, courage and, perhaps I may say, stamina. All fair-minded and objective people who are concerned about the bigger picture and not just about the legal situation will see that there is a lot of sense in what he is saying.