My Lords, the last four years have seen the construction of major roadblocks on access to justice. Some 650,000 claimants a year, and their dependants, can no longer benefit from civil legal aid or advice, resulting in the collapse of law centres, extreme pressure on advice agencies and the expense and delays caused by litigants in person unable to receive legal advice in the preparation or presentation of their case. As we heard just last week, the family courts are often now clogged with litigants in person.
The imposition of charges for employment tribunal claims have led to an 80% reduction in applications. Large cuts in fees for criminal legal aid threaten to reduce the chances of a fair trial.
However, as the noble Lord, Lord Pannick, has made clear, Part 4 of the Bill proposes even more insidious changes which would narrow the scope of judicial discretion in cases in which the lawfulness of decisions made by the Government themselves, or by public agencies, is challenged through the process of judicial review. As the Equality and Diversity Forum reminds us in its briefing, the Master of the Rolls, Lord Dyson, has asserted that,
“there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”.
The Bill seeks deliberately to make it more difficult and potentially more expensive for citizens, either as individuals or whose interests may be represented by a charity, to seek a ruling from the courts as to whether decisions which might have far-reaching effects were properly made. I remind your Lordships that they already have first to obtain the leave of the court to bring such a case, and very often matters can be and are resolved at that stage.
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The amendments we are debating address the major roadblocks, to which I have referred, placed in the path of those who seek access to justice by judicial review of the decisions of the Executive in their many manifestations. One underlying technique adopted by the Bill is to restrict the exercise of judicial discretion in applying the various tests which it sets out. A common theme running through the groups of amendments before us—this group and others—is that of dispensing with the fetters on judicial discretion which the Bill would otherwise apply. Your Lordships will therefore be pleased to learn that it becomes possible for me, in speaking to amendments in this group, to deal with the principal issues and thereby reduce the length of the speeches that I might make when we debate subsequent groups.
Two distinguished Members of your Lordships’ House set out views in the case of Jackson v the Attorney-General, in 2006, which touched on the fundamental issue. The noble and learned Lord, Lord Steyn, said:
“In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the … Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament … cannot abolish”.
We are of course not yet in the position of seeing an attempt to abolish judicial review—erosion, not abolition, is what we are facing—but as the noble and learned Lord, Lord Hope, averred:
“Parliamentary sovereignty is … not uncontrolled. It is no longer right to say that its freedom to legislate admits of no qualification whatever”.
It is better, I suggest, for Parliament itself to acknowledge the need for a system which allows the testing of challenges to the decision-making process.
Various barriers will now have to be surmounted if the Bill is not amended. They are clearly designed to have a chilling effect on applicants and those who might support them or offer to intervene. This group of amendments deals with the test of substantial
difference to be applied and applies a more stringent test of the likelihood of a different ultimate outcome to be passed. I respectfully endorse and adopt the critique by the noble Lord, Lord Pannick, of Clause 70. The next group of amendments relates to the disclosure by applicants of,
“the source, nature and extent of financial resources available, or likely to be available”,
to them to pursue a case, including, in the case of companies or charities, from their members.
The third group addresses the requirement for interveners—which are very often charities—that obtain leave to provide evidence or make representations in a case to make similar disclosures and prescribes that, save for exceptional circumstances, they will not be able to recover their costs. In practice, the involvement of interveners after leave is given by the court, which is required, is often very helpful. They can of course intervene on either side of the argument. Costs can be prohibitive for an individual or charity, and hitherto the court has been able to make an order capping the liability to pay the other side’s costs. The Bill would remove this protection from the initial stage of seeking leave so that it would apply only if leave is granted, and even then the new rules “about available resources” will apply. Other tests are also laid down, which are likely to deter intervening. The fourth and fifth groups of amendments deal with that issue.
The Lord Chancellor has declared that the judicial review system,
“is not a promotional tool for countless Left-wing campaigners”,
of the kind that a now departed Minister advised to “stick with the knitting”. In fact, campaigning organisations including the Countryside Alliance and the Daily Mail, to name but two, brought all of 50 cases in 13 years—some 3% or 4% of the total number of cases for judicial review.
The proposals on judicial review have been roundly condemned by the Constitution Committee, by the Delegated Powers and Regulatory Reform Committee, by 11 police and crime commissioners in a letter to the Times today and, of course, by the Joint Committee on Human Rights, which among many other observations said of the Lord Chancellor’s remarks:
“Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim”.
Of course, the Joint Committee on Human Rights draws from all sides of Parliament in both Houses.
I hope that Members across the House will support the amendments in this and other groups. In particular, if I may say so, I hope that Liberal Democrat Peers—whose party, to its very great credit, has voiced opposition to their partners’ proclaimed intention to dismantle the Human Rights Act—will do so in the same spirit in which they have opposed those proposals, which, of course, are not yet in any legislative form.
I conclude with the powerful words of the noble and learned Lord, Lord Neuberger, President of the Supreme Court:
“One must be very careful about any proposals whose aim is to cut down the right to judicial review … The courts have no more important function than that of protecting citizens from the
abuses and excesses of the executive—central government, local government, or other public bodies ... the more power that a government has … the more important it is for the rule of law that such abuses and excesses can be brought before an impartial and experienced judge who can deal with them openly, dispassionately and fairly”.
All of that will be made more difficult if the Bill passes unamended.