My Lords, we now turn to Part 4 of the Bill, which has proved to be one of the more contentious areas at Second Reading, in Committee and today. The debate has ranged far and wide and it has been magnificent. We have discussed the constitution of the United States, the merits of the European Union, the Council of Europe, King Charles I, fracking, the Severn barrage and HS2, to name a few topics. I am sure that noble Lords will understand if I do not deal with all of them.
Similarly, there have been speeches of an omnibus nature, particularly by the noble Lord, Lord Beecham, and my noble friend Lord Marks, in the sense that they have covered matters beyond Clause 70. I will deal with those arguments when we come to the relevant groups. We are focusing on Clause 70 at this juncture. The Government have listened with great care to the arguments raised by noble and learned Lords and noble Lords during those debates. I assure my noble friend Lord Cormack that I have listened carefully again this afternoon to the speeches made by a large number of your Lordships. However, we do not resile from our central contentions, which I trust the House will allow me to set out briefly.
First, it is our contention that judicial review, when used properly, is an essential component of the rule of law. It allows individuals and businesses to invite the court to test the lawfulness of public bodies’ actions. Secondly, judicial review as it presently stands is not always perfect. On several occasions, the Government have set out some of the examples of delay and cost which can be caused, such as the challenge to the exhumation licence concerning the mortal remains of King Richard III which the noble Lord, Lord Beecham, described as “ludicrous”, despite his own view that York is the more appropriate resting place.
Thirdly, while we have taken some steps, working with the judiciary where appropriate, to rebalance the current approach, such as through the creation of the planning court, some further reform is needed. 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.
The noble and learned Lord, Lord Woolf, was kind enough during our Committee debates to offer me a copy of De Smith’s Judicial Review, of which he is a distinguished editor. I have to say that he honoured his pledge most generously. I have been in receipt of De Smith and I have done my best to reacquaint myself with its contents. The preface to the seventh and most recent edition reads as follows:
“English administrative law is now one the most celebrated products of our common law and doubtless the fastest developing over the past half century”.
We accept that many judicial reviews will be well founded and brought in good faith, and that much of the growth has been driven by the number of immigration and asylum cases, but it remains a simple fact that a well timed judicial review can delay the implementation of crucial policies or projects for months or even
years. 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.
The debates have been, perhaps predictably, dominated by those with long experience of the law and, of course, on the government Benches we welcome the expertise which has been brought to bear, even if we do not always welcome the contents of all the speeches. However, there is another side to judicial review—one which pertains to what happens, or does not happen, outside the courtroom as judicial reviews proceed. As they proceed, arguments are made and countered; witness statements are prepared and probed; and fine points of law are weighed and determined. Crucial projects with direct implications for jobs are delayed, perhaps lost.
For example, a judicial review was initiated by a competitor to the proposed development of a supermarket in Skelton, North Yorkshire. That challenge was described by the judge at the earliest possible opportunity as “a hopeless case”. Yet work was delayed for six months. Irrespective of the rights and wrongs of the case itself, is it right that a hopeless judicial review can be used to such effect? The risk of this happening was recognised by that great judge Lord Diplock who, when emphasising the importance of the permission stage in judicial review said:
“The requirement may also prevent administrative action being paralysed by a pending, but possibly spurious, legal challenge”.
I quote from Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses 1982 appeal case 617 at page 643.
It is important that we do not ignore the fact that such cases place a considerable burden on the public purse in terms of the time of judges, lawyers, Ministers and officials. Overall figures are not recorded, and are probably not recordable, but by way of illustration, I can report that the total legal costs of the Richard III case to the Ministry of Justice alone have been put at more than £90,000, none of which is recoverable. Consequently, we make no apology for having taken some sensible steps already, and none for making a few more small but important changes.
Outside your Lordships’ House the debate about these reforms has been rather long on hyperbole. Reference has been made during the debate today, and indeed in Committee, to left-wing causes. Of course, I entirely accept that it is irrelevant whether a cause is left-wing, right-wing or apolitical. What matters is whether the challenge is justified and whether it has merit. However, I have seen it suggested that the Government wish to do away with judicial review altogether and even that these reforms will lead to imprisonment without trial. As I will explain, these fears are entirely ill founded. The Government believe that the roles of Parliament and the courts should exist within a relationship of mutual respect and co-operation. In that context, I should emphasise what the provisions do not do: they do not seek to undermine or fetter judicial discretion; they do not seek to challenge the basis on which judges approach questions of judicial review; and we have not altered legal standing, much as that was open to criticism. That was a response to the consultation paper.
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The clauses in Part 4, rather, represent a sensible and considered package that will improve the process of judicial review for those with a proper case, put well and founded on flaws that would have made a difference to the applicant. These are common-sense reforms and represent neither the death knell for the rule of law nor a single, double or even triple heresy, as those who listened to earlier debates might perhaps have concluded.
Your Lordships’ House is of course very fortunate in having available the range of legal expertise that it does for a debate of this nature. This clause and Part 4 have been very thoroughly scrutinised, as, of course, is the proper function of this House. However, your Lordships should be under no illusion about the scale of the attack on this part of the Bill. The amendments would remove altogether any reform at all of judicial review, notwithstanding that this—whatever the regrets of the noble Lord, Lord Lester, and others—is a coalition government Bill, and one that has been through all its stages in the House of Commons. It is of course entirely open to your Lordships to take such a course, but that would represent a substantial challenge to the will of the elected House by a revising Chamber.
Clause 70 will first be relevant after the defendant is notified that the judicial review has been brought against it by a claimant who is arguing that there were flaws in the process. It will be open to the defendant to indicate that those flaws were minor and highly unlikely to make a difference to the outcome. The court could then consider whether that was the case, either on the papers or at an oral hearing. If satisfied that the “highly likely” test was met, the court would not give permission to proceed.
The defendant might be a government department, a local authority or a local hospital trust. The claimant might be an individual with a genuine interest, but could equally be a large corporate entity advised by the finest legal brains. Judicial reviews are not always an impecunious or disadvantaged individual, as the noble Baroness, Lady Campbell, referred to, pitted against an overmighty government department. The courts can and do already apply no different principles, so to decide that this is a judicial no-go area is to ignore what happens already. However, that threshold requires at the moment that the flaw would “inevitably” have not made a difference. While that is extremely high, the threshold that this clause would apply—“highly likely”—is also difficult to meet. Where a court entertains any real doubt that there could have been a difference, it need not refuse permission or a remedy. By doing that, the clause will help to ensure that judicial review focuses on matters of significant importance, not on mere technicalities that are unlikely to affect the outcome.
The amendments that have been tabled are intended to revise several elements of the clause. They would variously remove or amend the requirements to consider “no difference” arguments, where raised, and to refuse permission or remedy and replace the “highly likely” threshold with an “inevitable” standard—in other words, to maintain the status quo. Amendment 155 would delete the clause entirely, recreating the present approach, and would significantly weaken the effectiveness of
the clause in dealing with minor technicalities. Minor failures in process, highly unlikely to have made a difference, would remain a hook to delay a perfectly legal policy that was simply unpopular.
Where the judge is satisfied that it is highly likely that a complained-of flaw would have made no difference in substance to the applicant, it is the Government’s view that continuing that case is not likely to be a good use of scarce, taxpayer-funded court resources. It is the Government’s view that neither the overriding objective nor the public interest is served by prolonging those cases where the judge is satisfied that the “highly likely” threshold is met.
In Committee on 28 July we debated—and have referred to again today—the position of declarations, in which the court sets out its view of the applicable law without providing an enforceable remedy to benefit the claimant. As I set out in my letter of 13 August, the Government’s view is that the clause does not require amendment on that point. The court will be able, so far as it is able at the moment, to entirely properly set out its view of the applicable law when either refusing permission or remedy. If the case has merits, or the judge thinks it might be important or desirable to grant a declaration, then he or she will probably give permission anyway, although not in a weak case. To quote De Smith again:
“If an issue is theoretical, then in ordinary civil proceedings that is a compelling factor against the grant of relief”.
That remains the situation even if one of the parties has a perfectly legitimate reason for seeking clarification of the legal situation. Judicial review is about remedy.
Concerns have been raised about the risk of delay, and Amendment 149 appears aimed, in part, at seeking to avoid that. The Government’s view remains that where a no difference argument is raised, the court should consider it, and that the risk of significant additional delay can be mitigated.
As rules of court will set out the procedural details to give effect to these changes in practice in due course, it would be wrong of me to pre-empt their consideration at this stage. But at present I see no sense, for example, in requiring the court to hold an oral hearing before permission to ventilate no difference arguments which, on the papers, are clearly not made out. In addition, the court could look to costs if raised in inappropriate cases. Consequently, I believe that the risk of additional delay is manageable.
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, and that it preserves an appropriate balance in practice between the legislature and the judiciary.
Let me conclude. I understand why there is nervousness when a Government seek to change, however modestly, the law in relation to judicial review. This is by no means the first Government to find, from time to time, judicial review a little irksome. That is of course no reason for emasculating the law on judicial review. Let me be clear: the Government’s reforms do not do that. I understand also that lawyers are protective of this area of the law. As the noble and learned Lord, Lord Phillips, said, it has been created, not by Parliament
but by lawyers and judges. However, it is important that the law in this area should not result in an impression that it is created not only by lawyers but for lawyers. The noble Lord, Lord Pannick, said in Committee that Governments do not like losing cases and that in the immediate aftermath of doing so tend to mutter darkly about the iniquities of judicial review. Then, he said, they calm down. The noble and learned Lord, Lord Irvine, from whom the House was very glad to hear, made a similar contribution. A degree of annoyance is understandable.
However, I suggest that calm is the right response to these modest reforms, just as it is when the Government have calmed down after losing a judicial review. It is important that Governments do lose cases. I recently returned from Kyrgyzstan, where I lectured a group of students who were astonished when I told them that the Government in this country regularly lose cases.
I respectfully ask the House that when approaching these modest reforms it adopts a measured approach, notwithstanding the powerful speeches that have been made today, and see these provisions for what they really are: a sensible adjustment to the existing law, not an attack on the rule of law.
During the course of the debate there has quite rightly been frequent reference to the late Lord Bingham’s book, The Rule of Law. In it, there was discussion about the prevailing constitutional principle; whether it is indeed the sovereignty of Parliament, as most of us would have it, or whether there is some new basis—namely, the rule of law referred to by the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Steyn. The late Lord Bingham certainly favoured parliamentary sovereignty being the governing principle.
Be that as it may, judicial review should coexist with the right of Parliament to legislate. Nothing about these reforms undermines that. I therefore ask noble Lords and noble and learned Lords to consider carefully the significance of this outright attack on a government Bill and ask the noble Lord, Lord Pannick, to withdraw his amendment.