Lords Amendments on JR Defeated
The Criminal Justice and Courts Bill is going through the final parliamentary stages before it becomes law. Part 4 of the Bill proposes significant changes to the judicial review procedure. The House of Lords had passed amendments to the Bill on 27 October, which campaigners and lawyers welcomed. However, on 1 December the House of Commons rejected those amendments, putting back into the Bill changes that could have a chilling effect on people’s ability to access justice.
Secretary of State for Justice and the Lord Chancellor, Chris Grayling opened the debate, stating that the Government disagreed with the Lords’ amendments. He suggested that the time had come for limitations to be set on judicial review and described a system which was being taken advantage of by “clever lawyers” who brought claims on the basis of “loose arguments” regarding “minor technicalities.” He said the Bill was intended to prevent this alleged misuse of the system so that cases brought on a minor technicality would no longer be allowed to proceed, particularly if the likelihood that the decision would have been different was low. He contested that the exceptional circumstances clauses within the Bill would ensure that meritorious cases continued to be heard.
Grayling covered the changes intended to force the disclosure of the identity of third party interveners. He stated; “our intention is to tackle the challenge of such human shields, not to remove altogether the ability to intervene in cases where there is a legitimate reason for doing so.” He described big corporations and pressure groups being able to bring broad-ranging cases on public policy by acting as interveners behind and alongside individuals whilst remaining anonymous and immune from financial risk.
The third area of amendments from the Lords, on Clause 67, had persuaded the government to issue amendments in lieu to address some of the worries arising from the court’s proposed ability to place cost awards on third party interveners. Grayling stated that the amendments in lieu would give the judiciary significant leeway when asking the court to consider whether any of four conditions had been met as well as whether costs were incurred reasonably. The court could also decide that cost awards against interveners were inappropriate in some exceptional circumstances.
Opposition to the proposals came from members of all main parties. Many questioned the validity of the Government’s concerns about so-called misuse of the system. Geoffrey Cox, a Conservative MP asked what Grayling meant by “minor technicalities”. Frank Dobson (Labour) similarly expressed concern that allowing public bodies to get away with ‘minor technicalities’ was in effect allowing them to break the law. In response, Grayling argued that judicial reviews based on such issues occurred on a regular basis (a point which Cox later disagreed with). Julie Hilling (Labour) sought clarification on how regularly these claims were brought, but Grayling offered little in the way of a definite response.
The most prominent opposition speech came from Andy Slaughter, the Labour shadow justice minister. He argued that the changes were not intended to bring transparency but instead to discourage and suppress viable litigation. He noted that the Lord Chancellor had “lost six judicial review cases in 2014 and there are a further seven, strong cases in the pipe line”, and asked whether this had any bearing on his current attack on judicial review. He observed that there would be “chilling effects” on applicants in need of financial support as charities, family members and not-for-profit organisations would no longer be prepared to offer help in light of the introduction of financial risks.
Geoffrey Cox went onto argue that the Bill would create a cumbersome, fact-finding exercise for the judiciary. He dismissed Grayling’s claim that the exceptional circumstances clause would allow cases with merit to be heard whether the outcome would have been different or not arguing that, in practice, many cases would not be considered to be exceptional enough.
Despite some hope before the debate that some Liberal Democrat MPs would support the Lords’ amendment, in the end the MPs mainly voted along party lines. All amendments from the Lords were roundly rejected.
The Bill is back in the House of Lords on 9 December 2014 for the latest stage in the “ping pong” between the Commons and the Lords. It is to be hoped that the Lords will once again manage to pass amendments to the Bill for the Commons to consider again.