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House of Lords

Monday, 28 July 2014.

2.30 pm

Prayers—read by the Lord Bishop of Sheffield.

Debt Management Organisations

Question

2.37 pm

Asked by Lord Sharkey

To ask Her Majesty’s Government what steps they are taking to ensure that debt management organisations serve the interests of their clients.

Lord Newby (LD): My Lords, the Government have given the Financial Conduct Authority responsibility for protecting customers of debt management firms. Debt management firms are subject to binding FCA conduct rules and must treat customers fairly. FCA prudential and client money requirements are also being introduced to protect customers’ money. The FCA will thoroughly assess every debt management firm’s fitness to trade as part of the authorisation process from October this year.

Lord Sharkey (LD): My Lords, half of the clients of fee-charging debt management companies do not know that there are equivalent free services. These clients are mostly recruited by cold calling and 31 million cold calls were made last year. The FCA says that it does not regulate these calls. Can the Minister say who does regulate them and are cold callers required to advise of the existence of free debt management services?

Lord Newby: On the second part of the noble Lord’s question, debt management companies will be required under the new rules to signpost consumers to free debt advice, which will be a major improvement. There are two elements of regulation of cold calling and unsolicited text messages. The ASA has some responsibility in that area and it has already taken action to ban payday lenders’ use of unsolicited text messages. As with its regulation of other financial services markets, the FCA is committed to ensuring that cold calling by phone, text or e-mail makes the identity of the firm and the purpose of the communication clear to those being called.

Lord Kennedy of Southwark (Lab): In a recent Parliamentary Answer I found out that since 2005 companies in the financial services sector have been fined £1.2 billion. Will the Minister agree to look at the points made by the noble Lord, Lord Sharkey, and maybe use a small portion of those fines to fund good charities, good organisations and credit unions which actually help people who are in debt?

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Lord Newby: My Lords, as the noble Lord knows, the Government are already committed to funding credit unions to a considerable extent. On the issue of free money advice, the Money Advice Service has allocated some £38.1 million this year to fund free debt advice, which will be given through organisations such as Citizens Advice and StepChange.

The Countess of Mar (CB): My Lords, I had just such a cold call this morning and the person who made it did not leave their address or their name. It was a tape-recorded message. Is there anything that I can do about that? Can the Minister say what will be done to protect people who have pension funds from being scammed? There was a lot about that on the radio this morning.

Lord Newby: The FCA has very considerable powers to regulate all financial services firms in this area. In the sector we are looking at, it took on responsibility earlier in the year. It has introduced stricter rules and is putting in place new authorisation processes. But if the FCA finds that despite the way in which it is tightening up its procedures, there are still significant problems in respect of cold calling, it has the powers to intervene further.

Baroness Chalker of Wallasey (Con): Is it possible for my noble friend to insist that somebody who is either erroneously or speculatively called and does not want the services of a debt management organisation can dial 1471 and get the number so that we can put a stop to some of this calling? I have tried to do it; it does not work; and I am fed up with it.

Noble Lords: Hear, hear.

Lord Newby: My Lords, it is clear that many noble Lords share my noble friend’s view that unsolicited cold calling is a nuisance. I think that people find this in a whole raft of areas, whether it is double glazing salesmen or this one. The absolutely crucial thing about cold calling is that, certainly for financial services products, those making the calls should be absolutely clear who they are calling from and why they are calling so that people have the opportunity to put the phone down quickly.

Lord Stevenson of Balmacara (Lab): My Lords, I declare an interest as chair of StepChange, the debt charity. Is not the problem with debt management companies that the regulatory functions, as the Minister said, have only just started and that we are not taking advantage of some of the measures that already exist in the United Kingdom? Has the Minister looked at the situation in Scotland, where statutory relief is available to those who get involved in free debt advice schemes so that they are not charged additional interest and the pressure from people such as cold callers and others is reduced?

Lord Newby: My Lords, I am not aware of the situation in Scotland but I will willingly look into it.

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South Sudan

Question

2.43 pm

Asked by Baroness Hodgson of Abinger

To ask Her Majesty’s Government what steps they are taking to ensure that any future peace settlement in South Sudan is inclusive.

Lord Wallace of Saltaire (LD): My Lords, we have made clear to all parties in South Sudan the need to support an inclusive peace settlement, through high-level messaging from UK Ministers and through the close engagement of the UK’s special envoy to the South Sudan peace talks. We have also directly supported efforts to ensure that South Sudanese civil society is engaged, notably through our backing for the IGAD-led symposium in June. We welcome the announcement that peace talks are planned to restart on 30 July. The UK will continue to press for an inclusive outcome.

Baroness Hodgson of Abinger (Con): I thank the Minister for his Answer. I gather that the situation in South Sudan is absolutely dire at the moment. There is acute food insecurity, about 1.4 million people have fled their homes and there are around 4 million who need acute humanitarian assistance. Many of them are women who have fled with their children. I gather that there are very high levels of sexual violence and that women and girl children are particularly vulnerable. Can the Minister please assure me that particular attention will be paid to the women’s concerns and that their voices will be heard at the peace talks?

Lord Wallace of Saltaire: My Lords, the situation is dreadful. Many of those who have fled their homes have therefore missed the planting season, which means that there is a real possibility of very substantial famine in six to nine months’ time. We should in no sense underestimate how serious the situation is. Of course, it is not simply one conflict; there are all sorts of overlapping local and trans-border conflicts that affect South Sudan. The Government are fully engaged. We are glad to see that UNMISS, in its assistance to refugee camps, is paying special attention to the need to protect women and children, but we are conscious that many are at risk.

Lord Boateng (Lab): My Lords, very often in that part of Africa the church is the sole common point of reference between the different tribal and ethnic groups. Will the noble Lord please ensure that both the FCO and DfID make use of the good offices of the ecumenical representative of the World Council of Churches and of the councils of bishops and evangelical churches in order to ensure that there is proper resourcing for peace and reconciliation work? It does not come cheap but it is effective.

Lord Wallace of Saltaire: I entirely agree that the churches are among the strongest and most widespread civil organisations in that deeply embattled country. Of course, many of the civil society organisations are

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now in refugee camps outside Sudan. I pay a particular compliment to those aid workers who are helping in South Sudan, in conditions of very considerable insecurity. Many of them come from British NGOs. We all recognise how difficult the situation is and we are certainly working with the churches as far as we can.

Lord Alton of Liverpool (CB): Does the Minister agree that too much time in South Sudan has been focused on state building rather than nation building, and that that is reflected in the 38% of revenue that has been spent on armaments in South Sudan compared with the 7% spent on education? As we approach the peace process, will he ensure, as the noble Baroness, Lady Hodgson, argued, and as the noble Lord, Lord Boateng, has just said, that the representative nature of the peace process becomes more apparent, including not only warlords but many of those who have suffered, not least the women in South Sudan?

Lord Wallace of Saltaire: My Lords, this is, of course, a very new country and there has not been very much time for either state or nation building so far. We are certainly working through IGAD to pull in as many civil society organisations as we can in order to ensure that we do not have warlord-dominated negotiations of the sort the noble Lord suggested.

The Lord Bishop of St Albans: My Lords, it is evident that the long-term process of finding an inclusive Sudanese-led reconciliation can begin only once hostilities cease and a political settlement and resolution is reached. This is why international diplomacy is so vital. Will the noble Lord tell the House what plans the Government have to address the current understaffing of the UK Sudan unit, which has a role in this?

Lord Wallace of Saltaire: My Lords, the number of staff in the UK Sudan unit has fluctuated over the past few months; my understanding is that it is now rather larger than it was two or three months ago. I do not think that we can wait until the fighting stops to begin negotiations; local fighting is likely to continue for some considerable time and we have to start to move to construct at least the basis of some form of government now.

Lord Collins of Highbury (Lab): My Lords, I very much welcome the comments of the noble Lord, but he just mentioned the number of refugees outside South Sudan. In fact, 180,000 refugees have arrived in Ethiopia and the number is expected to grow to 350,000 by the end of the year. What further steps will the Government take to ensure that Ethiopia and other neighbouring countries do not themselves collapse under the weight of this terrible tragedy?

Lord Wallace of Saltaire: My Lords, that is a problem not only for this conflict but for the Syrian conflict and the neighbours of Syria as well. The United Kingdom is the second-largest donor to South Sudan and those donations include assistance to refugees in surrounding countries. IGAD, the international action group, operates as a means through which all the

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neighbouring countries get together. I emphasise how serious the conflict is. It is estimated that perhaps 7 million out of the 10 million people in South Sudan may be short of food or under famine conditions by this time next year.

Lord Avebury (LD):My Lords, I welcome the agreement between the parties that representatives of the people displaced by the conflict will take part in the peace talks. Will the representatives be selected by IGAD or by some other means, and if so, what will be the process? Will the talks to be started on Wednesday cover the details of how the transitional Government of national unity is to be established?

Lord Wallace of Saltaire: IGAD is currently consulting outside the country with potential civil society representatives who will be included in these discussions. This will in no way be a beautiful or perfect set of arrangements. If we manage to achieve some sort of transitional Government of national unity, we will have done extremely well.

Baroness Hayman (CB): My Lords, I declare an interest as a trustee of the Disasters Emergency Committee and echo the Minister’s comments about the courage and commitment of the workers for those aid agencies who are out in South Sudan. They all report a desperate humanitarian situation in which it is not just the lack of resources—I pay tribute to what the UK Government have done in this—but ongoing fighting that is a barrier to those most in need receiving aid. Does the Minister agree that with more than 50% of farmers not able to plant in this year’s rainy season, unless a long-term enduring agreement is reached, this crisis will not only continue but deepen?

Lord Wallace of Saltaire: My Lords, there has never been an effective and functioning state in South Sudan. It is a new country born out of civil war. It is going to take a long time to construct an effective state administration with the ability to provide education and order within the 10 provinces with a large number of tribal groups and some 200 different languages. This is a major preoccupation with which all the states around South Sudan are engaged. Britain, the United States and Norway represent the troika of outside Governments who are most concerned. Of course we want other Governments to be concerned. It is good news that China has now recognised that it also has interests at stake and is considering providing additional troops to the UN peacekeeping forces.

Lord Anderson of Swansea (Lab): My Lords, of the Governments who are most concerned, Uganda and Kenya are members of the Commonwealth. The Commonwealth has substantial experience in the field of internal reconciliation. Do the Government see any role for the Commonwealth and for members of the Commonwealth in this sad situation?

Lord Wallace of Saltaire: It is also important to ensure that we have Ethiopia and—as far as there is a Government in Somalia—Somalia on board. There are problems with allegations that Ugandan troops are too close to the side of President Kiir and biased

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against Mr Machar, so there are a number of delicacies that would raise questions about a Commonwealth role.

Viscount Ridley (Con):My Lords, will the Minister confirm that efforts to eradicate the guinea worm continue in this region? It is a terrible parasite that is on its last legs. Through the excellent work of this Government supporting the Carter Center, it is down to its last handful of cases in South Sudan. It would be a terrible pity if the parasite were to escape again.

Lord Wallace of Saltaire: My Lords, in conditions where it is extremely dangerous for aid workers to be outside towns and where there are now severe problems in making sure that polio vaccination continues, I doubt that we have the capacity at present to ensure that the guinea worm eradication programme continues, but I will write to the noble Viscount.

Railways: High Speed 3

Question

2.54 pm

Asked by Lord Holmes of Richmond

To ask Her Majesty’s Government what the timeline is for the development, construction and completion of HS3.

Lord Popat (Con): My Lords, the Government have asked Sir David Higgins to produce an ambitious proposal for connecting the great northern cities. This work will look at how to bring the benefits of high-speed rail to the north more quickly, as well as initial proposals for faster east-west connections, including options on route, timescales and cost, by the time of the Autumn Statement later this year.

Lord Holmes of Richmond (Con): My Lords, does my noble friend agree that if combined with high-speed broadband across the region and increased capacity at Manchester Airport, High Speed 3 has the capacity to once again enable the northern cities to be economic powerhouses—a 21st-century Cottonopolis?

Lord Popat: My Lords, we need to unlock the economic potential of our northern cities. The cities of the north are individually strong, but collectively not strong enough. Therefore, the floating idea of the Chancellor to have an HS3 was welcomed, but we have a lot of work to do on that.

Lord Rosser (Lab): My Lords, last week in this House my noble friend Lord Faulkner of Worcester stated that it was,

“generally understood that the Chancellor’s announcement about HS3 came as a complete surprise to the Department for Transport”.—[

Official Report

, 21/7/14; col. 926.]

The noble Baroness, Lady Kramer, did not deny that, and today is a second opportunity for a government Minister to do so. Is the commitment

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from the Government a commitment to build HS3? Is it, 10 months from an election, simply an announcement to look at the case for HS3, from a Chancellor from a northern constituency who was speaking at the Museum of Science and Industry in Manchester and worried about whether the Conservatives would hold on to such seats as Calder Valley and Colne Valley? If it is a commitment to build HS3, what benefits were revealed by the cost-benefit analysis, and who did it?

Lord Popat: My Lords, that was a long question—in fact, many questions. The Chancellor has set out a vision for how to unlock economic potential in northern cities. Something remarkable has happened to our northern cities in the last 30 years. They have done very well. It is time that we take them to another level. One way to do so is to have the infrastructure investment. We are having HS2, which has been widely discussed in this House. HS3 is a floating idea. We wait for a further report from David Higgins to justify a business case for HS3. But we need to rebalance the economy, we need to support our northern cities and HS3 will probably become a welcome idea.

Lord Bradshaw (LD): My Lords, I wonder whether the Minister will reflect on the fact that whenever HS3 is built it will be a long time, and there is a very urgent need to improve east-west connections right across the country—from Norwich to Liverpool, Lincoln to Birmingham and so on. Is it not much more important to concentrate on getting these schemes working and, at the same time, to make provision for a through facility at Leeds which will link Liverpool, Manchester, Leeds and Hull and completely revolutionise the situation?

Lord Popat: My Lords, the Government have invested more than £600 million for the Northern Hub. I agree with the noble Lord that we need to speed up the works that are going on in the Northern Hub to make sure that we have the right connectivity between our major cities and towns. I agree with him that the work is in progress but there is more to be done.

Baroness Farrington of Ribbleton (Lab): My Lords, the Minister confused me a little by referring to a floating idea. In the north, we like straight yes or no. Are the Government—the Department for Transport, the Chancellor and the whole Government—committed to meeting the needs of the north, or could this idea float away again after the general election?

Lord Popat: My Lords, the government policy is to rebalance the economy. The announcement by the Chancellor was to see how we could unlock the economic potential of the northern cities and make them into a hub for economic growth. HS3 is an idea that has come from the Chancellor, and we are quite categorically saying that this will depend on the report that we will have from David Higgins before the Autumn Statement.

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Schools: Local Oversight

Question

2.58 pm

Asked by Baroness Jones of Whitchurch

To ask Her Majesty’s Government what plans they have to increase local oversight of schools.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, arrangements for the management of academies and free schools will be enhanced by the collective expertise and wisdom of eight regional schools commissioners supported by their head teacher boards. Two RSCs are already in situ, and the other six start in September. We have also strengthened the guidance for local authorities on intervening in maintained schools, and inspections are undertaken using a risk-based approach, with more frequent inspections for those schools not performing well.

Baroness Jones of Whitchurch (Lab): I thank the Minister for that reply. Last week, when dealing with the Trojan horse Statement, he conceded that the department has to take its fair share of the blame for the failings that occurred in Birmingham. However, does he realise that, at the heart of the situation, people have lost confidence in the Secretary of State’s ability to manage thousands of schools from the centre? Does he not see that the proposed regional commissioners for academies who he has just mentioned just add a further level of confusion, as they will not apply to all state schools? Surely what is needed here is a strong system of local oversight for all schools, such as our proposed directors of school standards, that would give parents, teachers and governors real confidence that their voices will be heard and that poor standards will be addressed.

Lord Nash: I do not recognise the picture that the noble Baroness paints. We believe that this system is efficient; in devising it we were advised by people who have set up national and international organisations. We find that the position of the party opposite is confusing. On the one hand its leader tells us that nobody wishes to revert to the local authority system, while on the other its policy adviser, Mr Blunkett, says that he wants to have between 80 and 150 directors of school standards, all supported by their own bureaucracies, and many of whom will be recycled local authority people. We do not think that that is the way forward. There is no role for RSCs on maintained schools; that is a role for local authorities, and, as I say, we have clarified their role.

Baroness Williams of Crosby (LD): My Lords, my noble friend will recognise, I think, that a substantial number of academies very much regret the lack of clear local accountability. Can he therefore tell us whether the new Secretary of State will consider a method under which local accountability can be more clearly established so that problems such as those arising from the Trojan horse story in Birmingham will be obviated at local level and not have to turn into a national horror of one kind or another?

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Lord Nash: Our solution to ensuring better local accountability is to have a system of regional schools commissioners which is run by head teachers. Personally, I trust head teachers to be better wired into their local systems than bureaucracies and bureaucrats are, any time. We are also increasingly seeing the emergence of regional multi-academy trusts, which are proving particularly effective.

Baroness Bakewell (Lab): My Lords, after the Trojan horse allegations, it has been reported that teachers who spoke out at the time are now suffering harassment and the threat of losing their jobs. What do the Government propose as a way of protecting whistleblowers locally so that they are given enough courage to come forward and speak out?

Lord Nash: The noble Baroness raises a very good point. We are doing all that we can to ensure that that does not happen. Indeed, there are some teachers we are particularly concerned about who had themselves been causing harassment and who have now been suspended from their jobs. We are talking to Ofsted about expanding its whistleblowing arrangements to cover exactly this kind of situation.

Baroness Howe of Idlicote (CB): My Lords, will the Government ensure that mandatory training is introduced to reduce the risks associated with school governance? I declare an interest as president of the National Governors’ Association.

Lord Nash: We have not yet gone as far as mandatory training. We have a high expectation that all governors will be trained where necessary and that they should be chosen for their skills. We brought in this big focus on skills rather than representation: governors may come from all walks of life, but they must have the expectation that they will be trained. We have also brought in tightening regulations so that where governing bodies feel that one of their governors needs training and they refuse to take that training, they can be suspended.

Baroness Perry of Southwark (Con): Can my noble friend confirm for me and for the House that the overwhelming success of the vast majority of free schools and academies is the best evidence that allowing autonomy and freedom to schools and heads is the best way of raising standards?

Lord Nash: I am grateful to my noble friend for her comments. The overwhelming success of the programme is unarguable. Some 24% of free schools are rated outstanding, which makes them by far our highest performing group of schools; converter academies are far more likely to retain or increase their Ofsted rating at the next inspection; and sponsored academies are increasing their performance at a rate approximately twice that of other schools.

Baroness Sharp of Guildford (LD): Can the Minister please tell the House what are the responsibilities of the members of the local governing board when the academy chain has trustees who appoint the head?

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Lord Nash: These are arrangements which are sorted out under a scheme of delegation between the trustees and the local governing board. They can delegate quite a few of the responsibilities, or limit them, but all academy trusts have to make this very clear in their schemes.

Lord Grocott (Lab): Whatever the arguments—and they are substantial—between the two sides of the House on the merits of the Government’s policy of allowing so great a range of different administrations for secondary schools, what is unarguable, as I am sure the Minister will agree, is that the Government’s programme has resulted in a huge increase in the Secretary of State’s personal responsibility—whoever he or she might be—for the ultimate management of so many secondary schools. Given that no individual could possibly do this on their own, can he tell us what structures are in place within the Department for Education, how many people are employed within those structures, and how much it costs? We might then get some sort of measure of how this awesome responsibility is being undertaken and who on earth is undertaking it.

Lord Nash: The Secretary of State, to put it simply, has always been responsible for schools in this country. I cannot put it better than this:

“If a school is not delivering sound education for its pupils, and a different way of running the school would yield a different and better result, it is our duty to institute the change”.

I could not have put it as well—and not surprisingly, as that was a former Prime Minister, Tony Blair, speaking last week. We believe that the regional schools commissioners are the right structure. As for cost, this Government inherited a department from the previous Government that had no concept of value for money. We have halved the cost of running it in real terms. I will write to the noble Lord if he would like the figures. However, the actual cost of running the regional schools commissioners will be something like £5 million, compared with the huge expense of the bureaucratic system that the party opposite proposed to put in place.

Baroness Sharples (Con): Can my noble friend say how many of these schools have children arriving at them for whom English is their second language?

Lord Nash: The proportion of pupils in schools with English as a second language has risen substantially. I will write to the noble Baroness with details on the different types of schools.

The Earl of Listowel (CB): My Lords, the Minister has pointed to the importance of head teachers in his answers. Can he say whether we have a sufficient number of head teachers in secondary and primary schools now?

Lord Nash: It has always been the case in the recent past that we have appeared to have a shortage of head teachers. We are increasingly seeing younger heads coming forward and academy chains growing their own senior leadership teams. Teaching schools are now, of course, also playing an increasing part.

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Baroness Oppenheim-Barnes (Con): Does my noble friend agree that the previous Secretary of State for Education has been a hero in this field in introducing and carrying out policies that have greatly enhanced educational opportunities for children throughout the country?

Lord Nash: I entirely agree with the noble Baroness’s comments. He is the first Secretary of State for many years, I think, to stop the decline in school standards. His changes, which are dramatic, will take years to have effect, but we are already seeing quite significant early signs of the positive nature of their effect.

Right to Die at Home Bill [HL]

First Reading

3.08 pm

A Bill to create a right to die at home.

The Bill was introduced by Lord Warner, read a first time and ordered to be printed.

Consumer Rights Bill

Order of Consideration Motion

3.08 pm

Moved by Baroness Neville-Rolfe

That it be an instruction to the Grand Committee to which the Consumer Rights Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 60, Schedule 1, Clauses 61 to 63, Schedule 2, Clauses 64 to 70, Schedule 3, Clauses 71 to 75, Schedule 4, Clauses 76 and 77, Schedules 5 and 6, Clauses 78 and 79, Schedule 7, Clause 80, Schedule 8, Clauses 81 to 91.

Motion agreed.

Paternity and Adoption Leave (Amendment) Regulations 2014

Copyright and Rights in Performances (Extended Collective Licensing) Regulations 2014

Community Interest Company (Amendment) Regulations 2014

Motions to Approve

3.09 pm

Moved by Baroness Neville-Rolfe

That the draft regulations laid before the House on 23 and 26 June be approved.

Relevant documents: 4th and 5th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 21 July.

Motions agreed.

28 July 2014 : Column 1420

Electricity Capacity Regulations 2014

Electricity Market Reform (General) Regulations 2014

Contracts for Difference (Allocation) Regulations 2014

Contracts for Difference (Electricity Supplier Obligations) Regulations 2014

Contracts for Difference (Definition of Eligible Generator) Regulations 2014

Contracts for Difference (Standard Terms) Regulations 2014

Renewables Obligation Closure Order 2014

Motions to Approve

3.09 pm

Moved by Baroness Verma

That the draft regulations and draft order laid before the House on 23 and 30 June be approved.

Relevant documents: 4th and 5thReports from the Joint Committee on Statutory Instruments, 6th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 24 July.

Motions agreed.

Road Safety (Financial Penalty Deposit) (Appropriate Amount) (Amendment) (No. 2) Order 2014

Drug Driving (Specified Limits) (England and Wales) Regulations 2014

Motions to Approve

3.09 pm

Moved by Lord Popat

That the draft order and draft regulations laid before the House on 19 June and 3 July be approved.

Relevant documents: 3rd and 6th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 24 July.

Motions agreed.

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Local Government (Transparency) (Descriptions of Information) (England) Order 2014

Motion to Approve

3.10 pm

Moved by Lord Ahmad of Wimbledon

That the order laid before the House on 24 June be approved.

Relevant document: 5th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 24 July.

Motion agreed.

Criminal Justice and Courts Bill

Committee (4th Day)

3.10 pm

Relevant documents: 2nd Report from the Constitution Committee, 3rd Report from the Delegated Powers Committee, 14th Report, Session 2013-14, from the Joint Committee on Human Rights

Clause 50: Wasted costs in certain civil proceedings

Amendment 69A

Moved by Lord Beecham

69A: Clause 50, page 54, line 31, leave out “must” and insert “may”

Lord Beecham (Lab): My Lords, the amendment is to Clause 50, which deals with the Government’s new provisions in respect of wasted costs orders. Such orders fall to be made at the discretion of the court when it is thought by the court that the conduct of lawyers for the parties, or one of the parties, may have acted in such a way, either by deliberate act or by act of omission, so as to prolong the case unnecessarily and lead to costs which should not have fallen to either side or to the court system to pay.

The Government consulted about improving the system, as they described it, for wasted costs orders, and have in the end come forward with this clause, which requires the court to consider reporting lawyers to the regulatory agency to which they are responsible. Those agencies would be the Law Society, the Bar Council and, I assume—perhaps the Minister will correct me if I am wrong—the Chartered Institute of Legal Executives, if it is involved. These considerations would apply both to court proceedings and to proceedings in the tribunal system.

There was a consultation on this matter, and the responses of the Bar Council and the Law Society were quite interesting. The Bar Council certainly took the view that the Government’s proposals were flawed and opposed them in pretty forthright fashion. They responded to a number of questions—for example, on whether the fee should be charged to cover the costs of

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any oral hearing of a wasted costs order and whether that fee should be contingent on the case being successful. The Bar Council’s response was that:

“A person seeking to defend a wasted costs application should not be required to pay a fee at an oral hearing … It is appropriate to require a party asking for a wasted costs order to pay a fee upon making the application, as a disincentive to unfounded applications and satellite litigation”.

I assume that, since the Government are not legislating on that point, they have accepted the Bar Council’s view in that respect.

A general question was also asked about the possible scope for any changes relating to wasted cost orders for cases other than judicial reviews. The Bar Council’s response to that was very clear. It stated that the Jackson reforms, instituted by Lord Justice Jackson over a year or so ago now,

“ought to be permitted to take their full effect before further changes are made. The costs budgeting provisions of the Civil Procedure Rules are intended to reduce the costs of civil litigation as a whole and ought to reduce the prospects of a party paying for the avoidable errors of a legal representative”.

It did not see how any additional cost provisions would materially assist.

3.15 pm

The Law Society was somewhat briefer, as is the society’s wont in these matters, and described what was Clause 36 in the Bill as debated in the House of Commons—now Clause 50—as “unnecessary”. The society made the valid point that:

“The court already has the discretion to make a lawyer personally liable to pay any litigation costs”.

The additional sanction therefore seemed to be “superfluous”—it might be thought a piece of legislative window dressing. The society also made the statement, on which it would be interesting to hear the Minister’s comments, that:

“The Solicitors Regulation Authority would not take further action if notified that a wasted costs order has been made against a solicitor”,

on the grounds that:

“The existing liability to a financial penalty is sufficient sanction”.

If the solicitor transgressed—heaven forefend that that should ever happen, but if it did—then the financial penalty incurred by the imposition of a wasted costs order by the court would be sufficient and the Law Society would not take any further steps. There was also a suggestion that reference should be made to the legal aid authority, but it seems it would have no power to do anything. Quite what the rationale of that would be remains to be seen.

The clause has no place in the Bill at all. It is not necessary, for reasons which have already been explained. It is purely window dressing. The sensible thing would be for the Government to withdraw it—hence our intention to oppose it. On the amendment, if the clause, despite all logic, remains in the Bill and is enacted, to make it clear that it does not impose a strict duty on the court or tribunal, the wording should be such that the court “may” make such a reference, rather than be required to make such a reference, which looks like the implication of the clause as drafted. I beg to move.

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The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, a wasted costs order transfers costs caused by the legal representative’s improper conduct from the party to the legal representative personally. The clause places a new duty on the courts, where a wasted costs order is made, to notify a legal representative’s regulator—I confirm that all the regulators mentioned by the noble Lord, Lord Beecham, would be included, within the definition of the 2007 Act—and/or the Legal Aid Agency, where the court considers it appropriate to do so.

The clause’s rationale, and the reason it should stand part of the Bill, is that there are no further formal consequences when a wasted costs order is made. The Government’s view is that the implications of receiving a wasted costs order should be strengthened to encourage legal representatives to consider more carefully decisions they make, both in handling claims and in deciding whether or not to pursue a case. The changes introduced by the clause seek to achieve this, and I will therefore in due course urge that Clause 50 stands part of the Bill.

Amendment 69A, in the names of the noble Lords, Lord Beecham and Lord Kennedy, seeks to replace the duty to consider notifying the regulators or the Legal Aid Agency with the discretion for the court to decide whether or not to notify them where it considers that it is appropriate to do so. It does so by changing “must” to “may”. In the Government’s view, the amendment is unnecessary. The mandatory requirement—the “must”—goes no further than requiring the court to notify where it considers it appropriate. The court is not absolutely required to inform the listed bodies or persons, or to inform any one of them, but to inform such of them, if any, as it considers appropriate. If the court does not consider it appropriate to inform any of those listed, it does not have to do so. Accordingly, it has to consider whether it is appropriate to inform one or more of them but it is not obliged to do so in a particular case: it is entirely a matter for the court. The discretion that the amendment seeks to introduce is already provided for in the clause as drafted.

Our view is that the courts should consider making a notification in every case where a wasted costs order is made but that it would be inappropriate to require it in every case. We agree that it is a matter for the courts based on the facts of the individual case. When notified of a wasted costs order, it will be for the relevant body to decide what, if any, action should be taken. Clause 50 does not make mandatory any action, as in the Government’s view that is properly a matter for the body based on the individual circumstances.

The noble Lord asked about the position of the Bar Standards Board, the Solicitors Regulation Authority and, I think, the Legal Aid Agency. The independence of the regulators is a fundamental principle and we do not wish to undermine this by setting out what action they should take upon receipt of a wasted costs notification. The Government have been in touch with the relevant bodies, informing them of the changes under Clause 50 and offering advice as to how they may wish to proceed. The Bar Standards Board has advised that it would treat the matter under existing

28 July 2014 : Column 1424

procedures as an expression of concern about a barrister’s conduct. It might choose to investigate and could ultimately take formal disciplinary action if it considered it appropriate to do so. The Solicitors Regulation Authority would also welcome wasted costs order notifications and would treat such information in the same way as it treats all intelligence that it receives. The Legal Aid Agency is looking into taking account of wasted costs orders using existing contract performance management mechanisms for current legal aid contracts and contracts commencing this August. If adopted, contract managers would consider the number and financial value of wasted costs orders made and discuss them with the provider directly. The Legal Aid Agency might consider it appropriate to issue a contract notice or to take other contractual enforcement steps.

In view of the explanation that I hope that I have provided, and in view of the fact that I understood this probably to be a probing amendment, I respectfully ask the noble Lord to withdraw Amendment 69A, and I urge the Committee to agree to Clause 50 standing part of the Bill.

Lord Beecham: I suppose that I should have declared an interest as a member of the Law Society, although I confess—thank heavens—that I am not actively practising my profession and have not done for some time.

I thank the Minister for his explanation. I am still slightly at a loss to understand how it can be claimed that, as far as the solicitors’ profession is concerned, the clause would make any difference, given the Law Society’s stated response, as I have already indicated, that:

“The Solicitors Regulation Authority would not take further action if notified that a wasted costs order has been made against a solicitor”.

I do not know whether that has been discussed directly with the authority or whether there has been subsequent discussions and a change of position. It just stands slightly at odds with the Minister’s reply. Perhaps he would care to look into that and write to me, placing a copy of the response in the Library, because it looks as though different approaches may be being adopted by two of the three parts of the profession.

Having said that, I certainly concur with the noble Lord that this is essentially a probing amendment and I beg leave to withdraw it.

Amendment 69A withdrawn.

Clause 50 agreed.

Clause 51: Strict liability: limitations and defences in England and Wales

Lord Faulks: My Lords, I now turn to Clauses 51 and 52 and government Amendment 86. Clause 51 amends the Contempt of Court Act 1981 by introducing a defence available to publishers or distributors. This provides that, where they have published material relevant to proceedings but prior to those proceedings becoming active, they cannot be in contempt unless the Attorney-General has given notice that proceedings are active. If the publisher fails to remove the material,

28 July 2014 : Column 1425

the Attorney-General can commence contempt proceedings. Clause 52 provides a related right to appeal against court injunctions.

These clauses were included in the Bill at introduction to implement recommendations by the Law Commission intended to reform the law of strict liability contempt. The purpose was to remove the burden on publishers to monitor online archives for potentially contemptuous material, while protecting a defendant’s right to a fair trial. However, the Government have received representations from media organisations making it clear that they oppose the measures. The Joint Committee on Human Rights also commented on the issue in its 14th report of this Session. The Government have carefully considered those concerns. We remain of the view that the proposals are balanced and measured but we are satisfied that the existing law will continue to provide satisfactory protection to the integrity of legal proceedings.

Since the measures were intended to assist the media but the media do not want them, we see no purpose in proceeding with the clauses. The then Attorney-General therefore announced in a statement on 30 June, and I also gave notice at Second Reading, that the Government had decided not to pursue the measure and would seek to omit the clauses from the Bill. Amendment 86 is consequential to the omission of Clause 51, since there is no purpose in defining its extent. I urge the Committee to agree that Clauses 51 and 52 should not stand part of the Bill.

Lord Beecham: My Lords, as the noble Lord the Minister said, the Government have had second thoughts—somewhat belatedly, but nevertheless just in time—about their proposal to create a new defence to the strict liability rule in relation to the offence of contempt of court, where material published on the internet before criminal proceedings commence remains accessible online. The objects of the Government’s policy are clearly laudable but the method involved the Attorney-General issuing notices to publishers identifying prejudicial material. While the notion seems sensible in principle, the JCHR has pointed out concerns that this risks creating what it described as an “arbitrary or disproportionate” exercise of power by the Attorney-General, since the Bill in no way qualified the power by restricting its exercise to where there might be a,

“substantial risk of serious prejudice”,

despite the Government’s indication that this was their intention.

The JCHR also questioned whether the “public interest” defence contained in the Contempt of Court Act 1981 was affected by the Bill as it was drafted. Perhaps the Minister would care to respond to that. I appreciate that it is almost irrelevant but it would be interesting to know whether the Government had taken that point in the original draft. The committee went on to express surprise at the Government’s state of denial that the arrangements had any implications for the freedom of expression and, further, that they did not intend to lay down regulations about the exercise of the Attorney-General’s power. This looked an appealing notion in many ways but it was ill thought

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through and led to some wholly inadequate drafting of the clauses that the Government have now withdrawn, having clearly had second thoughts about them.

It would be churlish not to welcome this apparent change of heart; after all, for every Minister that repenteth there is much rejoicing—especially when it comes to the Ministry of Justice—if not in heaven then in legal and judicial circles. However, none of this must be taken by the less responsible elements of the media as a licence to produce or permit the continued publication of material that might prejudice a fair trial. We have seen the media—sometimes the print media but also other forms that have such wide circulation nowadays—engage in such publication too often.

It may be necessary to revisit the issue at some point, but in that case I trust that this or any succeeding Government would look carefully at the points raised by the Joint Committee on Human Rights, which certainly merit reflection. If anything were to be done along the lines of, or motivated in the same way as, the Government’s original proposals, obviously it would be sensible to incorporate those concerns and to deal with them in a way that might meet them if it became necessary—although one would hope that it would not—to strengthen the law in this area. Perhaps the second to last thing that anyone would want to do would be to curb the freedom of the press; the last thing that anyone would want to do would be to prejudice the possibility of a fair trial. The media has a role in ensuring that that highly desirable end is met in all circumstances. I do not dissent from the noble Lord’s withdrawal of the two clauses.

Clause 51 disagreed.

Clause 52 disagreed.


3.30 pm

Clause 53: Upper age limit for jury service to be 75

Amendment 69B

Moved by Lord Kennedy of Southwark

69B: Clause 53, page 56, line 35, leave out “but under seventy-six”

Lord Kennedy of Southwark (Lab): My Lords, in moving Amendment 69B, I shall speak also to the other amendments in the group. I am not against allowing older people to serve on juries but I want to understand how the Government have come to the decision that it should be restricted to people under the age of 76. Over the last few decades, the qualifications and prohibitions determining who can serve on a jury have undergone significant changes. Before 1972, jurors were drawn only from those who owned property of a prescribed rateable value, which tended to ensure that all juries were white, male, middle-class affairs.

In 1972, eligibility was extended to anyone on the electoral register. In 1998, the lower age limit was reduced to 18 and the upper age limit was raised to 70. Older people serving on juries could be a very positive

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thing. It is a fact that we are all living much longer. Allowing older people to participate in the jury room will allow us to benefit from their experience. Will the noble Lord, Lord Faulks, tell the Committee whether he believes that a court will have to make any additional provisions to enable older people to serve on juries or does he believe that the extension to 76 will not need any additional provisions, which is why the Government have set that age limit?

Amendment 69D seeks to amend the Bill by giving the judge a power to limit the use of electronic communication devices for a period of time. Having people surrender their devices, as the Bill proposes, probably goes a little too far. If the average length of a jury trial is a week or two and a juror lost the use of their device for that time, it could cause considerable difficulties. We all know that smartphones are getting more advanced. Banks and companies are already talking about the elimination of plastic cards for credit and debit transactions that can be undertaken by mobile phones. Will the noble Lord tell the House what he believes is covered by the words “electronic communication devices”? Is that a mobile phone, an iPhone or similar device, a tablet or laptop? What devices is he talking about?

I very much agree that jurors have to understand their responsibilities and the important role that they play in the criminal justice system. Many years ago, I was a member of a jury in a serious criminal trial. I ended up being the foreman of the jury. It was not a “Twelve Angry Men” moment but I remain impressed at how the jury conducted itself during the trial and during the deliberations a couple of weeks after the commencement of the trial. That was 25 years ago and none of the devices we take for granted today was around.

The Government, the Courts Service and the judiciary have to do everything possible for the juror clearly to understand their responsibility in what they are undertaking. They must also make clear what they are not allowed to do. If they break the law in these matters, there are serious penalties. If the noble Lord cannot tell the Committee today, perhaps he will write to explain what happens when a juror arrives on the first day at the Crown Court. I hope that an officer of the court will explain in simple and clear terms the duties and responsibilities, and the restrictions—what can or cannot be done. That should follow information that they should have received in writing in advance. If necessary, the judge should reinforce that at the start of the trial.

Amendment 69J in my name and that of my noble friend Lord Beecham seeks to improve the information provided for jurors. It states that, “on the first day”, jurors will be required to,

“sign a declaration to say they will … not undertake their own research … base their verdict only on the evidence presented at court … not seek or disclose information about any case they try”.

That, along with the Courts Service, will make the jurors’ obligations very clear to juries.

We also include a requirement for the Department for Education to require all schools to deliver teaching about the role and importance of jury service. I think

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we are very well served by the jury system in this country and citizenship education is very important. I am a big supporter of our education system teaching people not only how to read and write and giving them a broad knowledge, but how to understand the practical things in the role that citizens play in our society. The role of a jury is an important part of that.

Amendment 69H makes very clear what I think is the case but does not appear to be very well known: namely, that disclosing information or deliberations in the jury room for the purposes of allowing approved academic research is not an offence. It is important to make that clear and our amendment seeks to do that. Being able to understand what goes on in the jury through academic research provides us with valuable information for the criminal justice system. I beg to move.

Lord Faulks: My Lords, Clause 53 amends the Juries Act 1974, raising the upper age limit for jury service from 70 to 75 years of age. Raising the age limit to 75 will mean that juries better reflect the current demographic make-up of the adult population and will allow juries to benefit from the experience and knowledge of those aged 70 to 75. The existing age limit for jury service was set by the Criminal Justice Act 1988, which raised the upper age limit from 65 to 70. However, that was more than 25 years ago, and it does not reflect the current healthy life expectancy of older people in England and Wales. On that basis, we believe that it is reasonable to expect people aged up to and including 75 to sit as jurors if summoned.

Amendments 69B and 69C would remove the upper age limit altogether. That would be a very different matter. Over the age of 75, there is an increasing risk that people would be unable to perform jury service and as a consequence would seek to be excused for that reason. We do not believe it would be right to put people in those circumstances to the trouble of having to apply for excusal, or indeed to burden the taxpayer with the additional cost of administering those excusals. Our view is that the appropriate age limit is 75. I will, in due course, ask the noble Lord to withdraw the amendment and will argue that Clause 53 should stand part of the Bill.

As to Amendment 69D, Clause 54 provides a judge with the power to order members of the jury to surrender their electronic communications devices for a period. The noble Lord, Lord Kennedy, asked me to define that. I respectfully refer him to Clause 55(2)(5), where it says that,

“‘electronic communications device’ means a device that is designed or adapted for a use which consists of or includes the sending or receiving of signals that are transmitted by means of an electronic communications network (as defined in section 32 of the Communications Act 2003)”.

I hope that clears things up for the noble Lord.

The Government do not believe that the term “limit the use of” is sufficiently clear. It would allow jurors to retain their devices in the jury room even when a judge thought it necessary in the interests of justice that the devices should not be available to the jury during their deliberations. The Law Commission recommended

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that devices should be surrendered and we believe that this is right. The provision provides judges with the discretion when making an order to take account of circumstances. They can only do so when the order is necessary or expedient in the interests of justice, and proportionate to that aim. With those assurances, I ask the noble Lord not to press that amendment. Usually, jurors will be able to use their devices and they may be required by the judge or the coroner in some circumstances when they are deliberating to surrender their electronic communication device, but it is not a blanket ban on the use of devices at other times or a blanket ban for the duration of the jury service.

Clause 55 also provides powers for a judge to order court security officers to conduct a search of a member of the jury so as to determine whether the juror has failed to surrender a device in accordance with an order made under Clause 54. We have aimed to ensure that the power to search is not an overly intrusive one, and goes no further than is necessary to ensure that a judge’s order, made in the interests of justice, is complied with.

Clause 55 also provides powers for security officers to retain articles surrendered or seized. If it is not possible to enforce the judge’s order, there will be a much greater risk that devices would be retained and potentially used during deliberations, thus bringing a risk of an offence being committed. It would also be harder to bring a successful prosecution and thus would reduce the effectiveness of the measures we are taking to deal with juror misconduct. I therefore argue that the clause should stand part of the Bill.

Amendments 69E and 69F would remove the requirement that proceedings for the new offences of researching a case and sharing that research with other jurors should be brought only by or with the consent of the Attorney-General. These offences concern damage to the administration of justice and public confidence in it. The Attorney-General is well established as the guardian of the public interest in the administration of justice. This is evident in, for example, his responsibility for bringing or consenting to proceedings in the case of contempt.

We believe that the Attorney-General should continue to maintain oversight of the public interest where such juror misconduct arises. Proceedings are very rare and we believe that the close involvement of the Attorney-General in cases of juror contempt should continue when such misconduct is prosecuted as an offence. I fear that I cannot support this amendment and urge the noble Lord not to press it.

Amendment 69G would change the scope of the offence in Clause 58, which inserts a new Section 20C into the Juries Act 1974. The proposed offence stems from a case before the Divisional Court in 2013 where a juror had posted on Facebook the fact that he was trying a defendant charged with a sexual offence on a child, and suggested an intention on the juror’s part not to try the case fairly. We want to ensure that proper criminal sanctions and procedures apply where a juror engages in behaviour that can give rise to a suggestion that they will not try the case fairly. Such

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behaviour brings the jury system into disrepute, leads to the perception of unfair trials and potentially causes trials to collapse.

We committed to and have given very careful consideration to the amendment proposed. The effect of the amendment would be to change the offence from an objective test to one that was more subjective. It would therefore be difficult to prosecute and prove and there is a risk that it would need to be proved that the juror did have that intention. Our view is that it should be a criminal offence where a juror intentionally posts material on the internet and that material allows someone reasonably to conclude that the juror is, for example, biased for or against the defendant. This conduct could throw doubt on the fairness of the trial and lead to it being stopped or result in an appeal. There is also an additional precaution in the use of the offence that any prosecution requires the consent of the Attorney-General. I therefore cannot agree to this amendment and ask the noble Lord not to press it.

Amendment 69H would add an exception to the offence in new Section 20D to provide that it is not an offence to disclose information for the purpose of allowing approved academic research into jury deliberations—the matter specifically referred to by the noble Lord, Lord Kennedy. We believe that it is of the utmost importance that the confidentiality of jury deliberations is protected and that disclosure is permitted only where absolutely necessary. If the amendment were made, it would mean that approved academic research into substantive jury deliberations would be allowed.

The Law Commission recommended that research should be allowed into the substantive content of jury deliberations. It suggested that this type of research could be used to inform and undertake reform to improve the jury system, while enhancing public understanding of trial by jury. However, as noted by noble Lords at Second Reading, research into juries currently does take place. Academics are currently able to undertake meaningful and important research without infringing Section 8. Indeed, during the Bill’s public evidence session, Professor Cheryl Thomas, the leading academic regarding jurors and jury trials, commented that she had,

“never been hampered by section 8 of the Contempt of Court Act 1981”.

Personally, I have sympathy with the amendment, in the sense that a fundamental system of trying the most serious criminal offences should not be beyond examination by academic research. Any restrictions need justification. However, the Government will be responding shortly to the Law Commission’s recommendations on this matter. I therefore cannot agree to this amendment and ask the noble Lord not to press it.

As to Amendment 69J, the objective of the new clause is to ensure that jurors understand their responsibilities. That is something on which all noble Lords can agree and much is already done to that end. A video about the role of the juror, which is shown to all jurors, makes clear that only evidence adduced in court should be considered. It explains that jurors should not carry out research into the case or disclose

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information about it and that doing so could amount to contempt of court. The Criminal Practice Directions require trial judges to give similar instructions to jury members.

3.45 pm

Lord Carlile of Berriew (LD): I am grateful to my noble friend for giving way. I should declare the interest of having appeared for the juror in the case to which my noble friend referred a few moments ago. I make no comment on the case or the result, but the jury video and the instructions given to jurors were not perhaps quite as good as they might have been, particularly for a young juror under the age of 21 who used his social media almost as a part of his body. Can we be reassured that when these new provisions are brought into force a new jury video will be made available immediately, as well as revised instructions, so that jurors young and old, including those between the ages of 70 and 75 who also enthusiastically use their social media, really understand what they are not permitted to do? It can be very confusing.

Lord Faulks: I am grateful to my noble friend for that intervention. Clearly this matter should be taken very seriously. I do not think that these directions are frozen in time or form, and the debate as to precisely how best to communicate what there is agreement on over the use of electronic communications will go on. I entirely take my noble friend’s point about the degree of attachment to them that exists, depending on the individual and not necessarily depending on their age.

The new clause proposed would impose statutory obligations on the Department for Education, the Judicial College and HM Courts and Tribunals Service, and on jurors themselves, in connection with jury service. These obligations cover the same ground as some recommendations from the Law Commission, which we are still considering and to which we will respond shortly. The crucial point, however, is that if it were decided to implement them, or to make any further suggestions about improving directions to jurors or about jury management issues as opposed to trials of particular cases, legislation would not be required. It could be done administratively, and in our view that would be a better course than accepting the suggested amendment. I invite the noble Lord to withdraw it.

Lord Stoddart of Swindon (Ind Lab): May I say a word about the proposed age limit of 75 for serving on a jury? I had better declare my interest straight away because I was born in 1926. It seems that anybody older than 75 is being written off as no longer fit to take part in an important public duty. Bearing in mind that lately we have had people of 84 and 85 being tried in court, we should call upon those over 75—perhaps, say, up to 100—provided that they are able to carry out the duty. It may be insulting to people of mature age who are still very intelligent and keep up with affairs, particularly public affairs, to debar them from what other people are asked to do to help the public weal and their fellow citizens.

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Lord Faulks: I am grateful for the contribution of the noble Lord, Lord Stoddart, to the issue, which I entirely accept is delicate. There can be no doubt that he would discharge the role of juror in an exemplary fashion and to the great benefit of all those who were tried—either in a way that they would want or not.

The respondents to the consultation about the upper age limit were almost equally divided as to whether there should be one, and I do not pretend that it is an easy issue, but the Government’s view was that, notwithstanding the health and vigour of many over the age of 75, an increasing number of people would find it difficult or almost impossible to sit as jurors and would therefore seek to be excused jury service. They might not want to have to go through the process of seeking to be excused jury service. Rather than putting them through the process of applying for excusal, and spending taxpayers’ money dealing with that additional administrative burden, the age limit is set at 75. I do not pretend that there is any precise science behind that, but it reflects a balance of different arguments.

Lord Ponsonby of Shulbrede (Lab): From the point of view of the magistracy, where there is currently retirement at 70, it is the view of the Magistrates’ Association that that is about right and that it should not be increased to 75. The reason for that view is that many defendants who come before the Bench are much younger. Obviously that is true in the youth court, but it is true in the adult court as well. The issue is regularly debated at the Magistrates’ Association, and the view of the association is that 70 should stay as the age of retirement for magistrates.

Lord Faulks: I am grateful for that intervention. The noble Lord, Lord Ponsonby, makes a good point in the sense that a defendant might feel more confident if there was not such a wide age disparity between him and someone aged, say, over 75. The noble Lord reminds me that the upper age for judges is 70, so it is not unreasonable to restrict jurors to the age of 75.

Lord Mackay of Clashfern (Con): I think that it is fair to say that the ultimate upper limit for judges is 75; that of course accounts for a good number of our noble and learned friends who are here today. The difficulty of fixing that limit was just the same as for jurors. The general view among the judiciary at the time, and I hope that it remains its view, was that 75 was a reasonable compromise because people—not everybody—over 75 become increasingly less able to perform the judicial function, which the jury function is, as the years progress. Therefore, you have to get some sort of balance, and 75 seems as good as any.

Lord Faulks: I am grateful for that contribution. My noble and learned friend states the difficult issue very well.

Lord Kennedy of Southwark: My Lords, the noble Lord, Lord Stoddart, makes an important point about the age of jurors. Of course, many noble Lords are over the age of 75 and make an important contribution

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to our deliberations. The noble Lord is absolutely right: many people over that age are able to make a contribution to the courts on jury service.

I thank the noble Lord for making the point about communication devices in the Bill. I wanted to be clear about the importance and use of these devices. They are used more and more and I wanted to be clear if they were to be taken away or if it was just a matter of a stern instruction from the trial judge. My noble friend Lord Ponsonby talked about magistrates retiring at 70. I hear the point he makes but if we are to get rid of jurors and others at 75, perhaps the time has come to consider whether the age for magistrates should be 75 as well. With that, I beg leave to withdraw the amendment.

Amendment 69B withdrawn.

Amendment 69C not moved.

Clause 53 agreed.

Clause 54: Jurors and electronic communications devices

Amendment 69D not moved.

Clause 54 agreed.

Clause 55 agreed.

Clause 56: Research by jurors

Amendment 69E not moved.

Clause 56 agreed.

Clause 57: Sharing research with other jurors

Amendment 69F not moved.

Clause 57 agreed.

Clause 58: Jurors engaging in other prohibited conduct

Amendment 69G not moved.

Clause 58 agreed.

Clause 59: Disclosing jury’s deliberations

Amendment 69H not moved.

Clause 59 agreed.

Clause 60 agreed.

Schedule 9 agreed.

Clause 61 agreed.

Schedule 10 agreed.

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Clause 62 agreed.

Amendment 69J not moved.

Clause 63 agreed.

Amendments 69K and 69L not moved.

Clause 64: Likelihood of substantially different outcome for applicant

Amendment 70

Moved by Lord Woolf

70: Clause 64, page 64, line 35, leave out “must” and insert “may”

Lord Woolf (CB): My Lords, there would have been a time when the noble Lord, Lord Pannick, could have been here, but I think he is in the Supreme Court at the moment. In those circumstances, I hope that your Lordships will not mind my leading when I was looking forward to being junior counsel with regard to the submissions that the noble Lord, Lord Pannick, was due to make. I hope that my presence does not mean that I get it all wrong in this different capacity in which I now find myself.

I am reminded of a time many moons ago when I had to be at the same time in the Court of Appeal before Lord Denning and before Lord Widgery in the Divisional Court, in what are now called the Senior Courts. Having investigated the matter very fully, I came to the conclusion that the appropriate thing to do was to go before Lord Widgery and leave my pupil watching the situation in the Court of Appeal. As fate would have it, as normally happens in these situations, the matter came on in quite the opposite way from that expected and the pupil had to rise to his feet in the same way as I do now. Unfortunately, he did not appreciate which side he should be on and he made submissions to great effect before Lord Denning, which were diametrically opposite to what I was meant to be advancing on behalf of the Crown. Lord Denning was not at all put out by this. What he did was to say, “Those were very clear submissions, Mr So-and-so, but perhaps what you really meant to say was X, Y and Z”, and in that way justice was done.

4 pm

In my submissions now, I am very much concerned with the way that justice should be done to those who want to rely upon judicial review. What I have to say to the Committee with regard to Part 4 applies to the various provisions in it, all of which in some way operate on judicial review. Judicial review has been an area where what has happened with regard to procedure and practice has been a matter for which the judiciary has been responsible. It has tried to balance—successfully, I suggest—three different interests: those of the citizen, those of the Executive and those of the judiciary. The ability to perform the difficult task of operating as a judge in public law is quite different from the position of a judge who is hearing a private law case. In public law, the judge always has to remember that, while the

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interests of the individual citizen making the application for judicial review are of the greatest importance, so are the interests of the public body which, in the case of the Government, has responsibility for governing the country.

Judicial review has therefore been tailored to have special protections for the Executive. In particular, there is the unusual requirement of permission to bring proceedings. Once proceedings are given permission to be brought, the whole process is heavily laden with discretions in the court. In this area, I make the general remark that it is not a very good idea for the legislature to intervene because it may not appreciate the full significance of the position with which it wants to interfere.

Clause 64 puts an obligation on the courts to take action if they come to the conclusion that it is highly likely that the outcome of the application,

“would not have been substantially different if the conduct complained of had not occurred”.

In many situations, the courts already regard that as an important matter to take into account and, in their discretion, will refuse relief—indeed, they will refuse permission to make the application—if they are of the view that the application is misconceived and it is not appropriate that it should go forward, even though there may be some technical reasons why it could be successful. Clause 64 has the effect of changing what is the court’s discretion to take that action into action which it must take. That is very different, because it would need to decide whether someone who has a remedy—that is the premise of Clause 64—should be turned away from the court even without having his case heard, as the refusal applies to the process of granting permission to apply for judicial review as well as judicial review itself. This would be very unfortunate. In particular, I do not think, with the greatest respect to the draftsman of Clause 64, that he had in mind the increasingly important jurisdiction of the High Court, on application for judicial review, to grant declarations.

In the case of a declaration, what the court does is to clarify the legal position. It may well be possible to have a case—I shall refer in a moment to one in which I was an advocate—where what is at stake is a matter of only a few pounds, but where the citizens in general will all be affected by a few pounds. We do not want, in that situation, to have more than one application; otherwise it is simply duplicating the work of the court. A single application will be made and the court will come to a decision. If the decision is in favour of the applicant, he may recover the few pounds to which I referred. The provision in Clause 64 would, it seems to me, make that impossible. It is clear from the Explanatory Note that the Government have in mind declaratory relief in this context. This illustrates why the proposal is most unfortunate. The position is one where the courts need to have flexibility, so as to do justice to the different parties, as I have indicated. The clause, unless the Minister makes it clear that I am wrong on this, will prevent that.

The case I had in mind to illustrate this was the case of Congreve v the Home Office, which involved television licences. Mr Congreve knew that the BBC was going

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to put up the licence fee, so instead of waiting until his licence expired, he decided to apply for a licence early so as to pay the lower fee. He was successful, contrary to my efforts. Lord Denning explained that this was a position in which there was a clear breach of the law by the BBC and Mr Congreve should have his remedy. The BBC was influenced by the fact that it did not want Mr Congreve to give a lead to all the other citizens who would jump on the bandwagon and make applications in the same way, which would deprive the BBC of a substantial sum of money, but he did it himself and he is to be admired for doing so. The case is an example of how the rule of law is upheld by the courts even though the amount may, at first sight, seem trivial.

This is quite a common occurrence in planning cases, where applicants are bringing a case not only on their own behalf but on the behalf of many persons indeed. There is nothing exceptional about it. The Government should look again at their proposals for Clause 64 and, in particular, should not persist with seeking to insert that provision into the Act.

This is just an illustration of the faults that are exactly the same in the other provisions. The Government have taken on a task that they should not be performing. It was well understood in the courts that matters of practice and procedure are normally best left to the rule committee to handle. It would not make the sort of mistake that I have indicated. Especially when one is dealing with the remedy of judicial review, it is very important that one avoids tying the hands and discretion of the court so that it cannot come to the right answer in the case.

Other provisions are linked to Clause 64 and can be dealt with in the same way with regard to this group. One is the provision of information about financial resources. This is a very unusual provision in Clause 65. It requires information to be given by an applicant on an application for judicial review about his resources for bringing the proceedings. I do not understand why this was thought to be an appropriate matter to be dealt with in statute. If a judge hearing an application feels it is important to find out the financial resources of an applicant, he has plenty of powers to do that. There is no need for a statute. Why burden the application for judicial review in every case, as I understand it, with an applicant having to give information about his resources, even though it is not a matter which will arise in the particular case? There is no need for a statutory provision of some complexity to be placed on the statute book to deal with it.

The same situation arises with regard to Clause 67. Intervention by third parties—

Lord Faulks: I am most grateful to the noble and learned Lord for giving way. I just want to clarify one thing for the benefit of the Committee. The noble and learned Lord is speaking of a number of different clauses. It may be that he is seeking to illustrate a theme and an overall point that is relevant to this group, but he will, of course, understand that his two most recent references are not in the group we are currently debating.

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Lord Woolf: I am grateful to the Minister for drawing the attention of the Committee to that point. I am well aware that that is the situation. The Minister was entirely right. I am saying that each of these provisions is not only wrong in its application but the collective effect should be considered. The provisions need to be considered together because, if I am right in what I am saying, there has been wholesale interference in one provision after another in the discretion of the court in an area of the greatest importance to the ordinary citizen and to the rule of law in this country. Perhaps the Minister will allow me to come back, if need be, but I do feel that it is possible to deal with this only holistically, and that is what I hope I have been doing.

4.15 pm

The position is the same with regard to the capping of costs. That is an area where, in judicial review, there have been fairly recent developments, and those have been properly catered for by the courts, and they do not need these provisions. I submit that the whole of this part is a misuse of the powers of the Government in this sense. It is not that Parliament cannot intervene; of course Parliament can intervene and can pass legislation, but this is one of those areas where one would expect the Executive to be very sensitive to interfering with the discretion of the judiciary, and where, as far as I know, nobody is complaining about how it is exercised, in situations where the Government will always have the ability to appeal if they are not satisfied with the decision.

I hope that the Committee will look very critically at these provisions. They may not seem to be matters of very great substance, but there is a point of important principle here which has to be established and maintained.

Lord Carlile of Berriew: My Lords, I wish to make three short points in support of the noble and learned Lord, Lord Woolf. I do not know how long this debate is going to continue. We heard that the noble Lord, Lord Pannick, is unable to be here at the moment. I hope I will be excused for being absent for about half an hour from 5 pm.

The three points I wish to make are these. First, it seems that there is a belief that it is very easy to obtain permission to move for judicial review. For those of your Lordships who are not lawyers—and happily there are many here—I want to lay that belief to rest. Like myself and, in a much more distinguished way, other noble and learned Lords, anybody who has faced the challenge of a list of cases requesting permission for judicial review will know that a vast percentage of those applications are refused at the paper application stage.

I shall give your Lordships what might be a useful insight. The typical High Court judge or deputy High Court judge—and it is in that latter capacity that I have sat and continue to sit—is faced on any given day with about a dozen paper and oral applications for judicial review. My estimate, based on my own experience and on talking to others—there may be more formal statistics—is that at most one or two of those applications move on to the next stage, and the other 10 or 11 are refused. Nobody should, therefore, get the idea that it is very easy to challenge the Government or public bodies by way of judicial review.

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The second point is about the phrase “highly likely”, which appears in Clause 64. I think the use of this phrase confuses especially the lawyers on the standard of proof which is required in judicial review applications. Does “highly likely” mean “more probable than not” or less than “beyond reasonable doubt” or what? Why do we need to add this almost tautologous standard of proof to a well honed system in which judges—who are, believe it or not, trained in these matters, and many of whom have great experience—know exactly what to do without an artifice being added for reasons which are not clear?

The third point which is of real concern to me is that the test in new subsection (2A) that Clause 64(1) seeks to insert in Section 31 of the Senior Courts Act 1981, which refers to the outcome not being,

“substantially different if the conduct complained of had not occurred”,

is a licence for vestigial consultation. Many cases that come before the High Court on applications for judicial review are cases in which the Government and other public authorities that are devolved parts of government have failed to carry out proper consultation with the public. Sometimes the failure to carry out consultation is a very serious matter indeed, because it is a denial of the right of the public not only to be told that they are being consulted, but to express their views in that consultation and to have them considered in a full and proper way.

There have been many cases in which judicial review has been granted because of the failure of consultation, and in many of those cases the outcome is eventually exactly the same as that which the Government would have wished before the failure of consultation. Therefore it may be thought by the judge highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred. Sometimes that failure of consultation is—or borders on—the contumelious by the public authority concerned. I suggest that we should not license that kind of failure by governmental authorities which would thereby deprive the public of the right to have proper consultation. I hope that those three points are useful to your Lordships. I do not want to add anything else, because the noble and learned Lord, Lord Woolf, has given a very full exegesis of the concerns.

Baroness Lister of Burtersett (Lab): My Lords, first, I apologise that I have not spoken on the Bill before, but I wanted to intervene on Part 4. At Second Reading, the noble Baroness, Lady Hamwee, observed that Part 4 raises “citizens’ issues”. I hope that noble Lords will agree that it is therefore important that non-lawyers—who were referred to by the noble Lord, Lord Carlile—add their voice in support of the highly expert advice from the great legal minds in your Lordships’ House. Not only are those citizens’ issues, but they affect in particular poor and marginalised citizens, including, in the words of the Bar Council,

“some of the weakest and most vulnerable in society”.

Here I declare an interest as an honorary president of the Child Poverty Action Group, and a former director and legal research officer—believe it or not, although I am not a lawyer—of that group back in the

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1970s, when the group spear-headed what came to be known as the social security law test case strategy, under the late Sir Henry Hodge, or the plain Henry Hodge as he was then, as CPAG’s solicitor. According to an evaluation of that strategy, Henry Hodge saw it as having an,

“independent value in obtaining substantive improvements in the law and in producing a higher standard of behaviour from administrators”.

Those are still two important functions of judicial review that are now under threat.

I fear that CPAG may be one of the organisations that the Government had in their sights, given that Mr Iain Duncan Smith accused it of “ridiculous and irresponsible behaviour” and “an ill-judged PR stunt” when the High Court dismissed a challenge to the housing benefit cap, for which it had been granted a cost protection order and permission on the basis that the case was arguable and raised issues of public importance. In contrast, Sir Stephen Sedley, in oral evidence to the Joint Committee on Human Rights, of which I am a member—I have a feeling that the Minister was himself a highly valued member at that point—said that,

“not all public interest litigation is hostile; it can be creatively used, and has been in the past. The Child Poverty Action Group was a pioneer in this respect, to elucidate the law to the benefit of everybody who is involved. Social security is a very good example, because it is an arcane and hideously complex area of law, where it is easy to get things wrong and a mistake can affect millions of people. It is very much to the advantage of everybody if the Government collaborates with challengers like the CPAG in getting the issue to the core”.

I speak today not so much as an honorary president of CPAG but as a member of the Joint Committee on Human Rights, which recommended that this clause be deleted from the Bill. I therefore support the contention that it should not stand part of the Bill, as well as supporting those amendments that would revert to the status quo. I will not rehearse at any length the arguments of the JCHR, some of which were quoted on Second Reading; there are arguments of both principle and practice, including that we should not be condoning unlawful decision-making, and the danger that it would mean that the permission stage became a full dress rehearsal and therefore could be more rather than less costly. However I would like to emphasise what is perhaps a key human rights point, when we said that it may give rise to breaches of the right of access to court in ECHR Article 6(1),

“a right which, in order to be practical and effective rather than theoretical and illusory, includes the right of access to a legally enforceable remedy”.

On this argument alone I believe that the clause should not stand part of the Bill. But as we have heard today, and earlier at Second Reading, there are also other persuasive arguments.

Lord Brown of Eaton-under-Heywood (CB): My Lords, I support all the detailed amendments in this group but, more fundamentally, I support the root and branch opposition raised by all those who have put their names to Clauses 64 to 67 not standing part of the Bill. It is with regard to that basic question that I want to say a few words today. Whether the thinking

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which underlies these provisions is, as some would suggest, positively and consciously mischievous, or merely misconceived and mistaken, I do not know. However, it would be a grave misjudgment if we were to allow them to pass into law. If they are persisted in, I hope that on Report this House will reject them.

What the Government are proposing here is a heresy. With regard to Clause 64, it is a double heresy. Without repeating all that I said at Second Reading, I will try to explain what I mean. The basic heresy here is to treat judicial review—which of course is the title of the whole of this part of the Bill—as a matter generally suitable for legislation at all. Essentially, I suggest that it is not. I seriously wonder if those who are behind these proposals understand the intrinsic nature of this supervisory jurisdiction. Judicial review is no more and no less than the exercise of the courts’ inherent jurisdiction to ensure that the decision-making of the Government, their executive action, remains within the bounds of legal propriety. As the noble and learned Lord, Lord Woolf, explained today, it is judge-made law par excellence; it has been and should remain, essentially, a matter for development and control by the judges themselves. If ever there was an area of the law that for the most part should remain free from legislative interference, it is this. It is difficult, perhaps impossible, to think of any field of law less suitable for legislation, for government diktat as to its future development. Most obviously this is so with regard to provisions which, as here, are designed to essentially cramp and narrow down judges’ powers and discretions. In this field of inherent control of administrative action, it is intended to discourage those who seek to question the legality of governmental decision-making.

In truth, these provisions would make serious inroads into the separation of powers; they would represent a significant shift in the constitutional balance between the judiciary and the Executive. That is the basic heresy that underlies the entirety of Part 4—the supposition that Parliament rather than the judges should decide how the court’s supervisory jurisdiction should be exercised, and its development and control, which are essentially matters of procedure.

4.30 pm

The other separate heresy lies in Clause 64 itself, and the proposition in this provision that, even supposing that a public body has behaved unlawfully—perhaps flagrantly unlawfully—in reaching a particular decision, the court must nevertheless ask itself whether it is “highly likely” that the outcome would in any event have been substantially similar. If so, it dictates that the court must, without more ado, dismiss the challenge—with no relief or declaration. It is a slippery clause, as the noble Lord, Lord Carlile, has explained. As others have explained, the court on judicial review is simply not concerned with the substantive merits or demerits of the decision, only with the question whether the impugned decision was lawfully arrived at. The merits of a decision which is under challenge in judicial review are not for the court but for the public authority alone.

As compelling an illustration of that principle as one could look for can be found in an amendment the Bill to the single, brief legislative provision that hitherto

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has provided the sole statutory context for the modern law of judicial review: Section 31 of the Senior Courts Act 1981, which used to be called the Supreme Court Act until the Supreme Court came into being in 2009. The 1981 Act is, of course, mentioned in these draft clauses as the Act that they are intended to alter by so severely confining the court’s future power and discretion.

The amendment of which I speak was the introduction of a new subsection (5A) into Section 31 of the 1981 Act. Unamended, Section 31(5) allowed the High Court, in quashing a decision, also to,

“substitute its own decision for the decision in question”.

The amending provision was introduced to limit that power so that it can now be exercised only if,

“without the error, there would have been only one decision which the court or tribunal could have reached”.

There is nothing there about the judicial review court being able to impose its own decision just because it thinks that it is highly likely that its own view of the matter is to be preferred.

I suggest that those are the basic misunderstandings and misconceptions that underlie this whole attempt by legislation to cramp and stifle the court’s future powers. I made more detailed objections to Clause 64 at Second Reading. I shall not repeat them now, and I shall not deal with the other clauses not part of this group, which are similarly subject to the same basic objection that they would introduce heretical inhibitions into this area of the law, which has been a healthy development in our jurisprudence in the last 40 or 50 years.

Lord Marks of Henley-on-Thames (LD): My Lords, I hope your Lordships will forgive me if, like other noble Lords, I preface what I say about the amendments in this group with a few general remarks about the proposals in the Bill for the reform of judicial review. In his Second Reading speech, the Minister described judicial review as,

“one of the most important means by which government and other public bodies can be held legally accountable for their decisions and actions”.—[

Official Report

, 30/6/14; cols. 1541.]

As Frances Gibb, the legal editor of the Times, reported in today’s edition, he stressed that the Government regarded judicial review as,

“terribly important and we are not trying to get rid of it”.

If that is right, we should have little difficulty, as a result of these debates, in persuading the Government to accept amendments to the proposals and to the Bill to ensure that judicial review is not threatened, as I and many other noble Lords believe that currently it is.

I suggest that the Government ought to respect the following six principles. First, judicial review exists for the purpose of enabling the citizen to hold the Executive to account. Secondly, of its nature, judicial review is a public law remedy. It follows that there is often, although not always, a significant public interest in ensuring that a judicial review case is heard and determined over and above the private interests of the citizen or citizens who bring the application.

Thirdly, judicial review cases, of their nature, attract support from numbers of concerned citizens and

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organisations—sometimes campaigning organisations—with an entirely legitimate interest in the issues involved. Fourthly—perhaps this is not a principle but part of the factual background—judicial review inevitably is often unpopular with government. It is therefore important that Parliament and the courts should be astute to ensure that it is not stifled by unduly restrictive procedures or rules. The noble and learned Lord, Lord Woolf, used the word “sensitive”; I suggest that is an entirely apt description of the requirement.

Fifthly, because financial gain is often not the primary purpose of judicial review cases, it is important that they can be brought without undue expense and without unacceptable financial risk for those who bring them, often out of public concern.

I believe that the sixth principle can be expressed very simply. It is this: trust the judges. Because, constitutionally, judicial review exists for the courts to hold the Executive to account, the best way of ensuring the robustness of that review procedure, and of gaining and maintaining public confidence in the procedure, is for the judges and not the Executive to be trusted to administer it.

I turn to Clause 64, which, as your Lordships have heard, seeks to ensure that any judicial review proceedings that can be classed as academic must fail. The test the clause seeks to apply is whether an unlawful decision by an arm of the Executive has, in fact, led to a “substantially different” outcome for the applicant from that which a lawfully reached decision would have produced. If it is “highly likely”—I repeat the criticism of that phrase—that the unlawful conduct has not made such a difference, the Bill proposes that leave to apply for judicial review must not be given. If leave is given and it turns out that the case is academic in the sense I mentioned, relief must be refused.

I accept that there may be purely academic cases that should not proceed to a hearing, even where it can be established that no part of the Executive has acted unlawfully—but, as the noble and learned Lord, Lord Woolf, pointed out, the courts already have a discretion to refuse permission or relief in such a case. However, I know of no convincing evidence that in practice a significant number of cases is, or has been, brought in which it can fairly be said that the unlawful decision-making at issue must have made no difference to the outcome for the applicant.

However, the real issue here is whether the fact that a case turns out to be academic in that sense should inevitably lead to its being dismissed. I suggest that there will often be a public interest in having the conduct of the decision-maker examined and, if necessary, overruled if the decision made turns out to have been unlawfully made—even where it may be said to have made no difference.

My noble friend Lord Carlile mentioned the question of a lack of consultation where the repeat exercise, when consultation is properly carried out, may lead to the same result. However, to condemn the lack of consultation and to refuse relief in spite of it is, I suggest, entirely wrong. There is also the question of cases where points of law need clarification or where points of procedure or fact need establishing, and

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need establishing in the public interest, even where a decision might have made no difference.

Therefore, the amendments in my name and that of my noble friend Lord Carlile seek to make the refusal of relief in a case that turns out to be academic discretionary rather than mandatory and to add an extra condition for the refusal of relief. Relief, we submit, should be refused only if an application is both academic in the sense proposed in the Bill and such that the public interest or the overriding objective of dealing with a case justly does not require that it be determined. Our amendments would apply those tests both at the permission stage and at the relief stage in the High Court and in the Upper Tribunal.

I am not among those who hold the view that Parliament should never legislate on the subject of judicial review. It is the right of Parliament in our democracy to do so, and in that I differ slightly perhaps from the arguments put forward by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. However, I suggest, along with him, that we should be extremely careful before restricting by legislation the right of the courts to intervene in unlawful decision-making by organs of government where the court considers it appropriate to do so.

I can add only that the way in which judicial review has developed over the past few decades has demonstrated the very considerable respect for the breadth of discretion by executive decision-makers. It would be appropriate for the Government now to show similar respect for the need for discretion to be exercised by the judges.

Lord Horam (Con): My Lords—

Lord Davies of Stamford (Lab): With great respect, I think that it may be our turn.

Lord Horam: 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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4.45 pm

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

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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.

Baroness Campbell of Surbiton (CB): My Lords, I support all the amendments in this group, particularly Amendments 70, 71, 72 and 73 in the names of my noble friend Lord Pannick and my noble and learned friend Lord Woolf, and I oppose the question that Clause 64 stand part of the Bill. Like the noble Baroness, Lady Lister, I also need to lend my voice to this area of reform from the perspective of the ordinary person. I look at this through the prism of those with little power, little control and very little knowledge.

Clause 64 strikes a blow at the heart of democracy, viewed with the other provisions of Part 4 and the Government’s legal aid reforms. We all agree that British citizens, whether rich or poor, able or disabled, have a democratic right to access the justice system. As

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I said at Second Reading, holding public bodies to account when they get it just plain wrong is a vital part of the rule of law, and I believe that it leads to better services. I cannot understand why the Government would want to restrict it; surely it is something that we would all welcome.

The clause moves the goal posts when people seek judicial review. It lowers the test and forces judges to refuse it where currently they have discretion. In future, the courts must refuse if the outcome is “highly likely” to have been no different—a significant change from “inevitable”. This is highly likely to mean that unlawful and, I have to say, even dishonest decisions will go unchecked and public bodies will get off scot free. For some very vulnerable people in our communities, this is really serious. It flies in the face of what the Minister said at Second Reading: that Part 4 will ensure that judicial review,

“continues as a check on the Executive”.—[

Official Report

, 30/6/14; col. 1542.]

Well, this is a very strange check. More importantly, it could give rise to a breach of Article 6(1) of the European Convention on Human Rights in fettering access to the courts. It is also particularly relevant to the public sector equality duty, which requires that due process is followed. The Government may think that that does not matter. It does, crucially, as the Court of Appeal recognised in the Bracking case. The decision to close the Independent Living Fund was held unlawful because it was taken without due regard to the public sector equality duty.

I asked the Minister at Second Reading how judges would be able to weigh up “highly likely” without speculating. Surely, judges are supposed to decide on the facts— that is what I was always told—not second-guess what might have been. I have not heard from the Minister—he was not able to answer me at the time—and I really hope that he will tell me today.

The Minister has said that the aim of Part 4 is to limit the potential for abuse, such as delay. That puzzles me. If the court has to inquire into things that it would not otherwise consider until the judicial review itself, how will that reduce delay? It can only lengthen the case and increase the costs. I agree with the Joint Committee that Clause 64 should not stand part of the Bill but, if it remains, I will certainly support these amendments to reflect the current approach of the courts.

Lord Davies of Stamford: My Lords, luckily, and happily, I think there is little danger of this debate becoming a closed shop of the legal profession. It is very important that that is the case, because in my view Part 4 of the Bill, which represents an attempt by the Government to—I think one can only say—clip very severely the wings of the whole judicial review system, is something that goes to the heart of the way that we are governed, something that is of interest to every citizen as much as it is to professional lawyers. It raises questions such as: do we live in a state in which the Government are subject to the law? Is that a purely theoretical state of affairs or a practical reality? Is there some way of enforcing that principle? Is it possible for the citizen to get an authoritative view of what the

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law is? He or she is supposed and indeed compelled to obey it, but is it possible to get a judicial decision as to what the law is in a particular circumstance? Do the three powers of government operate as they should? Do they act as a balance on each other, or is one of those three powers oppressive to another? These are foundational questions and I think that we have been quite right to spend a bit of time this afternoon addressing some of these basic principles as well as the Bill.

However, I will now say a few words about the Bill. We heard two very distinguished speeches from the noble and learned Lord, Lord Brown, and the noble Lord, Lord Marks, setting out some of the central principles that lie behind this debate. I agree with much of what was said by both of them. On the central controversy between the two as to whether Parliament should legislate in the area of judicial review, I side entirely with the noble Lord, Lord Marks. It is, in my view, Parliament’s essential job to review and keep under review the constitution, and to make changes to it when it decides that that needs to happen. We created the Supreme Court recently, for example, to keep under review the operation of our legal system and the evolution of jurisprudence, to correct a tendency that we do not approve of by using statutory law, and so forth. These seem to be essential roles of Parliament and we should not shy away from that.

5 pm

However, the Government’s attempt today to change the law is thoroughly misconceived. I particularly object to the phrases

“must refuse to grant relief”,

and

“may not make an award”,

in the clause before us today. It is quite clear in principle and in practice that the judiciary, when it undertakes judicial reviews, takes into account among many other factors when it considers the merits of an application whether or not the outcome would make any substantial difference to the applicant; that is perfectly legitimate and it happens at present. To remove altogether any judicial flexibility seems to be a sinister development.

Not only that, it could be quite dangerous and counterproductive. It creates dangerous perverse incentives. I will explain what I mean. The executive branch, which is generally speaking the target of judicial reviews, has in its power very often so to change things as to ensure that the outcome, whatever the result of the judicial review, is exactly the same. I will give an example, which is not far removed from a concrete case that I can remember as a constituency Member of Parliament. Suppose that a hospital trust, with a number of hospitals within that trust in different parts of a geographical area, decides to start a consultation about the future of maternity and obstetrics in one of its hospitals. The public take that commitment to hold a public consultation quite seriously. Local GPs, patient groups, the local authority, the Royal College of Obstetricians and Gynaecologists and all other people concerned spend time and trouble producing submissions to this inquiry.

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While the inquiry is going on, the hospital foundation trust starts to undermine the existence of obstetrics and maternity in that hospital by not replacing consultants who retire, moving people to other hospitals within its jurisdiction and allowing paediatric services to lapse in that hospital. That means that obstetricians cannot operate there because they have no paediatricians to whom to hand over problematic young babies and so forth. In fact, the trust is engaged in the process of undermining, prejudging and pre-empting its own review.

It may well be that by the time people have realised what is happening an application is made for judicial review, but it may be too late to save maternity services in that hospital. It will not be possible to attract new consultants in circumstances of such difficulty, and when some specialties have already been removed, to replace staff who have already retired or been moved. It will simply not be possible, whatever happens, to replace maternity services in that hospital. Has that hospital foundation trust got away with an incredibly cynical manoeuvre? It has pretended to have a consultation but has made a mockery of the whole process.

If this clause put forward by the Government survives debate this afternoon and on Report, it would be perfectly impossible for a judicial review to give any kind of relief at all in such circumstances. Two things will have happened as a result of that. One is that there will have been an injustice because an arm of the state has clearly behaved in an utterly dishonest fashion; it should have been held to account and has not been, and that is clearly an injustice. The Government—the state, broadly interpreted—have not actually considered themselves subject to the law. The second thing is that an incentive has been created for other public authorities to behave in such a way as to prejudge the outcome of a judicial review or a threatened judicial review, so more harm will be done in future by public authorities acting in that fashion.

That is the path that in my view we would be going down if we accept this clause. The clause should not be accepted: it is very dangerous. I am sorry to have to agree with what the noble and learned Lord, Lord Brown, said—that this looks as though it is part of a package designed to weaken the element of central protection of judicial review in our system. I hope that that is not a sinister, deliberate intention on the part of the Government, but it looks awfully like it when you look at this clause and the clauses that will come in the rest of this part of the Bill.

Baroness Butler-Sloss (CB): My Lords, I recognise the points that were made on the other side of the House about delays and the deterrent effect on certain local authorities. There is a clearly a balance to be struck. But this legislation is a step too far. It is an unattractive step, as has been said by many other noble Lords. The Government are reducing significantly the right of a citizen to challenge flawed decisions of national and local government; they will not to be able to hold national and local government to account. That has come out loud and clear from earlier speakers, but I just reinforce it.

Whatever the disadvantages of judicial review may be, one must bear in mind that to go forward with this particular legislation will be a denial of justice to

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ordinary citizens—some of whom, as the noble Baroness said, are very vulnerable. I must ask the Government to step back for a moment and rethink whether there is a way forward to deal with delays and other problems without cutting the fundamental importance of the exercise of the discretion of the judge. As the noble Lord, Lord Carlile, said, only in a minority of cases is permission to go forward given. Those cases need to be heard. So I ask the Government to think again and step back. If I could use perhaps an unattractive phrase—back off on this one.

Lord Hart of Chilton (Lab): My Lords, I want to speak briefly. I was going to save myself until Report, but this afternoon I was provoked into speaking by the reference by the noble and learned Lord, Lord Woolf, to Andrew Congreve. Andrew Congreve is a partner of mine at Herbert Smith. We both went to the post office to get our TV licences when we heard that the fee was going to be increased. Andrew Congreve was provoked by the threat that his second TV licence was to be revoked by the BBC. That threat stirred him into action. He has not been very well recently. It is only to be applauded that he should be referred to this afternoon: he is now in the Law Reports and will appear in Hansard.

I wish to make a second point. The noble Lord, Lord Horam, referred to delay, as did the noble and learned Baroness, Lady Butler-Sloss. Steps are being taken at the moment to speed up the process of judicial review. Only six weeks are allowed now to bring the case—to make the application. That is a substantial cut to the period of time that was allowed before. The new planning courts, filled with judges who are experienced in this area, now sit to hear these cases. They come on very quickly. In my recent involvement, the six weeks application was made, the leave was granted quickly and the hearing took place a week ago. That was dealt with with enormous speed. If that is the process that is to be fulfilled in the future, a lot of the problems about delay will vanish.

Lord Pannick (CB): My Lords, I apologise to the noble and learned Lord, Lord Woolf, for missing the opening minutes of his speech this afternoon—indeed, I apologise to all noble Lords—as I attempted unsuccessfully to break the world record for running here from the Supreme Court.

When proposals for amendment of judicial review are brought forward by the Government—who are, of course, the main defendant in such litigation—they require the most careful scrutiny to identify whether they are indeed in the public interest and whether there is any good reason for Parliament to intervene in an area that has previously—and rightly—been left to judicial discretion. Clause 64 seems to me to fail to meet those criteria.

I have three objections to Clause 64. First, it focuses on whether it is highly likely that the outcome for the applicant would not have been substantially different. I emphasise the words “for the applicant”. The clause fails to recognise that judicial review is not concerned just with the narrow interests of the applicant. Judicial review serves the public interest, as the Committee has

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heard, by exposing systematic breaches of legal requirements by defendants. The court’s judgment—often a declaration—tells the Administration that what has been done is unlawful. Changes are then made; unlawful practices stop. Clause 64 will constitute a major impediment to that vital function of judicial review.

My second objection to Clause 64 is that a remedy may be appropriate in the interests of the individual claimant even in cases where the legal wrong may have made no difference. Last year, Lord Reed emphasised in the Supreme Court in a case concerning the Parole Board—the Osborn case of 2013, in volume three of the WeeklyLaw Reports, at page 1020, paragraphs 67 to 68—that the law requires public bodies to adopt a fair procedure to ensure not just that the right conclusion is reached on the merits of the individual case but that the subject of such a decision is not left with a sense of injustice that a wrong approach has been adopted in their case. Again, Clause 64 would prevent judicial reviews going forward for that purpose.

My third objection to Clause 64 is that it would require the court at the preliminary stage to conduct a detailed review of what would have happened had circumstances been different. That will of itself be time-consuming and expensive, and will inevitably promote satellite litigation. The noble Lord, Lord Horam, expressed concern about delay, and we are all concerned about speeding up legal procedures. Several steps have been taken; the noble Lord, Lord Hart, referred to them a moment ago.

It is important to say to the noble Lord, Lord Horam, that Clause 64 simply does not address the objective of speeding up procedures; nor will it achieve any such objective. One could have shorter time limits and arrange for speedier, expedited or shorter hearings—those are all processes that are being adopted. The Fordham inquiry for the Bingham Centre has made a number of valuable proposals.

Clause 64 simply does not address the topic; it is a blunt weapon, if removing delay is its objective. It is, for reasons that I have sought to explain, counterproductive, because it will lead to longer hearings at the leave stage and more appeals on the grounds of what would have been the result had a different approach been adopted.

Your Lordships have heard that Clause 64 has been criticised by the Joint Committee on Human Rights. Your Lordships’ Constitution Committee referred to the concern expressed by the senior judiciary during consultation that Clause 64 may well lead to unlawful administrative action going unremedied. The Constitution Committee therefore advised this Committee and the House to consider whether Clause 64 risks undermining the rule of law. I think that Clause 64 will impede the effective exercise of judicial review, and will do so for no good reason. I very much hope that the Government will think again before Report.

5.15 pm

Lord Carswell (CB): My Lords, in brief compass I will say, if I may, that I support the amendments and all that has been said about Clause 64 by those who have opposed it. I am a little hesitant to express matters in terms of my experience because the vast

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experience of noble Lords with judicial and advocacy experience is such that mine appears very minor. However, it is rather personal and I may be able to give the Committee some idea from that why I regard this as not only undesirable but unnecessary.

The courts have quite sufficient powers to deal with the matters contained in Clause 64. I can tell the Committee exactly why I say I know that. When judicial review was coming on stream in Northern Ireland in 1984 it was exactly the time I became a judge in the High Court. I was put in charge of those matters coming before the High Court and grew up with it. If I may say so, I helped to shape it and to form the judicial approach to the development of judicial review in our jurisdiction. I was very attentive all the while to the way in which it was being developed very well indeed in the jurisdiction in England and in other jurisdictions. I know from personal experience that the judges have the necessary powers. All they need to do is exercise them sensibly and robustly, with a careful eye to the justice of the individual case.

Once you write down these things and put them into legislation, as I have had occasion to say to the House before, two things happen. The first is that you cannot legislate for everything; there will be difficult and borderline cases when the shoe pinches and the exercise of discretion is an essential part of achieving justice. Secondly, once you write things down, it will give rise to an industry of finding ways round it. As the noble Lord, Lord Pannick, said, it will give rise to satellite litigation. For those reasons I strongly oppose the adoption of Clause 64. It may well be right—and I would not rule it out—that the pendulum should swing to some extent. The Government may have some perfectly valid points about matters that should be attended to, but this is not the way to do it.

Lord Paddick (LD): My Lords, I rise briefly to speak to this amendment. It will become apparent very quickly that I am not a lawyer, and never have been, but I have been involved in one case of judicial review as a result of becoming a victim of phone hacking.

The fact that I was a victim of phone hacking became known to the police, but the police did not inform either me or other victims when that information came to their notice. As a consequence, together with others, we took the Metropolitan Police to judicial review on two counts: first, over its failure thoroughly to investigate phone hacking in the first instance; and, secondly, on its failure to inform those that it knew were either victims or potential victims of phone hacking to enable them to take steps to guard their privacy. The court found that whether the police should have investigated thoroughly the first time round was entirely a matter for the police. However, on the issue of whether the Metropolitan Police should have informed the victims of phone hacking, the court found that it was under a legal obligation to inform them. That important principle was therefore established through this judicial review.

Bearing in mind that by the time we brought the judicial review we had been informed by the police that we were victims of phone hacking, can my noble

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friend the Minister confirm that the outcome of that application would not have been substantially different for us? In other words, we already knew that we were victims, but we wanted to establish the principle that the police should have told us earlier. If Clause 64 were enacted, we may not have been able to bring that judicial review and establish the important principle that the police must inform victims of this sort of crime as soon as they become aware of it.

Lord Mackay of Clashfern: My Lords, I, of course, have nothing like the width of experience that has been spoken of already by a number of noble and learned Lords and other noble Lords. However, I have a certain amount of responsibility in connection with judicial review from quite an early stage.

Your Lordships will remember that the law of England originally provided for four rights, which were prerogative writs that had the effect of controlling the subordinate powers at the insistence of the High Court. That is because the High Court is a court of universal jurisdiction. The difficulties of these particular prerogative writs were gradually appreciated and, eventually, the judges decided that it would be a good idea to have a new form of procedure called judicial review. They ultimately incorporated it in a rule of court which, as I remember, was called Order 53, and that was the situation for some time. However, it was not long before the judges themselves decided that it was not good enough to have procedure of this kind depending only on an Order 53 rule of court. It was therefore important that this became statutory and that Parliament should have responsibility for the legislation which affects and controls the process of judicial review. It is therefore 100% clear that Parliament has authority to deal with this. That does not necessarily mean, of course, that any particular action proposed to Parliament by a Government is necessarily the best thing to do.

However, I would like to mention one or two aspects of this. The first is from the point of view of planning. I used to practise some planning work in the 1950s, 1960s and 1970s and in the planning legislation there was, I think almost from the start, always a provision empowering an applicant or a person aggrieved by a decision in the planning field to apply to the court. There were two branches of that: first, where there was no power to make the decision; and, secondly, where the decision was the result of a failure of process. I think that the current form is in the Planning and Compulsory Purchase Act 2004, where the second provision is,

“that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement”.

It is important to see that it applies where the interests of the applicant have been “substantially prejudiced” by a failure of procedure.

I think that that system worked well. In due course, of course, as a result of various decisions, including a decision of this House in its judicial capacity, in which I took part, it was held that judicial review was sometimes available even when there was a statutory form of appeal, and therefore judicial review started to be used in the planning field, notwithstanding the provision that I have just referred to. A number of cases came along, one of which the noble and learned Lord,

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Lord Woolf, will remember, when somebody was faced with a document at the beginning of a hearing before the inspector, and the inspector granted him an adjournment only until lunchtime. Lord Denning and his colleagues, notwithstanding the eloquent defence by Mr Woolf, as he then was, found against the Secretary of State. However, that is a success of the old form and the present form of statutory appeal.

In a more recent case at the Court of Appeal, the leading judgment was given by the judge who was the senior presiding judge in England in my time, Lord Justice Auld, who said, on dismissing the appeal:

“In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited— some might say abused—as a commercial weapon by rival potential developers to frustrate and delay their competitors’ approved developments, rather than for any demonstrated concern about potential environmental or other planning harm. By the time of the hearing of this appeal, as is often the case, the approved scheme in issue is clearly of a piece with—”

what was already there. So, the danger of judicial review as a means of trying to damage competitors was recognised. My noble friend Lord Horam has given a number of cases in which that has actually taken place. That warning was given a considerable time ago and I am delighted to hear that now—this is a fairly recent development—there is a Divisional Court in the High Court with expertise in planning able to deal with planning applications very speedily indeed. That is highly desirable.

The other thing I want to mention is that, when I was first in practice, we did not particularly think that we were not under the rule of law, although there was no judicial review. Another aspect of the law which was quite important was that there were finality clauses in most Acts of Parliament making the decision of the Minister or the authority final and unable to be upset by any judicial procedure. That was a fundamental protection for the Executive, for local authorities and so on—all sorts of bodies had that kind of protection. The Foreign Compensation Commission happened to be the one selected for trial and in Anisminic v Foreign Compensation Commission the judges found the way around this finality clause in such a way that these finality clauses have ultimately disappeared. Therefore, the scope for judicial review is very much greater than for the prerogative writs that were in position originally.

I was involved in one of the early cases on development of judicial review in respect of the standing of, or the right to bring, such a case. Certainly, there is an interesting issue in relation to some of the clauses in this part of the Bill about forming private companies simply for the purpose of promoting a particular judicial review in the hope of protecting perhaps fairly wealthy, not in any way impecunious, people from the possibility of costs. That is a development in relation to judicial review which I think requires consideration.

5.30 pm

The idea and doctrine of judicial review is extremely important and very precious. When I was responsible for altering—or proposing to Parliament, which is the correct way to say it, I think—the jurisdiction of various courts, I was strongly of the opinion that judicial review should remain in the High Court. It has remained there, except that the top tribunal now

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has the power in certain cases to use judicial review. However, we have to be conscious of the fact that judicial review, excellent as it is, is capable of being abused. Lord Justice Auld recognised that in connection with planning, but it is not only in connection with planning that that sort of consideration may arise.

The noble Lord, Lord Adonis, who was a Minister in the previous Government and is well known to your Lordships, has written about judicial review in connection with the academies policy of the previous Government. His book is called Education, Education, Education, which is a war cry that will be fairly instantly recognised. The subtitle is Reforming England’s Schools.On page 78, he writes:

“However, if Parliament was navigated quickly and unobtrusively, the same was not true of the courts. As soon as academy projects became public, opponents seized on judicial review as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions, mostly funded by legal aid with the real opponents—the National Union of Teachers and anti-academy pressure groups—masquerading as parents too poor to afford to pay legal fees.

The legal campaign against academies was masterminded not only by these opponents, but also by solicitors and barristers who made a specialism of academies case and encouraged legal challenges…

A critical early case concerned St Mary Magdalene Academy, around the corner from my home in Islington. Islington council held an unusual local referendum in 2001, asking the borough’s residents whether they wanted a new secondary school and, if so, of what type. Virtually all those voting in the referendum favoured a new school, and the most popular option was for a Church of England school, Islington having no C of E secondary schools. The council thereafter drew up plans with the diocese of London for an existing Anglican primary school to be rebuilt as an all-through academy for primary- and secondary-age children. However, popular enthusiasm and local authority agreement did not stop anti-academy campaigners from fighting the proposal through the courts, with the support of residents in nearby multi-million-pound houses, few of whom used Islington state secondary schools or intended to do so, and who simply didn’t want a new school of any kind in their back yard. It was a classic unholy alliance”.

In due course, the case went through the courts—it took quite a long time—and in July 2006 the High Court decided in favour of the Government.

That is an account, by somebody who was affected, of the way that judicial review was used. The important thing I find from it is that, so far as possible, the people selected to try to raise the reviews were people who qualified for legal aid. In this way, the whole expense of the campaign, so far as it was financed in that way, was borne by the taxpayer. That passage, from a very responsible source, shows me that we need to think—certainly, we have to be careful—about the way in which judicial review may be used. I am not saying that everything that is said in these clauses will necessarily deal with that, but I believe the clause about finding out the financial position in relation to the judicial review is relevant to this sort of situation.

So far as the first clause is concerned, I do not intend to deal with the detail of the amendments at this stage because the Minister will no doubt wish to do so. So far as I am concerned, the first clause does not preclude the idea that, if the court thought the outcome should be a declaration, it would not be able to do so because it is the outcome for the applicant. If the outcome for the applicant is a declaration that

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there has been a practical wrong or unlawful practice and the applicant could secure that as a declaration, it would be part of the outcome. It might not make much difference for the rest of his situation, but at least that would be part of the outcome that the court might think was possible. At the early application for leave, that point could certainly be considered.

Lord Davies of Stamford: I am listening with great attention to what the noble and learned Lord is suggesting. Is he proposing to put down an amendment to allow the court, notwithstanding the restrictions that are being imposed in this Bill, in the event of what is described as being an academic case in which the outcome is not likely to be very different one way or another for the applicant, nevertheless to proceed under those circumstances if its intention is simply to make a declaration? That is not provided for in the Bill at present. Is the noble and learned Lord proposing to put down on Report an amendment that would give that suggestion effect?

Lord Mackay of Clashfern: If that were necessary. I regard it as something that could happen under the existing clause because the outcome for the applicant could include a declaration, in my judgment. It is a question of whether the court thought a declaration appropriate. If it did, it could do so, notwithstanding the provisions of Clause 64.

Lord Elystan-Morgan (CB): The noble and learned Lord, Lord Mackay, makes the very proper point that there is ample precedent for Parliament to deal with the issue of judicial review. Indeed, he traced historically how prerogative writs developed, how they were placed on an administrative basis and how, ultimately, they became the subject of specific legislation. One point must be made, however, and I am not sure that the noble and learned Lord did not touch upon it in his powerful address: that when legislation intervened in this area, it did not diminish to the slightest degree the rights of the individual, or, indeed, any of the relative positions in relation to the various powers that judicial review seeks to deal with equitably. In other words, the boundary was not moved a single inch.

My second point has already been touched on: it is about the rule of law. Many here will have read the excellent treatise by the late Lord Bingham, in which he reminded us that there are two boundaries in relation to the rule of law. The most obvious is whether a law has been technically and lawfully passed through both Houses of Parliament and received Royal Assent. However, Lord Bingham went on to make it perfectly clear that if a law was unconscionably wrong, even though it had proceeded through all those stages in a thoroughly proper and technical way, it would still be in breach of the rule of law.

The point that Lord Bingham makes is that there are two boundaries: one is the technical parliamentary boundary; the other, of course, is a boundary beyond that. Indeed, it is in that context that this whole debate is taking place. The boundary that we are talking about is the boundary of the inherent jurisdiction

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of the High Court, something which has been built up over many centuries and not spelt out by Parliament but which is nevertheless a very real and massive boundary.

If I am right—and I suggest that it most certainly is the case—that Clause 64 breaches that boundary and undermines it, there is a very strong case for changing it. That is the real relevance of the excellent debate that we have had today.