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House of Lords

Monday, 27 October 2014.

2.30 pm

Prayers—read by the Lord Bishop of Lichfield.

Introduction: Lord Lennie

2.38 pm

Christopher John Lennie, Esquire, having been created Baron Lennie, of Longsands Tynemouth in the County of Tyne and Wear, was introduced and made the solemn affirmation, supported by Lord Falconer of Thoroton and Baroness Armstrong of Hill Top, and signed an undertaking to abide by the Code of Conduct.

Introduction: Baroness Pinnock

2.44 pm

Kathryn Mary Pinnock, having been created Baroness Pinnock, of Cleckheaton in the County of West Yorkshire, was introduced and took the oath, supported by Lord Shutt of Greetland and Baroness Bakewell of Hardington Mandeville, and signed an undertaking to abide by the Code of Conduct.

Schools: Academies


2.49 pm

Asked by Baroness Jones of Whitchurch

To ask Her Majesty’s Government what steps they are taking to improve the financial regulation of academy schools.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, academies are subject to considerably more rigorous financial regulation than local authority maintained schools. For example, they have to publish annual, independently audited accounts; local authority maintained schools do not. They are subject to the rigorous oversight of the Education Funding Agency and anyone in a governing relationship with an academy, or an organisation closely linked to it, can provide services to a local authority maintained school at a profit; they cannot to an academy. However, we are continually looking at ways to refresh the financial regulation of academies.

Baroness Jones of Whitchurch (Lab): I thank the Minister for his reply, but is he concerned about the increasing number of stories of academy chiefs being paid inflated salaries, heads employing family members and friends to provide school services, lavish expenditure on hotels and travel and, recently, a head paying £26,000 for furniture for her office? This is not their money, it is taxpayers’ money, but it seems that a small minority

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are using the academy funding system as a cash cow. Does the Minister accept that the Government’s centralised oversight of these schools makes it more difficult to supervise academy school expenditure effectively? Does he now accept that that was a mistake?

Lord Nash: The noble Baroness picks out some isolated examples. I point out to her, as I have before, that 36 of the 55 pre-warning notices that this Government have issued to academy sponsors have been to sponsors approved under the previous Government. This Government have considerably tightened up financial oversight and improved things such as control of grants. Of course, these figures are but nothing compared with the £10 billion overspend the National Audit Office tells us that the previous Government were heading for under the Building Schools for the Future programme.

Baroness Perry of Southwark (Con): Will my noble friend tell us whether there is any information about the innovations and improvements that heads have been able to make since so many of them were given the freedom to manage their own budgets?

Lord Nash: My noble friend is quite right that there have been many examples of this, including more efficient purchasing, longer school days, greater freedom over the curriculum, the ability to employ subject-specific teachers in primary schools, the ability to find the money to engage more effectively with the professional communities and business, and the generation of income more effectively from their own facilities.

Lord Singh of Wimbledon (CB): My Lords, while rigorous financial regulation is important, I am alarmed to hear of a high-achieving school in a deprived area in west London where children are made to endure classroom sizes of up to 80 without adequate toilet facilities. The DfE will not release money for new premises until the financial management is completely up to scratch. Does the Minister agree that it is wrong to use children in this way?

Lord Nash: I do not recognise the example to which the noble Lord refers. I would be grateful if he would write to me as regards his specific example. The pressure on pupil places has been considerably relieved by the amount of money that this Government have spent on them, but I would be particularly interested to hear about this case.

The Earl of Listowel (CB): My Lords, is the Minister concerned to hear that a head teacher said at a recent seminar that she was having to pay rent arrears and pay for food in her impoverished community to enable children to get to school, to be able to concentrate and to do well? She was embarrassed to do this but she felt that she had to.

Lord Nash: Of course I am concerned about the point that the noble Earl makes. We have introduced universal free school meals particularly to enable pupils who come from the most disadvantaged backgrounds to be ready to learn when they arrive at school.

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Baroness Garden of Frognal (LD): Will the Minister say, where instances of apparent fraud have been notified in accordance with the guidelines, what action the Government have taken?

Lord Nash: Where we receive an instance of fraud we immediately investigate. The EFA has investigated 35 cases of fraud in academies in two years. That compares with 191 reported in maintained schools over one year. If we feel that there are causes for concern we will inform the police or, in more minor cases, introduce a financial notice to improve.

Baroness McIntosh of Hudnall (Lab): My Lords, can the Minister tell the House how many of the cases of fraud that have been alleged were uncovered by investigation by his department or by Ofsted, and how many by whistleblowers?

Lord Nash: I do not have the exact answer to that question, but it is likely that a high proportion of all cases of fraud, whether in academies or in local authority maintained schools, will be uncovered by whistleblowers.

Lord Lexden (Con): Is my noble friend confident that the Government’s financial controls are sufficiently extensive and rigorous?

Lord Nash: I am confident of that. Since this Government came into power we have halved the cost of running the Department for Education, halved the cost of building schools, and reduced by more than one-third the cost of opening sponsored academies.

Lord Foulkes of Cumnock (Lab): My Lords, since we have time, could the Minister now try to answer the question posed by my noble friend Baroness Jones?

Lord Nash: I believe I did answer that question.

Green Climate Fund


2.56 pm

Asked by The Lord Bishop of St Albans

To ask Her Majesty’s Government what plans they have to pledge funding to the Green Climate Fund.

The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con): My Lords, the UK recognises the importance of a successful initial resource mobilisation process, and is keen for the fund to become operational as soon as possible. We aim to pledge at the initial Green Climate Fund pledging meeting arranged for 19 and 20 November, ahead of the United Nations climate change negotiations at the start of December. We are a strong supporter of the Green Climate Fund, because we see it as a key new vehicle for helping developing countries adapt to climate change and follow low-carbon development paths.

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The Lord Bishop of St Albans: I thank the Minister for her reply, and I am grateful for all that the Government are doing in this important area. So far, 10 countries, I think, have pledged contributions to the Green Climate Fund, but despite his warm words recently in New York the Prime Minister was not among those offering to make a pledge. Can we have some information about how much Her Majesty’s Government intend to pledge, and can we know what else we shall put on the table, if we are to have credibility at the discussions in December in Lima?

Baroness Verma: My Lords, the UK is committed to scaling up climate finance, and we have already committed £3.87 billion from our International Climate Fund between 2011 and 2016. The first £1.76 billion of this has already been committed from the International Climate Fund, and is expected to achieve the following lifetime results. However, the right reverend Prelate is right that we need to encourage all member states to come up to the mark and ensure that they are all contributing. This is a very important area. The UK is absolutely committed, and the Prime Minister has made that very clear. He will announce his pledge in November.

Lord Teverson (LD): My Lords, regarding recent international climate negotiations, does my noble friend agree with me that we should congratulate the DECC team and the Secretary of State on the climate energy deal done at the European Council over the past couple of days? Does she agree that that illustrates that, by leadership from Britain, by persuasive argument and by building up a team of other member states around us, we can succeed in European negotiations and win for Britain?

Baroness Verma: My noble friend is absolutely right, and I could not have put it better than he has.

Lord Clark of Windermere (Lab):My Lords, the Minister carefully explained to the House the expenditure by HMG on international climate initiatives, but can she be quite specific? Is she saying that in November the Prime Minister will actually make a pledge to the Green Climate Fund?

Baroness Verma: My Lords, in case I was not clear in my initial Answer, I repeat that the Prime Minister, like leaders from a number of other countries, will pledge our support in November.

Lord Tebbit (Con): My Lords, will my noble friend say whether this money, if it is produced and paid out, will be from some magic source of which we are not yet aware, or will it be simply more borrowing to add to the deficit and to our debt?

Baroness Verma: My Lords, with other countries, we pledged to ensure that £100 billion will be made available to tackle global climate change issues. Our contribution to that thus far is £3.87 billion.

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Baroness Worthington (Lab): My Lords, on Friday the IPCC will publish the synthesis report for its fifth assessment report into climate change. It is likely to say, yet again, that there is now incontrovertible proof that climate change is a serious issue and we all must take notice of that. Does the Minister accept that Friday might be a good opportunity to point that out to some of the Back-Benchers in her party?

Baroness Verma: The noble Baroness is right. The fifth assessment report has concluded that, and many around your Lordships’ House recognise that. It is not just about Back-Benchers on my side; it is about ensuring that we deliver an informed debate, and perhaps thus far that debate has not really taken place.

Lord Lawson of Blaby (Con): My Lords, I echo my noble friend Lord Teverson in welcoming the agreement reached within Europe the other day because it was clearly non-binding, as the noted energy expert Nick Butler has pointed out in an excellent article in today’s Financial Times. It is non-binding in two ways: it applies to the European Union and not to any of the member states, where decisions are in fact taken; and it is explicitly open to review in the light of the forthcoming global conference on these matters.

Baroness Verma: My noble friend is absolutely right: that it is not a binding target. However, in the UK we have not been under binding targets before but have managed to ensure that our uptake of renewables has increased. We have almost doubled our renewable energy sources since coming into government in 2010. It does mean that we have an agreement now from 28 members, all agreeing that the targets, being non-binding, enable each member state to be free and flexible in how it reaches those targets.

Viscount Ridley (Con): My Lords, does my noble friend the Minister agree that the fifth assessment report of the Intergovernmental Panel on Climate Change has confirmed, in the same words, that there has been a “hiatus” in global warming for at least the past 15 years? Will she give us the opinion of her scientific advisers as to when that hiatus is likely to end?

Baroness Verma: My Lords, my noble friend raises a couple of issues that we would dispute in a longer debate. What we do recognise is that a change in weather patterns is happening across the globe and that climate change is occurring; it may have slowed down but that is a good thing, and it could well be that some of the measures we are taking today have helped that to occur. If we are to respond seriously to climate change and changing weather patterns, we need to be able to put in place things that mitigate and adapt to those different patterns.

Baroness Farrington of Ribbleton (Lab): My Lords, would the Minister care to confirm my understanding that, on greenhouse gases, this agreement is binding?

Baroness Verma: My Lords, the UK Government asked for a 40% carbon emissions ambition to be reached. That is something the Prime Minister put forward

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earlier this year. I am glad to say that all the European countries have agreed to that 40% greenhouse emissions target.

Lord Tomlinson (Lab): May I ask the Minister to return to the question asked by the noble Lord, Lord Tebbit? It is a very pertinent question. Is the money that is going to be pledged in November already in the Budget, or is it to be an increase in the borrowing that the Government will have to undertake, at a time when they have just hit a record for the amount of borrowing?

Baroness Verma: My Lords, we are clear that we need a Green Climate Fund. We will use a number of financial instruments to be able to achieve that.

UN Security Council


3.04 pm

Asked by Lord West of Spithead

To ask Her Majesty’s Government what benefits being a permanent member of the United Nations Security Council brings to the people of the United Kingdom.

The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): My Lords, as a permanent member of the United Nations Security Council, the United Kingdom is in a privileged position to play an active role in maintaining international peace and security. We use this position to work hard towards constructive solutions to international crises, to promote British values and to confront threats to UK security. This gives us a positive impact on stability overseas, which directly affects the security and prosperity of the people of the UK.

Lord West of Spithead (Lab): My Lords, I thank the Minister for that reply. Clearly membership is of use and value to our nation. In that case, and in the context of the national security strategy, have we looked in detail at what capabilities and attributes we need as a permanent member, bearing in mind that many countries feel they ought to be there? Does the Minister feel that the 14% cut in our defence budget since 2010 and the cut to our diplomatic capability enable us to continue in that position? Having mentioned the military, I am sure all of us want to express our admiration for the bravery and sense of duty of our men and women who have just finished 13 and a half years in Afghanistan.

Baroness Anelay of St Johns: My Lords, I gladly add my words to that sentiment for our serving personnel now and in the past and, indeed, for the United Nations peacekeepers who come from around the world to carry out such difficult tasks. With regard to matters of defence spending and the calculation of how a contribution may be made, in looking at our participation in United Nations matters we take into account overall plans with regard to security at home, in NATO and overseas more broadly. That is part of the work that is done. On the second limb of his question regarding defence spending, we are committed to allocating 2% of GDP to defence and that will continue at least until the general election. After that, of course, there is another spending review.

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Baroness Falkner of Margravine (LD): My Lords, does my noble friend agree that the privileged status that permanent membership brings also carries a responsibility to have a leadership role among other nations and organisations? In the light of that, have Her Majesty’s Government carried out an assessment of what might happen to Britain’s privileged status if it were to withdraw from the European Union?

Baroness Anelay of St Johns: My Lords, it is clear that at the formation of the United Nations, after the problems with the League of Nations, we were one of the major five states and therefore part of the permanent five members of the United Nations Security Council. We remain there and our position is strong. I do not see any future in discussing our removal. Indeed, the discussion in the United Nations area is about enlarging the Security Council. There is no threat to our membership that I can foresee now or in the future.

Lord Hannay of Chiswick (CB): My Lords, will the Minister, in the same sense in which she has just replied, confirm that there is no possibility that Britain could lose its place as a permanent member of the Security Council unless it developed suicidal tendencies? The charter makes it perfectly clear that you would have to change the wording to remove one member, and that could be done only if all five permanent members then ratified it. It is, therefore, up to us. As far as the qualifications for permanent membership are concerned, it might be useful to look at the report of the High-level Panel on Threats, Challenges and Change, which set out a long list of criteria which it believed any new permanent member ought to be able to fulfil before being accepted.

Baroness Anelay of St Johns: I entirely agree with the noble Lord, Lord Hannay, who has great experience of these matters not only in the diplomatic field but because of his role in the All-Party Parliamentary Group on the United Nations. I was very glad last week to be invited to stand alongside the United Nations Association to celebrate its 69th birthday. He is right with regard to membership, and our position there is secure.

Baroness Morgan of Ely (Lab): My Lords, the costs of UN membership are charged proportionately according to the size of a country’s population and national income. Will the Government make an equally strong song and dance about UN membership if fees go up, as they have done with the EU? Will we see members of the Minister’s party advocate withdrawal from the UN if they do?

Baroness Anelay of St Johns: My Lords, our position on the United Nations is something of which we are proud. We are proud that it works for peace and we are proud that we are part of the multicultural approach to resolving the world’s crises and the humanitarian efforts. We are going to stay there.

Lord Howell of Guildford (Con): Does my noble friend agree that if we are looking for benefits for the British people from international institutions we might

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invest more time and effort in developing our links with the Commonwealth, which contains 2.3 billion people who use English as their working language and most of the big growth markets of the future?

Baroness Anelay of St Johns: I entirely agree with my noble friend about the importance of the Commonwealth. The main objectives of the Foreign Office are always to look at policy through the prism of security and prosperity. The Commonwealth is a crucial aspect of that.

Troubled Families Programme


3.10 pm

Asked by Lord Horam

To ask Her Majesty’s Government what progress is being made with the Troubled Families programme.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con): My Lords, the Troubled Families programme is performing very well and strongly. By June this year, more than 116,000 of the 120,000 families we pledged to turn around had been identified. One hundred and ten thousand of these were being worked with, and almost 53,000 have already been turned around. Updated figures will be released shortly, showing that the programme remains firmly on track.

Lord Horam (Con): My Lords, this is an important programme because it affects the most disadvantaged families in the country. Does my noble friend think that the co-ordination between the Department for Work and Pensions and his own department which has been criticised in the past is now good? I see from his figures that the programme has been expanded since it started. What are the financial implications of that?

Lord Ahmad of Wimbledon: My noble friend raises two important points. Co-ordination was a challenge, but, increasingly, we are working well across the board, both centrally and locally, in the delivery of what is an important programme. More recently, we announced joint working with the Department of Health in identifying certain issues pertinent to troubled families. My noble friend referred also to the expansion of the programme. The programme is indeed being expanded further to include up to 400,000 more families, meaning help for even more people.

Lord McKenzie of Luton (Lab): My Lords, I hope we all agree that it is important that the Government provide effective and hands-on support to families with multiple and complex needs. But can the Government clarify whether a family once “turned around”—in their parlance—by a local authority can subsequently re-enter the Troubled Families programme? If so, how many have and what does that say about the sustainability of outcomes which the Government are claiming?

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Lord Ahmad of Wimbledon: The noble Lord raises an important point. This is about ensuring that the issues which lead to families being defined as troubled—I am sure that many noble Lords are aware of the criteria—are intervened on for the long term and turned around. The noble Lord asked specifically about re-entering the programme. The issue is not about the families concerned re-entering the programme but ensuring that the mentor and the local officials who are appointed continue to work with them. As the noble Lord rightly points out, our intention is not just to take them out of the programme on a temporary basis but to ensure long-term sustainability in education, work and good health.

Baroness Benjamin (LD): My Lords, every day before we went to school, my beloved mother used to say, “Education is your passport to life. You go to school and learn, learn, learn”. Sadly, not many parents, especially those with troubled families, motivate their children in this way, even though research has shown that reading with your child for just 10 minutes a day can have an enormous effect on their education. What are the Government doing to encourage parents in troubled families to get their children not just to attend school but to be ready to learn? How is the pupil premium helping families in this regard?

Lord Ahmad of Wimbledon: My noble friend refers to what she did before she went to school. Often, when I returned from school, I would turn on the television, albeit briefly, and I would see her teaching me a few things, and I am sure that she will continue to do so in the years ahead. Of course, the Troubled Families programme is targeted specifically at the importance of education and ensuring not just attendance at school but development and achievement there. That is why the Troubled Families programme is so important. It is about a person going in and ensuring that they deal with all facets of what is challenging a particular family.

The Lord Bishop of Rochester: My Lords, tomorrow morning the Prison Reform Trust will publish the latest edition of its well regarded Bromley Briefings Prison Factfile. Among other things that will show the continuing correlation between exclusion from school, being brought up in care and offending behaviour. In the light of this and of other responses already given, can the Minister give an assurance that the Troubled Families programme is being well co-ordinated with the Ministry of Justice’s young offenders policy?

Lord Ahmad of Wimbledon: I can give the right reverend Prelate that assurance. Indeed, in a previous incarnation when I was the Whip for the justice department, I saw the importance of many rehabilitation programmes directly through visits programmes. He raises an important part of the mix that defines troubled families. As he is well aware, one of the key elements is youth crime and targeting youth crime and anti-social behaviour. Again, what we are seeing, for the first time I believe, is not just departments working together, but people at a local level working well together to ensure that all people involved, whether in youth crime, those

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involved in not attending school, as my noble friend said, or those who are not in employment, get sustainable solutions for the long term.

The Earl of Listowel (CB): My Lords, I pay tribute to Louise Casey, who has provided admirable leadership in this area and, previously, in removing rough sleepers from the streets of London and elsewhere. I declare my interest in the register in property. Is the Minister concerned about the unfit housing available to many of our poorest families—overcrowded, often damp, neglected, and without play areas for children? Can he say what he is doing with his colleagues to ensure that pregnant mothers and mothers with very young children have decent homes so that they can feel comfortable to rear their children, making strong bonds of affection with them and avoiding this route into troubled families, with their children developing poorly and their relationship with their children deteriorating over time?

Lord Ahmad of Wimbledon: First, I join the noble Earl in his tributes to Louise Casey. She has undertaken a great initiative on the programme referred to. She is also, as the noble Earl is aware, dealing with the very challenging issues that we currently face in Rotherham and we wish her well in the inquiry there. I am sure that is the sentiment of all in your Lordships’ House. On the issue of housing, of course the Government appreciate the importance of good, sustainable housing. Therefore, as many noble Lords will know, we have embarked on a programme of housebuilding that is helping those who are most challenged in the rental sector. We are encouraging buy to rent and we are also encouraging more people to enter the housing market. The Government have a raft of different housing initiatives because we believe, as the noble Earl rightly points out, that a good home and a good home for a family at the beginning is the keystone, pivotal point and foundation to ensure that a child and, indeed, the whole family progresses.

Baroness Corston (Lab): My Lords, quite a proportion of troubled families are headed by women who are in contact with, or have been in contact with, the criminal justice system. Is it not vital that the Government continue to support the more than 50 women’s community centres in England and Wales which help such women turn their lives around and make them parents of whom their children are proud? Will the noble Lord speak to his colleagues in the Home Office and the Ministry of Justice to make sure that the Transforming Rehabilitation programme does not leave these women’s centres behind? That is what I am most concerned will happen.

Lord Ahmad of Wimbledon: The noble Baroness raises a very important point. Indeed, in raising that issue she has both great experience and has done an incredible amount of work in the area of women’s rehabilitation, particularly women offenders, and I pay tribute to that. She has raised an important point about the need to work together and to ensure that the women’s groups work at a local level. On a slightly different matter, before coming to the House, I met a women’s group dealing with domestic violence and

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identifying those issues. I talked about extending the programme to 400,000. One of the defining criteria now will be looking at domestic violence to ensure that those who are impacted are assessed and, most importantly, helped and brought back so they can be proud of their own contribution and the contributions of their families to society as a whole.

Lord Cormack (Con): Is there not a chance that we would have fewer troubled families if there was a greater emphasis on citizenship education in our schools?

Lord Ahmad of Wimbledon: As ever, my noble friend raises an important and pertinent point. Of course, I agree totally, but citizenship alone cannot turn everything around. Unfortunately, we have identified families up and down the country who need such intervention in education, employment, health. Together with that, they will want to serve as proud citizens, and citizenship classes are important in that.

Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014

Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014

Motions to Approve

3.20 pm

Moved by Baroness Neville-Rolfe

That the draft regulations laid before the House on 7 July be approved.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 23 October.

Motions agreed.

Legal Services Act 2007 (Approved Regulator) (No. 2) Order 2014

Judicial Appointments (Amendment)Order 2014

Motions to Approve

3.20 pm

Moved by Lord Ashton of Hyde

That the draft orders laid before the House on 13 June and 7 July be approved.

Relevant documents: 4th and 6th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 23 October.

Motions agreed.

27 Oct 2014 : Column 952

Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2014

Motion to Approve

3.20 pm

Moved by Lord Wallace of Tankerness

That the draft order laid before the House on 7 July be approved.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 23 October.

Motion agreed.

Criminal Justice and Courts Bill

Criminal Justice and Courts Bill14th Report (Session 2013–14) from the Joint Committee on Human Rights 2nd Report from the Joint Committee on Human Rights 2nd Report from Constitution Committee

Report (3rd Day)

Relevant documents: 14th Report (Session 2013-14) and 2nd Report from the Joint Committee on Human Rights, 2nd Report from the Constitution Committee.

3.21 pm

Clause 70: Likelihood of substantially different outcome for applicant

Amendment 146

Moved by Lord Pannick

146: Clause 70, page 67, line 30, leave out “must” and insert “may”

Lord Pannick (CB): My Lords, the amendment and some of the other amendments in this group are in my name, that of the noble and learned Lord, Lord Woolf, and those of the noble Lords, Lord Carlile of Berriew and Lord Beecham. Under this group of amendments, your Lordships turn to Part 4, with its provisions relating to judicial review. On Second Reading and in Committee, noble Lords from across the House expressed concern that the provisions in Part 4 would damage judicial review for no good reason. It is very disappointing that, since Committee in July, the Government have not come forward with any amendments of their own to address those concerns. I would be very surprised to be told that the Minister made that decision.

I invite your Lordships to bear two principles in mind when considering all of the Part 4 amendments. First, judicial review is a vital means by which central and local government and other public bodies can be held to account to ensure the legality of their actions before independent judges in public. Secondly, when proposals for amendment of judicial review are brought forward by Ministers—who are, after all, the main defendants in such litigation—the proposals require the most careful scrutiny by the House.

Clause 70 would prevent a judicial review application proceeding to a full hearing and any remedy—I emphasise, any remedy—at the full hearing if the defendant shows that it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. I have three main objections to the clause.

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First, it ignores the fact that one of the central purposes of judicial review is to identify unlawful conduct by the Government or other public bodies. If Ministers have applied the wrong rule, or they decided a matter without giving a person a fair hearing, the court will say so and it will give a declaration, even if, on the particular facts, the error made no difference. This surely serves the public interest because the risk of a public hearing before independent judges encourages high standards of administration, and once the court has given its judgment, Ministers and civil servants know that they must change their conduct for the future. That is precisely what they do. Clause 70 would undermine these valuable purposes of judicial review.

My second concern is that Clause 70 ignores the fact that even if the defect did make no difference on the facts of the individual’s case, the individual may have a personal reason to seek a declaration that there was unlawful conduct. Last year Lord Reed emphasised for the Supreme Court in the Osborn case that the law requires public bodies to adopt a fair procedure to ensure not only that the right conclusion is reached on the merits of the case but also that the subject of such a decision is not left with a sense of injustice.

My third and final concern about Clause 70 is that, far from speeding up judicial review procedures, it would require the court at the preliminary stage to conduct a detailed review of what would have happened if the defendant had acted differently. That would be time consuming, expensive and an extremely difficult exercise for the judge. It would promote satellite litigation.

Clause 70 would have very damaging effects—nor is it necessary. Judges have ample powers, which they use, to dismiss hopeless or abusive cases. To those of your Lordships who think that there is too much judicial review and that it takes too long, I say that Clause 70 is a blunt instrument to use in such a sensitive context. It would impose an absolute duty on the court. It would prevent the judge from considering whether, in the particular circumstances of the individual case, there is good reason to allow the claim to proceed or to grant a remedy such as a declaration.

Amendment 146, which I commend to the House, would maintain a judicial discretion to consider the circumstances of the individual case. That is surely appropriate in this context. Amendment 146 is to be read together with Amendments 147, 149, 151, 152 and 154, each of which substitutes judicial discretion for the judicial straitjacket which is proposed by Clause 70.

I have spoken briefly in moving this amendment because there is a great deal of business for the House to get through today on Part 4. I hope that that will not lead your Lordships to doubt the importance of this issue. I beg to move.

Lord Beecham (Lab): My Lords, the last four years have seen the construction of major roadblocks on access to justice. Some 650,000 claimants a year, and their dependants, can no longer benefit from civil legal aid or advice, resulting in the collapse of law centres, extreme pressure on advice agencies and the expense and delays caused by litigants in person unable to receive legal advice in the preparation or presentation of their case. As we heard just last week, the family courts are often now clogged with litigants in person.

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The imposition of charges for employment tribunal claims have led to an 80% reduction in applications. Large cuts in fees for criminal legal aid threaten to reduce the chances of a fair trial.

However, as the noble Lord, Lord Pannick, has made clear, Part 4 of the Bill proposes even more insidious changes which would narrow the scope of judicial discretion in cases in which the lawfulness of decisions made by the Government themselves, or by public agencies, is challenged through the process of judicial review. As the Equality and Diversity Forum reminds us in its briefing, the Master of the Rolls, Lord Dyson, has asserted that,

“there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”.

The Bill seeks deliberately to make it more difficult and potentially more expensive for citizens, either as individuals or whose interests may be represented by a charity, to seek a ruling from the courts as to whether decisions which might have far-reaching effects were properly made. I remind your Lordships that they already have first to obtain the leave of the court to bring such a case, and very often matters can be and are resolved at that stage.

3.30 pm

The amendments we are debating address the major roadblocks, to which I have referred, placed in the path of those who seek access to justice by judicial review of the decisions of the Executive in their many manifestations. One underlying technique adopted by the Bill is to restrict the exercise of judicial discretion in applying the various tests which it sets out. A common theme running through the groups of amendments before us—this group and others—is that of dispensing with the fetters on judicial discretion which the Bill would otherwise apply. Your Lordships will therefore be pleased to learn that it becomes possible for me, in speaking to amendments in this group, to deal with the principal issues and thereby reduce the length of the speeches that I might make when we debate subsequent groups.

Two distinguished Members of your Lordships’ House set out views in the case of Jackson v the Attorney-General, in 2006, which touched on the fundamental issue. The noble and learned Lord, Lord Steyn, said:

“In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the … Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament … cannot abolish”.

We are of course not yet in the position of seeing an attempt to abolish judicial review—erosion, not abolition, is what we are facing—but as the noble and learned Lord, Lord Hope, averred:

“Parliamentary sovereignty is … not uncontrolled. It is no longer right to say that its freedom to legislate admits of no qualification whatever”.

It is better, I suggest, for Parliament itself to acknowledge the need for a system which allows the testing of challenges to the decision-making process.

Various barriers will now have to be surmounted if the Bill is not amended. They are clearly designed to have a chilling effect on applicants and those who might support them or offer to intervene. This group of amendments deals with the test of substantial

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difference to be applied and applies a more stringent test of the likelihood of a different ultimate outcome to be passed. I respectfully endorse and adopt the critique by the noble Lord, Lord Pannick, of Clause 70. The next group of amendments relates to the disclosure by applicants of,

“the source, nature and extent of financial resources available, or likely to be available”,

to them to pursue a case, including, in the case of companies or charities, from their members.

The third group addresses the requirement for interveners—which are very often charities—that obtain leave to provide evidence or make representations in a case to make similar disclosures and prescribes that, save for exceptional circumstances, they will not be able to recover their costs. In practice, the involvement of interveners after leave is given by the court, which is required, is often very helpful. They can of course intervene on either side of the argument. Costs can be prohibitive for an individual or charity, and hitherto the court has been able to make an order capping the liability to pay the other side’s costs. The Bill would remove this protection from the initial stage of seeking leave so that it would apply only if leave is granted, and even then the new rules “about available resources” will apply. Other tests are also laid down, which are likely to deter intervening. The fourth and fifth groups of amendments deal with that issue.

The Lord Chancellor has declared that the judicial review system,

“is not a promotional tool for countless Left-wing campaigners”,

of the kind that a now departed Minister advised to “stick with the knitting”. In fact, campaigning organisations including the Countryside Alliance and the Daily Mail, to name but two, brought all of 50 cases in 13 years—some 3% or 4% of the total number of cases for judicial review.

The proposals on judicial review have been roundly condemned by the Constitution Committee, by the Delegated Powers and Regulatory Reform Committee, by 11 police and crime commissioners in a letter to the Times today and, of course, by the Joint Committee on Human Rights, which among many other observations said of the Lord Chancellor’s remarks:

“Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim”.

Of course, the Joint Committee on Human Rights draws from all sides of Parliament in both Houses.

I hope that Members across the House will support the amendments in this and other groups. In particular, if I may say so, I hope that Liberal Democrat Peers—whose party, to its very great credit, has voiced opposition to their partners’ proclaimed intention to dismantle the Human Rights Act—will do so in the same spirit in which they have opposed those proposals, which, of course, are not yet in any legislative form.

I conclude with the powerful words of the noble and learned Lord, Lord Neuberger, President of the Supreme Court:

“One must be very careful about any proposals whose aim is to cut down the right to judicial review … The courts have no more important function than that of protecting citizens from the

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abuses and excesses of the executive—central government, local government, or other public bodies ... the more power that a government has … the more important it is for the rule of law that such abuses and excesses can be brought before an impartial and experienced judge who can deal with them openly, dispassionately and fairly”.

All of that will be made more difficult if the Bill passes unamended.

Lord Horam (Con): My Lords, the noble Lord, Lord Pannick, said in his introduction to this group of amendments that he could see no good reason why the Government have brought in these changes. However, he will recall that these changes in this Bill, and in the Infrastructure Bill, were first mentioned by the Prime Minister in his speech to the CBI in 2013. That was the genesis of this group. The noble Lord is nodding, so I think I am right.

The reason for that is that the Government are concerned, as the Minister has said on a number of occasions, about the fact that we have fallen behind as a nation on infrastructure. I am not making a party point; it happened under the Labour Government and the coalition Government as well, which means that, frankly, we have too few trains to deal with commuters, too many jams on the roads, too few houses, too few schools in the right place, et cetera. Now is the perfect time to give a kick-start to infrastructure. This is why Christine Lagarde. the chief executive of the International Monetary Fund, is pleading with Governments around the world to give more attention to infrastructure spending in their economies. Larry Summers, the ex-US Treasury head has said that at the moment infrastructure spending on housing, trains, or whatever is virtually a free lunch because interest rates are so low.

This is the situation that we face and which the Government are addressing. Therefore, they brought forward the Infrastructure Bill, which we are considering in another part of the House, and these clauses to this Bill. The reason is that judicial review has and is causing delay to many projects up and down the country. I will not go into the details that were advanced before the Recess. My noble friend has outlined some of the examples and I will not weary the House with them again. The examples of delay are obvious. It is also inhibiting the decision-making in government bodies. James Morris, the Member of Parliament for Halesowen and Rowley Regis, who before becoming a Member of Parliament was the chief executive of Localis, the local authority think tank, made the point that judicial review has now entered the bloodstream of decision-making in local authorities and other government bodies to the extent that when a decision is made they have to know whether it will be judicially reviewed and have to hire a barrister to find out the implications of all that. That is slowing down the decision-making in local authorities when we are urging them simultaneously to get a move on with lots of projects up and down the country. Indeed, I think that the Chancellor of the Exchequer is in the north of England at the moment urging local authorities to do more there.

Judicial review is also undoubtedly abused. My noble and learned friend Lord Mackay of Clashfern made the point in our earlier debates that it is very often used as a blocking device. It is meant to be about

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the process but very often the people who use judicial review are not concerned with the process; they are using it merely as a means to stop a particular development.

Lastly, judicial review is costly. There have been arguments about exactly how much it has increased in quantum over the past few years, and if you take out the immigration cases I can see that there has been an increase, but it is certainly not that much. None the less, as was made plain once again at Question Time today from the opposition Benches, the deficit has proven difficult to control and we are spending far more money than we are raising from taxation. This is an area where public expenditure has increased, and it has not received the cuts and restraint that other areas in this field have.

The professional interests here—the lawyers and so forth—have objected to the Government’s measures. There can be no objection to their objections; I fully understand where they are coming from, and it is very reasonable that the Government’s argument should be tested fully as to why they are using this particular technique to try to improve infrastructure in this country. The professional interests have used a number of arguments. The first is that there is no reason for this measure, but I think we have now demonstrated that there is clearly a need for further help with infrastructure and to clear away some of the roadblocks from it.

It is understandable that they would be concerned about human rights and the rule of law. We are discussing a clause that would make no difference, or would be highly unlikely to do so, to any end result from a judicial review. It is very difficult to argue that there is a significant change or a significant diminution to human rights if the end product of any particular judicial review would make no difference to the reality of the situation.

Even if that were the case, as my noble friend Lord Marks said at an earlier stage, we should trust the judges. If, let us say, the quantum of judicial review were 100 and it came down as a result of this Bill to 80, I would trust the judges to make the appropriate judgments about what was important and what was not—which cases merited discussion and which did not. That is their role; they are clearly very experienced at it and they have a good reputation, and I see no reason why that should not carry on.

The noble Lord, Lord Pannick, said again today that the measures would not work and would actually slow things down. The Minister gave a detailed rebuttal of that at an earlier stage before the recess—he set out various points on 28 July at col. 1462 of Hansard—and I will not go into that again. However, the truth is rather different. I would make a general point here: no Government of any shape or kind can always predict exactly what the consequences of any measures are. All those who have been Ministers know that you take a suite of measures and apply them, and some will work while some will not and some will work better than others. That is the nature of government; you do not always know what will work. Therefore, for the noble Lord to say that these measures will not work is stretching credibility. It is not a sustainable argument to say in advance what will work and what will not.

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I also think, although obviously I am not a lawyer, that it is very unlikely that the judges will make things work in such way that they are inefficient. We know that there is a long trail of meritless cases and that about only 20% of cases get through to the final stage so there is a lot of unmerited work there, and surely that can be conducted more efficiently. It seems to me, looking at it as an economist, not as a lawyer, that there is a pressing need to ensure that this process does not, as many people are saying, inhibit decision-making in the public body. It does not, it seems to me, have an implication of a serious kind for human rights or the rule of law. As the Prime Minister said in his speech to the CBI, when the conditions are so right, it is necessary that we get a move on with infrastructure building in a significant way as soon as possible. It has coalition support. The noble Lord, Lord Beecham, made a plea to the Liberal Democrats; but I point out to him that at the other end of the Palace the Bill has the support of the Liberal Democrats. It is a coalition Bill, not just a Conservative Bill, and the coalition has supported it thoroughly.

We should look at this extremely carefully and consider whether this relatively small adjustment to judicial review—which is valued, and will continue—is not the right thing to do in the present circumstances and for the future of our country. It is in the public, and also the national, interest.

3.45 pm

Lord Woolf (CB): I am grateful to the noble Lord. I had prepared a speech of some length, but I realise, as did the noble Lord, Lord Pannick, that it is important to confine the argument at this stage of the Bill as far as possible. I detain your Lordships only because the Bill is extremely important so far as Part 4 is concerned. In deference to the eloquent speech we have just heard, I want to make a few submissions that are important for the context of why noble and learned Lords—who perhaps do not have interests of their own in raising this matter, which the noble Lord, Lord Horam, hinted at—are very concerned about the Bill.

The reason is that judicial review is the final resort available to the citizen to protect himself against unlawful action. It is a residual remedy and is not available in cases where a specific remedy is given, for example by statute. The only course it is then proper to take is the statutory route that has been laid down by Parliament. Having been a counsel for about five years who frequently was involved in the sort of planning and development matters to which the noble Lord referred, I can say that in most, although not all, of the areas we are concerned with there is specific legislation with specific provisions that explain the circumstances in which proceedings can be challenged before the court. The nature of those circumstances is carefully laid down and is now well known. I do not dispute that that may well need to be looked at again and taken through a critical examination.

However, I emphasise that what the noble Lord, Lord Pannick, was objecting to, and what I object to, is this limitation being placed on judicial review, which is part of the explanation of why in this country we have not needed an entrenched constitution that defines the responsibilities of the Executive and the judiciary

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and why in the United States they attach so much importance to the separation of powers, which is not part of our law.

We are dealing here with the residual remedy of citizens to deal with their fear of unlawful action by the Executive; that is what we are dealing with in most cases of judicial review. That being so, I suggest that the discretion of the judge to examine the position of the Government, the position of other public bodies and the position of the citizen, and then in accordance with the facts of each individual case decide whether it is appropriate to give relief and what relief should be given, is extremely important.

The amendments that bear my name, following that of the noble Lord, Lord Pannick, are designed not to tackle what is proposed root and branch, but to tackle those parts which say that a judge “must” do something as opposed to “may”. We do so not because we think that judges will be offended if they are told that they “must” do something. We do so because it is critical, if judges are going to get the right answer and do their best to get a just result, that they have the discretion to tailor their response to the facts of a particular case. However carefully we legislate, it is dangerous to go down the line of telling the judges what they have got to do. Everybody accepts that the independence of our judiciary is important. I emphasise the importance of that independence not because it is some right of the judiciary; it is important because the citizens know that a matter in issue, particularly in these important areas, will be considered by a judge who is independent. If we protest that we do not want the judiciary’s discretion cut away, we do so for that reason.

I will say no more because the other matters will, I know, be canvassed by others. However, I hope that I have made it clear why I think that this is a worrying piece of legislation, why I think that Part 4 needs to be carefully considered, and why I share the regret of the noble Lord, Lord Pannick, that although an array of legal talent spoke at Second Reading and explained their worries, it has not been felt right to consult them and try to find better ways of doing this, as has happened in many other parts of the Bill.

Judicial review deals with the public’s rights. In those circumstances, I suggest that if we are not going to fall into the trap indentified by Lord Hailsham in his Dimbleby lecture of 1976 of having an elective dictatorship in this country, we have to safeguard judicial review.

Lord Marks of Henley-on-Thames (LD): I cannot support Part 4 of the Bill. I hope that the House will forgive me if I, too, make some general observations on the whole of Part 4, not limiting myself to Clause 70, to avoid taking up too much time later. As the noble Lord, Lord Pannick, says, there is much work to be done.

At Second Reading, the Minister assured the House that this package of proposals amounted to no more than “proportionate and common-sense reform” of judicial review. My noble friend Lord Horam called it a “small adjustment”. I regret that I see Part 4 as a serious infringement of the right of the citizen to challenge unlawful action by the Executive before the

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courts and thus, frankly, as an assault on the rule of law. This was the point made so eloquently and forcefully by the noble and learned Lord, Lord Woolf.

This part of the Bill aims to choke off challenges to unlawful action by the Executive. I fear that, if enacted, it will achieve precisely that. The degree to which it is proposed that judicial discretion be curtailed by these proposals is consonant only with a determination that judges should be limited so far as is possible in the exercise of their power to overrule unlawful government action. As the noble Lord, Lord Pannick, pointed out, the effect of Clause 70 would be to stifle any challenge right at the outset of permission stage, where the Executive may have acted unlawfully but where it appears highly likely that that unlawful action has not made any difference to the outcome for the applicant. Whatever superficial attraction there is for such a rule as between the parties to a particular application, the net effect on the public interest, in what are public law cases, would be that unlawful action by the Executive would go unchecked and unreversed.

Clauses 71 and 72 taken together would provide a code for ensuring that any person of means who is minded to support a challenge to an executive decision is to be obliged to provide information, again at the permission stage, about all his current resources and all his likely resources—full financial disclosure, in other words. The court is then to be told that it must consider making an order for costs against any such person based on that information. Many applications for judicial review are funded by public-spirited supporters seeking to have unlawful action by the Executive corrected. Frequently, such supporters have no financial stake in the litigation at all. No one can pretend that the provisions of these two clauses are not calculated to deter public-spirited individuals from lending financial support to judicial review applications.

Clause 73 on interveners provides for a draconian scheme of punishing those who intervene in costs. The general rule—subject to departure in only exceptional circumstances—would be that an intervener would be unable to recover costs from the losing party, win or lose, no matter how meritorious the intervention, how much the intervention is found by the judge to have assisted the court, and how far the intervener brought their broad experience in the field and new and telling arguments to the hearing of the application. Furthermore, and perhaps even more iniquitously, the court would have to order the intervener to pay all the costs of the other parties in the proceedings as occasioned by the intervention. Again, the court would be able to depart from this rule only in exceptional circumstances.

No one can fail to see that that code will deter interventions. It will make it very difficult for those many well known and thoroughly respected charities, and other campaigning organisations with relevant experience and a deep knowledge of their fields, to mount legitimate challenges to unlawful executive action. It will make it very difficult for those organisations to raise money in those circumstances.

At Second Reading, the Minister said in relation to interveners that the Government were,

“persuaded that there may be a case for some modification of the provisions”.—[

Official Report

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

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and that he looked forward to “considering possible amendments”. As has been said, a number of amendments have been proposed by noble Lords, but none has been accepted for consideration by my noble friend and his colleagues in his department. The proposed rules on cost-capping in Clauses 74 and 75 again would severely restrict the ability of the courts to protect meritorious applicants in public interest cases from adverse orders for costs. Again, the effect would be to chill and to stifle such applications by the financial threat posed to those of limited means by the risk of an adverse costs order. The fact that a cost-capping order would be available only after permission was granted would only add to the overall effect.

I turn very briefly to my amendments to Clause 70, which are in my name and those of my noble friends Lord Carlile of Berriew and Lord Macdonald of River Glaven. All the amendments in my name should have my noble friend Lord Macdonald’s name to them as well, but for some reason his is not in the Marshalled List. He apologises that he is unable to be here at this stage but he will be here later. I should make clear at the outset that I support the amendments in the names of the noble Lords, Lord Pannick and Lord Beecham, the noble and learned Lord, Lord Woolf, and my noble friend Lord Carlile, which import a general judicial discretion in this area. However, our amendments are designed to ensure that, even where unlawful executive action may have made no difference to the particular applicant before the court or tribunal, the court or tribunal will still be entitled to consider the lawfulness or otherwise of the executive action concerned, to rule on it and to hold the Executive to account accordingly if the public interest so requires it. That principle should apply at the permission stage as well as at the stage of final hearing. We should not forget that these are public law applications designed to protect the citizen and to hold the Government to account. We should be astute, in this House in particular, to ensure that where government acts unlawfully the courts are not debarred or otherwise prevented from saying so.

4 pm

Baroness Campbell of Surbiton (CB): My Lords, I, too, wish to add my support to these amendments for the reasons so clearly explained by my noble friend Lord Pannick and others. As noble Lords are aware, I have contributed to the debate on this part of the Bill throughout its passage through the House. Let me explain why. I have supported the amendments because I want to show how these government reforms will affect disadvantaged citizens, especially the 10 million disabled people in this country who seek legal justice. Sometimes I think that we forget about the disadvantaged, the poor and the disabled who have no means or recourse to abuse. They simply want access to justice.

I know—I really know—what disabled people experience on a daily basis. I do not need to remind the House that when public authorities get it wrong, my God, they get it wrong and it has devastating effects on the individual. It hits disabled people particularly hard because they are the most in need of taking public authorities to court to get justice for their services—the services that they rely on to survive and live. They are absolutely, disproportionately dependent

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on public services and judicial review. As I said before, I have never known judicial review to be abused by disabled people or the charities that support them.

Claude 70 will effectively allow public authorities to ignore due process. That cuts across the public sector equality duty, which is so crucial in holding public authorities to account. Coupled with the cuts to legal aid, Clause 70 will effectively deny access to justice to those who most need it—not the big companies or multinationals, but just the people who need it, those at the margins of society. That is not the kind of justice we want in our democracy for vulnerable citizens. This clause has absolutely no place on the statute book in these terms.

Lord Carlile of Berriew (LD): My Lords, my name is added to a number of these amendments, and I will not repeat everything that has already been said, most especially by the noble Lord, Lord Pannick, the noble and learned Lord, Lord Woolf, and my noble friend Lord Marks. However, I cannot let this debate pass without making three comments about the unusual speech made by my noble friend Lord Horam.

First, his speech was inaccurate. He blamed judicial review for delays in infrastructure development and for making infrastructure development more expensive. Had my noble friend taken the trouble to read the successful judicial reviews of infrastructure development, he would have found that in 95% of the cases—and I may be underestimating that—the judicial review was granted because of the incompetence and sloppiness of officialdom ranging from government departments through to local authorities and other statutory organisations. The answer to that is for those public authorities to prepare their cases properly, to make their planning applications in due form and for Ministers, in appropriate cases, to call in major planning issues so that they can be decided more quickly.

Secondly, my noble friend’s speech was unusually statist. In his career he has, in a very distinguished way, exercised his principles repeatedly, having been a member of three political parties. As I understand it, he left his first party—the old Labour Party—because he regarded it as too statist, yet nothing could sound more statist than what he said just a few minutes ago. I am personally in favour of HS2, fracking and the Severn barrage.

Lord Thomas of Gresford (LD): Hear, hear.

Lord Carlile of Berriew: My thanks to the noble Lord, Lord Thomas. However, I would be the last person to deny those who are opposed to those sometimes controversial schemes the opportunity to question them, if appropriate, by way of judicial review. Taking the contrary view is statism of the most extraordinary kind.

Thirdly, my noble friend’s speech was unjust because it seemed to remove the notion that there should be issues of principle about which people can take dramatic action. He has done it himself twice by changing parties as he moved from old Labour towards the party which he now represents with distinction in your Lordships’ House. However, that is the sort of exercise of principle, on more than one occasion, which the noble Lord, Lord Pannick, was talking about in moving

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the amendment. These are not pragmatic actions over small sums of damages; they are actions over great issues of principle. Even if some claimants would not actually win their personal actions for judicial review, we know, from the cases which we have all read and in which some in your Lordships’ House have appeared, that enormously important issues of principle for the future arise from them.

I will stray into future amendments, as others have done. Some of those points of principle have been made extremely successfully by interveners—NGOs that have chosen to put in submissions. Some have done so so effectively that their written submissions have changed the course of a case. Surely we should not inhibit justice by these rather mean provisions, which, in my view, my party—the Liberal Democrats—should never have given a single piece of powder or a single piece of shot to support.

Lord Irvine of Lairg (Lab): My Lords, I will make a few remarks in support of the noble Lord, Lord Pannick, my noble friend Lord Beecham and the noble and learned Lord, Lord Woolf. In their consultation paper, which preceded the proposed changes, the Government acknowledged:

“Judicial review is a critical check on the power of the State, providing an effective mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are lawful. The Government will ensure that judicial review continues to retain its crucial role.”

So far, so good. Unhappily, however, to my mind the Bill fails to deliver on that pledge. I shall confine my remarks to Clause 70 but, as other noble Lords have demonstrated, it is only one example of many.

The judiciary is a vital component in our separation of the powers. Judicial review is indispensible in a democracy proud to be governed by the rule of law. It ensures that public bodies act according to law. They cannot be above the law. Ministers, who are politicians, often will be frustrated if their decisions are challenged or quashed, but that is an intrinsic aspect of government subject to the rule of law, as is the need for Ministers to be aware of their duty to comply with the law. A Government who are confident that their decisions cannot be readily challenged risk becoming a Government who no longer have to respect the rule of law. That is a risk that no Secretary of State for Justice, who also bears the title of Lord Chancellor and is under a duty to uphold the rule of law, should be prepared to countenance.

Clause 70 would enable the Government to escape the consequences of unlawful action if they could persuade the courts that it was “highly likely” that they would have taken the same action had they acted lawfully. The current legal position is that where a public body has acted unlawfully the court may in the exercise of its discretion refuse to grant relief if it is satisfied that the decision would inevitably have been the same had the public body acted lawfully. That discretion is very rarely exercised, for good reason.

Procedural failures are more than “mere technicalities”. It is important that decisions are made properly by those entrusted with them by Parliament or Ministers. Procedural protections are built into Acts of Parliament or statutory instruments because of the importance of

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participation in decision-making by those affected by decisions or by the public at large. If a decision is unlawful because a defendant has acted unfairly, failed to observe a consultation obligation imposed by Parliament or failed to follow a procedure prescribed by Parliament, the rule of law requires that a claimant should have a remedy. To hold otherwise runs the risk of unlawful administrative action going unremedied. To my mind, the current law gets it right. The only exception should be those exceptional cases where a defendant can persuade the court that the same decision would have been inevitable.

Clause 70 is likely to encourage decision-makers to ignore participation rights. Yet the failure to comply with procedural obligations results in worse decisions as the decision-maker will not have taken into account the full range of relevant material before making the decision. It also undermines public confidence in the decision-making process. Those who have had the right to be heard before a decision is made will feel a justified sense of grievance about the fairness and quality of these decisions.

Moreover, and perhaps more importantly, lowering the threshold to “highly likely” will require the court to second-guess government decisions. The court will be required to substitute for the decision that has actually been made the decision it thinks the Secretary of State would make if the evidence that the court has looked at had been looked at by him. That is entirely inappropriate because the role of the judiciary in judicial review is to examine the lawfulness of public decision-making, not to substitute its own decision for that of the original decision-maker.

Finally, law reports are littered with cut-and-dried cases that turned out to be nothing of the sort. The best known expression of this came from that distinguished judge, Mr Justice Megarry, in John v Rees in 1970. He said that,

“experience shows that that which is confidently expected is by no means always that which happens … the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were”,

completely “answered”.

The effect of Clause 70 is best summed up in the words of the senior judiciary of England and Wales in response to the Government’s consultation:

“A lower threshold than inevitability for the application of the ‘no difference’ principle envisages judges refusing relief where there has been a proved error of law and the decision under challenge might have been different absent that error”.

I agree. The threshold defined in Clause 70 would immunise unlawful decisions from challenge before the courts, and I say that it should be rejected.

4.15 pm

Lord Tebbit (Con): My Lords, as the noble and learned Lord, Lord Irvine, was speaking, I was trying to cast my mind back to a certain event. I think the noble and learned Lord said that politicians should take action only after due and proper thought, and I seem to recollect an occasion when this House was impaired in its meeting because the Prime Minister had accidentally kicked the Lord Chancellor off the Woolsack. I wonder whether that was what the noble and learned Lord had in mind when he was speaking just now; certainly it is what came back to my mind.

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I find myself concerned about a number of matters before us today. The noble Lord, Lord Pannick, talked about the “legality” of Ministers’ words and about “unlawful conduct” of Ministers. The noble and learned Lord, Lord Woolf, spoke of “unlawful actions”. That is all fine. I think that there should be the capability for judicial review in such circumstances. But those circumstances conform to my understanding of the only three grounds on which judicial review used to be granted: that the act or decision of the Minister or official concerned was contrary to law; that the act or decision was ultra vires; or that no reasonable man could possibly have reached such a decision.

I would be much happier if I could be assured—not only by my noble friend who will answer the debate, but by some of the distinguished lawyers who have spoken—that that remains the case. I have had the impression recently, when reading about some cases in which judicial review has been granted, that a judge has decided that a rather better decision might have been the one that he proposes to make now. I am glad that the noble and learned Lord, Lord Woolf, shakes his head at that, but I think that he understands a little of my anxiety, and that of a number of others. It seems to me that it would not be right for judges to substitute their judgment for that of officials or Ministers who lawfully took a decision.

Even worse, the noble Lord, Lord Beecham, quoted a judge who said that he thought that Parliament might not have the right to change the law that it had made. That seems a very peculiar doctrine. In that case, who does have the right to change such a law? Would it be the judges, or would it be, I do not know, a mob in the street, perhaps? Surely it is only Parliament, which has made a law, that has the right to change it.

The noble and learned Lord, Lord Woolf, spoke of the dangers of elected dictatorship. Of course those dangers are there. I do not like elected dictatorships, but in this country there is a very good mechanism for getting rid to them—at the next election. I would rather do it that way than have some judicial process for getting rid of them. I hope we shall hear no more talk about that, because I do not like unelected dictatorships either, even if they sit in law courts.

I have some very clear worries about the manner in which judicial review has developed in recent years. I hope that we will be able to come to a conclusion here, all of us, that we should go very firmly back to those three criteria alone and no others—no talk about judges perhaps deciding that there is an elected dictatorship and something should be done about it; otherwise, their places on their benches might be at risk.

Lord Lester of Herne Hill (LD): My Lords, the House will be glad to know that there is a limiting factor on how long I can speak for, which is the state of my bronchial tubes; they are so excited by the subject that I am danger of choking altogether.

I am very glad to be able to reassure the noble Lord, Lord Tebbit, and I am particularly glad to follow the noble and learned Lord, Lord Irvine of Lairg. I remember when he had ceased to be Lord Chancellor and a Labour Government were tabling an obnoxious provision, I think to take away the rights of asylum seekers in the courts, and the noble and learned Lord simply put his

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name down to speak—that was all he had to do and the Labour Government saw the error of their ways and did the right thing.

I wish I could say the same of the present Government, whom I support within the coalition. They have had two warnings from two different committees, on both of which I serve: the Joint Committee on Human Rights, which has given two reports; and the Constitution Committee, chaired by the noble Lord, Lord Lang, five of whose members are members of the Conservative Party and, not as far as I know, dangerous radicals. One might have thought that the warning given by the Constitution Committee that, the judges having expressed their concerns, the Government should heed the warning, might have cut some ice within the Ministry of Justice and with Mr Grayling. I am very sorry that that has not been the case.

Part 4 places obstacles in the way of people seeking to challenge the legality of the actions of the Government and other public authorities. It interferes with the discretionary powers of the courts by placing handicaps in the way of public interest groups and their lawyers, and the ordinary woman and man in the street, in seeking to ensure that the Government and other public authorities act lawfully, fairly and rationally in accordance with logic and accepted moral standards of good government.

Judicial review is the process by which the courts enforce compliance by public authorities with the law. It is an appropriate and necessary judicial function because, as Lord Bingham pointed out in his great little book, The Rule of Law, the courts act as,

“auditors of legality: no more, but no less”.

Tom Bingham summed up the basic principle in the following way—and this I say to the noble Lord, Lord Tebbit, because even if he regards me as an unreliable Liberal Democrat, perhaps he will take it from Lord Bingham, one of our greatest judges, in his book—when he said:

“Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably”.

Those are the principles of administrative law in this country—no more and no less—and they remain as they were when Lord Bingham wrote and as they were 30 years ago.

Lord Tebbit: Who does my noble friend think should make the judgment as to whether the powers that were legally used were fairly used? Different people have different judgments about what is fair. That of the Liberal Democrats is very different from that of the Conservatives—indeed, it is sometimes different from that of the Labour Party.

Lord Lester of Herne Hill: I ask the same question of the noble Lord, Lord Tebbit. If he thinks that Ministers, not judges, should make the judgment, then we are in wholly different places. The answer to the question of the noble Lord is that in the end it is for Parliament to make the laws, it is for the Executive to administer the laws, but it is ultimately for the courts to decide and to declare what the law is when it comes to public law, as for any other kind of law.

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It is important to emphasise, for the benefit of the noble Lord, Lord Horam, in particular, that there is no automatic right to judicial review. It has to be applied for. It is granted only if the administrative court is satisfied that the application raises a properly arguable case by someone with a sufficient interest—not a mere busybody—who has exhausted any effective alternative remedy, such as a planning appeal.

The application has to be made without inordinate delay. The concerns of the noble Lord, Lord Horam, about delay are, therefore, met by the strict requirements of the administrative court. If the application succeeds, the court has a broad discretion that the remedy is necessary and proportionate. It will not permit the procedure to be abused. It will punish any abuse of procedure with an appropriate cost order.

If, as the Justice Secretary contends,

“‘left-wing’ campaigners have exploited the process of judicial review to frustrate government initiatives”,

—dear me!—the courts have ample powers to ensure that judicial review is not abused, including making cost orders against those who abuse the procedure.

It is an ancient principle, probably going to back to Magna Carta, that under the common law, which is at the heart of our system, no one shall be judge in his own cause. In seeking to interfere with the powers of the courts, and to place obstacles and handicaps in the way of application for judicial review, the Justice Secretary and the other Members of the Government—Liberal Democrat as well as Conservative—are judges in their own cause. They have a political self-interest in what is in Part 4.

But this House is in a different position. We have a vital constitutional role in protecting the rule of law and the accountability in law of Ministers and of government departments and of all public authorities. The House has the opportunity this afternoon to fulfil that role by placing the wider public interest against party-political interest. That is why, though I do not enjoy being a rebel, if there are Divisions on any of these amendments in the name of the very distinguished supporters of this one, I shall cross the floor and shall vote with them.

Lord Deben (Con): My Lords, many Members of your Lordships’ House will understand that I very often come to debates on legal matters in order to make sure that legally trained people do not have it all their own way. I have always felt it a danger of this House that legal issues are debated by judges, who, it is often suggested, may have ulterior motives. I speak today because I think the judges are entirely right, and the concern that I have is a concern for my own historic profession of politician.

I well remember the occasion on which I was able to use the fact of judicial review to get my civil servants to understand why I would not accept a particular appeal on a planning matter. It was because it was quite clear to me that the very powerful interests, whose infrastructure aim I entirely approved, had failed in their duty to look for alternatives to the proposal that they were putting forward. They had not, therefore, fulfilled the law. Now, sometimes it is easy for a Minister to make such a decision, but sometimes it is inconvenient. It is

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important that embarrassment and inconvenience should not be allowed to go so far that it means that Ministers make decisions which are unlawful. Somebody has to decide when a decision is lawful and when it is not. That is what judicial review is about; it is a very simple concept.

4.30 pm

I am sad today to disagree with my noble friend Lord Horam, with whom I do not think I have ever disagreed on any subject, even at a time when he was not a member of the Conservative Party, but I think that my noble friend has misdirected himself—if I may use a phrase which I understand is widely understood by legal persons. My noble friend referred to the importance of a whole range of infrastructure projects. I happen to agree with him that they are changes that we need, but I still think that it is unacceptable if we have a system whereby, if the Government have behaved illegally, they cannot be brought to account in the courts.

I look at this particular change and I say to myself, “Well, first of all, I thought we had an argument with King Charles the Martyr”—your Lordships will see which side of the Civil War I would have been on—“about who was above the law”. Clearly, no one is above the law, but someone has to decide when they have tried to be above the law, and we cannot avoid that. We ask judges to make that decision, and it is a proper decision for judges to make. My problem with the changes which are proposed in Clause 70 is that we are asking the judges to make an improper decision. We are saying, “Do not make the judgment as to whether this is lawful or unlawful”. We are saying, “Make the judgment that, if the Minister had acted in this way, the outcome would be the same whether it were lawful or unlawful”. I do not think that that is a judicial decision at all; that seems to me a matter of opinion. It is very dangerous, as my noble friend Lord Tebbit would agree, to give judges the role of making a decision as vague as that. They are after all supposed to be judging not what is but what might have been. My own experience is that judging what might have been is a very dangerous activity. Most of us would be paralysed in our lives if we thought about what might have been if we had done something different.

It is not therefore sensible to ask judges to make a decision other than the proper judicial decision about whether the law has been carried out. “Well”, say the Government, “we are not stopping that. All we are saying is that judges should not be in that position unless the issue is important enough for it to merit that position”. This is where I really disagree with the Government. It is perfectly possible for a person to have been misjudged, for an issue to have been decided not in accordance with the law and for the outcome to be the same as had the law been carried through, but for it still to be an important part of freedom to ensure that the law is upheld. That is the issue of considerable importance.

Lord Spicer (Con): I am most grateful to my noble friend for giving way. He is making the distinction, in a brilliant speech, between judges making the law and interpreting the law, but is that not precisely what the European Court does: it makes the law, which is then interpreted back?

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Lord Deben: Happily, we are not discussing the European courts at the moment. In case anyone did not know, I am entirely in favour of our membership of the European Union. I think we should keep the defence of people’s freedom by the Bill of Rights that we have in the European Union, invented after Winston Churchill. I could go on for a long time, but I will not be led there by my noble friend. The truth is that we are talking about British law, British judges, British courts and the British defence of freedom that is judicial review. I hope that your Lordships’ House will remember the words of the noble and learned Lord, Lord Woolf, when he remarked that this is part of the structure that saves us from having to have a written constitution. This is the mechanism that we have invented. As a mechanism, every now and again it is annoying to Ministers. That should be a judgment of its correctness. That is what it is there for: to make Ministers annoyed enough to make sure that they do the right thing. In that sense, I have in the past—as is bound to be true after 16 years as a Minister—been annoyed by the facts of judicial review, but it made me a better and fairer Minister because I had to think of the law and not of my opinion at a particular point.

I want to say just one other thing. My noble friend Lord Horam said we should trust the judges. That is precisely what those of us who support the amendments are asking. We are saying that we should not say the judge shall not; we should say that the judge has the right to decide. We think there ought to be discretion but the Government are saying that there should not. I find that unacceptable. I do not want the division of powers that one sees in the United States. I want the kind of elegant association of powers that we in this country have worked out over the years. However, an elegant association of powers is held in place by very delicate mechanisms, which we fiddle with at our peril. This is one of those very delicate mechanisms that we will not fiddle with without very considerable effects. Just in case anybody heard the comment about left-wing people misusing this, I remind the House of what happens in the United States where it is almost universally right-wing people who make life almost impossible for elected Governments by using their system of separation of powers. How extremely clever we have been over the centuries to produce something that works so well, is so delicate and interrelates so well. Having done that over centuries, let us be a bit careful about being too clever with it now.

Baroness Williams of Crosby (LD): My Lords, we have heard a brilliant speech. I associate myself very much with what the noble Lord, Lord Deben, said about the absolute necessity for Ministers to be obliged to bear in mind all the time how far their policies and decisions are in line with the law. Like the noble Lord, Lord Deben, I was also a Minister for a long time. During that period, on more than one occasion, I was confronted in a very direct way with challenges to the decisions I had made, particularly about issues around comprehensive schools. What I learnt from that experience was, first, to be very careful and thoughtful about any proposals that my department made in my name. Secondly, I learnt to have great respect for the often painful occurrence of reviewing my decisions in great detail, no doubt to the displeasure of a number of local authorities who did not share my view.

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I want to make two other quick points. First, our own great Conservative Party has always been deeply suspicious of statism, unlike many right-wing parties in Europe and elsewhere, and has always had a commitment to the idea that the Government might be wrong and that they should be subject to the rule of law like all other citizens and parties in society. I find it, therefore, all the more puzzling that a party with that record and reputation can put forward this extraordinary Bill. I am here, not having taken part in the earlier stages—I had no intention of taking part—only because, when I read in detail both the Bill and the amendments, I became very troubled indeed.

The second crucial point is that the Conservative Party has always been centrally loyal to the concept of its patriotism to the British tradition and British values. As my noble friend Lord Marks, the noble Lord, Lord Deben, and the noble and learned Lord, Lord Woolf, have all said, at the very heart of the best of British values is the concept of accepting the rule of law. It is worth saying that almost no other country in the world—certainly no court, such as the European Court of Human Rights, which is nothing to do with the European Union, as may not be realised; it is to do with the Council of Europe—allows an individual, someone with no standing, no resources and no money to challenge the might of the state itself.

I am very troubled by some of the clauses, which will make it difficult for that same humble individual citizen to stand up to the state because he or she lacks the resources to do so or the ability to pay for brilliant lawyers. That is exactly the opposite of what we thought—what I have always deeply believed—that judicial review was all about. Whatever the process may be called, the truth of the matter is that the public broadly, to put it bluntly, trust the judiciary rather more than Governments, who come and go. Our judiciary has undoubtedly formed itself a substantial reputation.

The noble Lord, Lord Deben, rightly referred to the judicial system in the United States. Many Members of this House will be aware that over the past five or six years, there has been an absolutely steady uniformity of verdicts—five to four, five to four, five to four—on one issue after another, because, like it or not, the judiciary in the United States is politically chosen. That is why you cannot treat it in the fullest sense as independent; it is heavily dependent on who was President at the time that a particular judge was appointed.

Let us take pride in what we have been and what we are: one of the few countries in the world where an individual is treated as having the full right to challenge the Government and other forms of the Executive. Let us recognise that that has been treated in much of the rest of the world—not least on the continent of Europe —as one of the outstanding claims for the United Kingdom to be treated as an exceptional country, one that, ever since the days of Winston Churchill and the Council of Europe, has been persistently followed. It has had a huge influence on, for example, eastern and central Europe who follow us in that concept of the rule of law.

I conclude by saying that it would be an act of absolute tragedy if we were to allow a law to go through that begins to put in doubt that reputation.

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4.45 pm

Lord Cormack (Con): My Lords, not for the first time, the noble Baroness, Lady Williams, has delivered a brilliant speech—a wonderful defence of Conservative values. I congratulate her on that. She made an extremely telling point when she talked about the politicisation of the judiciary in the United States.

I am very proud to be an honorary citizen of Texas, but when I was in Texas in 1984, at the time of the presidential election, I was invited to go to a $1,500-a-plate barbecue in aid of the man who was running for chief justice of Texas. I said to my congressman colleague, “We don’t do it like that in the UK, and I am bound to say that I am extremely glad of that”. I am very glad that that is still the case.

We have heard some outstanding speeches this afternoon. My noble friend Lord Deben was at his very best. We heard a very powerful speech from the noble and learned Lord, Lord Woolf, and a short, telling, moving speech from the noble Baroness, Lady Campbell of Surbiton, who was, in effect, speaking for the least of the little ones—to use a biblical phrase.

It is a pity that we are here again, because we have been around this course before in debates on the Bill. I had very much hoped that my noble friend who will be responding to the debate, for whom I have a genuinely high regard, would have been able to persuade the Lord Chancellor and others to have taken note of the telling points made in your Lordships’ House. I cannot help but wonder if the fact that we no longer have a distinguished lawyer as Lord Chancellor has something to do with it.

In his speech, the noble and learned Lord, Lord Woolf, talked about the significant and powerful difference between the words “must” and “may”. It is a disservice to our democracy to fetter the judiciary. Of course, they can sometimes be exceptionally tiresome. There is not a single Member of your Lordships’ House—other than, perhaps, those who are learned in the law—who has not been exasperated and annoyed from time to time by what judges have said, but the rule of law is what guarantees our liberties in this country. I am so glad that the noble Lord, Lord Lester, quoted from that brilliant book by Tom Bingham. We must not allow any Government to fetter the freedom of the judiciary.

I have mentioned Magna Carta before and I make no apology for mentioning it again. It was alluded to by the noble Lord, Lord Lester. Next year we shall commemorate Magna Carta and celebrate its 800th anniversary. Already, two of the barons who look down on us in this place have gone: one is gracing an exhibition of Victorian sculpture in the United States and the other is to guard the entrance to the British Library’s great exhibition devoted to Magna Carta next year. Much of Magna Carta is not relevant today, but its centrality is:

“To no one will we sell, to no one deny … justice”.

We are moving in that direction if we do not amend the Bill in this way. That is not a good way to commemorate and celebrate.

The Prime Minister has made a number of extremely powerful comments about Magna Carta, after the first unfortunate one on American television. He has said how crucial it is that we recognise the values encapsulated in that most seminal document in our constitutional

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history. For all the pettifogging, interference and annoyance that might be caused, one of the things that we have to defend is the right of people like the noble Baroness to take on the big powers and the establishment.

How much I agreed with my noble friend Lord Carlile of Berriew when he was talking about those infrastructure projects. I do not agree with him on the infrastructure projects—on some I do, on some I do not—but that is another matter entirely. I agree that there must be the opportunity to challenge. No Government should have the power to prevent such a challenge simply because it is inconvenient.

I hope that, in winding up, the Minister will be able to indicate that he has listened to the almost unanimous voice in this debate. I hope that, even at this late stage, he will do something—perhaps introducing an amendment at Third Reading—to recognise that the case made by the noble Lord, Lord Pannick, in his opening speech and the case made so very powerfully with such quiet effectiveness by the noble and learned Lord, Lord Woolf, has been listened to in government circles and will be heeded.

Lord Phillips of Worth Matravers (CB): My Lords, if those in this Chamber who were opposed to these amendments at the start of this debate have not been converted by what they have heard, nothing that I can add is going to convert them. I simply say to the noble Lord, Lord Tebbit, that Parliament did not create judicial review; the judges did. It was, I hasten to say, before I became a judge and was one of the best things that our common-law judges have ever done. These amendments are designed to ensure that Parliament does not damage that which the judges created, and they deserve the support of this House.

Baroness Kennedy of The Shaws (Lab): My Lords, I know that there is always a sigh in this House when a debate is dominated by lawyers. However, I remind the House that sometimes it is lawyers who know the pain that citizens in our country experience, because we represent them, and that this is about the actual lives on which judicial review has an impact. It is always about the person whose business is to be closed down from trading, based on a department’s or a local authority’s decision that they want to challenge, or the person whose mother is in a care home and suddenly finds that it is being moved or closed down, with no consultation as to the impact on her and her family. It may be about the effect on a disabled child of a decision about their schooling. Those things are about real people’s lives and that is why this is not just a constitutional debate of high flown words or complicated legality—it is about the real impact on the lives of ordinary people.

When your Lordships come to vote in our Lobbies, as I am sure you will be asked to do, I say to those of you who are not lawyers that this is really about people’s lives and about the law coming into play to protect citizens. That is why lawyers and organisations such as the Bar Council, the Law Society and Justice—cross-party and no-party organisations—know why the rule of law matters in our nation and our democracy. This is not, I say to the Minister’s noble friend Lord Tebbit, about judges somehow usurping the power of Parliament.

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This is about justice, fairness and the things that we hold dear, so I say to my colleagues in this House who are not lawyers that this is not a festival of lawyering. It is about ordinary people.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, we now turn to Part 4 of the Bill, which has proved to be one of the more contentious areas at Second Reading, in Committee and today. The debate has ranged far and wide and it has been magnificent. We have discussed the constitution of the United States, the merits of the European Union, the Council of Europe, King Charles I, fracking, the Severn barrage and HS2, to name a few topics. I am sure that noble Lords will understand if I do not deal with all of them.

Similarly, there have been speeches of an omnibus nature, particularly by the noble Lord, Lord Beecham, and my noble friend Lord Marks, in the sense that they have covered matters beyond Clause 70. I will deal with those arguments when we come to the relevant groups. We are focusing on Clause 70 at this juncture. The Government have listened with great care to the arguments raised by noble and learned Lords and noble Lords during those debates. I assure my noble friend Lord Cormack that I have listened carefully again this afternoon to the speeches made by a large number of your Lordships. However, we do not resile from our central contentions, which I trust the House will allow me to set out briefly.

First, it is our contention that judicial review, when used properly, is an essential component of the rule of law. It allows individuals and businesses to invite the court to test the lawfulness of public bodies’ actions. Secondly, judicial review as it presently stands is not always perfect. On several occasions, the Government have set out some of the examples of delay and cost which can be caused, such as the challenge to the exhumation licence concerning the mortal remains of King Richard III which the noble Lord, Lord Beecham, described as “ludicrous”, despite his own view that York is the more appropriate resting place.

Thirdly, while we have taken some steps, working with the judiciary where appropriate, to rebalance the current approach, such as through the creation of the planning court, some further reform is needed. Noble Lords may be aware that the use of judicial review has increased more than threefold in recent years from around 4,200 in 2000 to around 15,600 in 2013.

The noble and learned Lord, Lord Woolf, was kind enough during our Committee debates to offer me a copy of De Smith’s Judicial Review, of which he is a distinguished editor. I have to say that he honoured his pledge most generously. I have been in receipt of De Smith and I have done my best to reacquaint myself with its contents. The preface to the seventh and most recent edition reads as follows:

“English administrative law is now one the most celebrated products of our common law and doubtless the fastest developing over the past half century”.

We accept that many judicial reviews will be well founded and brought in good faith, and that much of the growth has been driven by the number of immigration and asylum cases, but it remains a simple fact that a well timed judicial review can delay the implementation of crucial policies or projects for months or even

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years. Even when decisions are perfectly in line with due process, months can be spent preparing for and defending claims when that time would be better spent taking forward the reforms that the country needs.

The debates have been, perhaps predictably, dominated by those with long experience of the law and, of course, on the government Benches we welcome the expertise which has been brought to bear, even if we do not always welcome the contents of all the speeches. However, there is another side to judicial review—one which pertains to what happens, or does not happen, outside the courtroom as judicial reviews proceed. As they proceed, arguments are made and countered; witness statements are prepared and probed; and fine points of law are weighed and determined. Crucial projects with direct implications for jobs are delayed, perhaps lost.

For example, a judicial review was initiated by a competitor to the proposed development of a supermarket in Skelton, North Yorkshire. That challenge was described by the judge at the earliest possible opportunity as “a hopeless case”. Yet work was delayed for six months. Irrespective of the rights and wrongs of the case itself, is it right that a hopeless judicial review can be used to such effect? The risk of this happening was recognised by that great judge Lord Diplock who, when emphasising the importance of the permission stage in judicial review said:

“The requirement may also prevent administrative action being paralysed by a pending, but possibly spurious, legal challenge”.

I quote from Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses 1982 appeal case 617 at page 643.

It is important that we do not ignore the fact that such cases place a considerable burden on the public purse in terms of the time of judges, lawyers, Ministers and officials. Overall figures are not recorded, and are probably not recordable, but by way of illustration, I can report that the total legal costs of the Richard III case to the Ministry of Justice alone have been put at more than £90,000, none of which is recoverable. Consequently, we make no apology for having taken some sensible steps already, and none for making a few more small but important changes.

Outside your Lordships’ House the debate about these reforms has been rather long on hyperbole. Reference has been made during the debate today, and indeed in Committee, to left-wing causes. Of course, I entirely accept that it is irrelevant whether a cause is left-wing, right-wing or apolitical. What matters is whether the challenge is justified and whether it has merit. However, I have seen it suggested that the Government wish to do away with judicial review altogether and even that these reforms will lead to imprisonment without trial. As I will explain, these fears are entirely ill founded. The Government believe that the roles of Parliament and the courts should exist within a relationship of mutual respect and co-operation. In that context, I should emphasise what the provisions do not do: they do not seek to undermine or fetter judicial discretion; they do not seek to challenge the basis on which judges approach questions of judicial review; and we have not altered legal standing, much as that was open to criticism. That was a response to the consultation paper.

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5 pm

The clauses in Part 4, rather, represent a sensible and considered package that will improve the process of judicial review for those with a proper case, put well and founded on flaws that would have made a difference to the applicant. These are common-sense reforms and represent neither the death knell for the rule of law nor a single, double or even triple heresy, as those who listened to earlier debates might perhaps have concluded.

Your Lordships’ House is of course very fortunate in having available the range of legal expertise that it does for a debate of this nature. This clause and Part 4 have been very thoroughly scrutinised, as, of course, is the proper function of this House. However, your Lordships should be under no illusion about the scale of the attack on this part of the Bill. The amendments would remove altogether any reform at all of judicial review, notwithstanding that this—whatever the regrets of the noble Lord, Lord Lester, and others—is a coalition government Bill, and one that has been through all its stages in the House of Commons. It is of course entirely open to your Lordships to take such a course, but that would represent a substantial challenge to the will of the elected House by a revising Chamber.

Clause 70 will first be relevant after the defendant is notified that the judicial review has been brought against it by a claimant who is arguing that there were flaws in the process. It will be open to the defendant to indicate that those flaws were minor and highly unlikely to make a difference to the outcome. The court could then consider whether that was the case, either on the papers or at an oral hearing. If satisfied that the “highly likely” test was met, the court would not give permission to proceed.

The defendant might be a government department, a local authority or a local hospital trust. The claimant might be an individual with a genuine interest, but could equally be a large corporate entity advised by the finest legal brains. Judicial reviews are not always an impecunious or disadvantaged individual, as the noble Baroness, Lady Campbell, referred to, pitted against an overmighty government department. The courts can and do already apply no different principles, so to decide that this is a judicial no-go area is to ignore what happens already. However, that threshold requires at the moment that the flaw would “inevitably” have not made a difference. While that is extremely high, the threshold that this clause would apply—“highly likely”—is also difficult to meet. Where a court entertains any real doubt that there could have been a difference, it need not refuse permission or a remedy. By doing that, the clause will help to ensure that judicial review focuses on matters of significant importance, not on mere technicalities that are unlikely to affect the outcome.

The amendments that have been tabled are intended to revise several elements of the clause. They would variously remove or amend the requirements to consider “no difference” arguments, where raised, and to refuse permission or remedy and replace the “highly likely” threshold with an “inevitable” standard—in other words, to maintain the status quo. Amendment 155 would delete the clause entirely, recreating the present approach, and would significantly weaken the effectiveness of

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the clause in dealing with minor technicalities. Minor failures in process, highly unlikely to have made a difference, would remain a hook to delay a perfectly legal policy that was simply unpopular.

Where the judge is satisfied that it is highly likely that a complained-of flaw would have made no difference in substance to the applicant, it is the Government’s view that continuing that case is not likely to be a good use of scarce, taxpayer-funded court resources. It is the Government’s view that neither the overriding objective nor the public interest is served by prolonging those cases where the judge is satisfied that the “highly likely” threshold is met.

In Committee on 28 July we debated—and have referred to again today—the position of declarations, in which the court sets out its view of the applicable law without providing an enforceable remedy to benefit the claimant. As I set out in my letter of 13 August, the Government’s view is that the clause does not require amendment on that point. The court will be able, so far as it is able at the moment, to entirely properly set out its view of the applicable law when either refusing permission or remedy. If the case has merits, or the judge thinks it might be important or desirable to grant a declaration, then he or she will probably give permission anyway, although not in a weak case. To quote De Smith again:

“If an issue is theoretical, then in ordinary civil proceedings that is a compelling factor against the grant of relief”.

That remains the situation even if one of the parties has a perfectly legitimate reason for seeking clarification of the legal situation. Judicial review is about remedy.

Concerns have been raised about the risk of delay, and Amendment 149 appears aimed, in part, at seeking to avoid that. The Government’s view remains that where a no difference argument is raised, the court should consider it, and that the risk of significant additional delay can be mitigated.

As rules of court will set out the procedural details to give effect to these changes in practice in due course, it would be wrong of me to pre-empt their consideration at this stage. But at present I see no sense, for example, in requiring the court to hold an oral hearing before permission to ventilate no difference arguments which, on the papers, are clearly not made out. In addition, the court could look to costs if raised in inappropriate cases. Consequently, I believe that the risk of additional delay is manageable.

I remain confident that the clause strikes a fair and sensible balance between limiting the potential for the abuse of judicial review and protecting its vital role as a check on public authorities, and that it preserves an appropriate balance in practice between the legislature and the judiciary.

Let me conclude. I understand why there is nervousness when a Government seek to change, however modestly, the law in relation to judicial review. This is by no means the first Government to find, from time to time, judicial review a little irksome. That is of course no reason for emasculating the law on judicial review. Let me be clear: the Government’s reforms do not do that. I understand also that lawyers are protective of this area of the law. As the noble and learned Lord, Lord Phillips, said, it has been created, not by Parliament

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but by lawyers and judges. However, it is important that the law in this area should not result in an impression that it is created not only by lawyers but for lawyers. The noble Lord, Lord Pannick, said in Committee that Governments do not like losing cases and that in the immediate aftermath of doing so tend to mutter darkly about the iniquities of judicial review. Then, he said, they calm down. The noble and learned Lord, Lord Irvine, from whom the House was very glad to hear, made a similar contribution. A degree of annoyance is understandable.

However, I suggest that calm is the right response to these modest reforms, just as it is when the Government have calmed down after losing a judicial review. It is important that Governments do lose cases. I recently returned from Kyrgyzstan, where I lectured a group of students who were astonished when I told them that the Government in this country regularly lose cases.

I respectfully ask the House that when approaching these modest reforms it adopts a measured approach, notwithstanding the powerful speeches that have been made today, and see these provisions for what they really are: a sensible adjustment to the existing law, not an attack on the rule of law.

During the course of the debate there has quite rightly been frequent reference to the late Lord Bingham’s book, The Rule of Law. In it, there was discussion about the prevailing constitutional principle; whether it is indeed the sovereignty of Parliament, as most of us would have it, or whether there is some new basis—namely, the rule of law referred to by the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Steyn. The late Lord Bingham certainly favoured parliamentary sovereignty being the governing principle.

Be that as it may, judicial review should coexist with the right of Parliament to legislate. Nothing about these reforms undermines that. I therefore ask noble Lords and noble and learned Lords to consider carefully the significance of this outright attack on a government Bill and ask the noble Lord, Lord Pannick, to withdraw his amendment.

Lord Pannick: I am grateful to all noble Lords who have spoken in this fascinating debate. Clause 70 has been defended by the noble Lords, Lord Horam and Lord Tebbit, and by the Minister, whom I thank for his very full response to these amendments, on the basis that there is too much judicial review, it takes too long and is too expensive, and that something needs to be done about it. However, as so many of your Lordships have explained this afternoon, that fails to recognise the threat that Clause 70 poses to the rule of law. As we have heard, that is not something, as the Minister was suggesting, that only lawyers are concerned about.

For my part, I am perfectly prepared to accept greater powers for the courts to throw out abusive cases. I am happy that we should speed up the legal process and make it less expensive. My concern is that Clause 70 is a blunt instrument. It would impose a duty on the judge to dismiss cases which raise issues of public and legal importance. That is why Amendment 146 proposes that Clause 70 should confer a discretion rather than impose a duty; the Minister repeatedly referred to a “fair balance”, and that is a fair balance.

27 Oct 2014 : Column 978

As the noble and learned Lord, Lord Woolf, said this afternoon, if the judge is to do justice in this important and sensitive context, he or she must retain a discretion so that judges can continue to decide issues of great public importance. That is what is at stake here. Should an Act of Parliament say that the judge has no power to rule that a governmental exercise of power is unlawful? With all due respect to the Minister, that is not a modest reform. I invite your Lordships to retain judicial discretion. The Minister spoke of mutual respect between Parliament and the courts. I think that mutual respect is best maintained by writing judicial discretion into Clause 70.

I am sorry that the Minister should suggest today that this House performing its vital role of scrutiny of the Bill by retaining judicial discretion is somehow an inappropriate challenge to the elected House. It is nothing of the sort.

Noble Lords: Hear, hear.

Lord Pannick: Amendment 146 is to be read together with Amendments 147, 149, 151, 152 and 154, each of which would substitute judicial discretion in Clause 70 for absolute judicial duties. I wish to test the opinion of the House.

5.14 pm

Division on Amendment 146

Contents 247; Not-Contents 181.

Amendment 146 agreed.

Division No.  1


Adams of Craigielea, B.

Addington, L.

Ahmed, L.

Alli, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bassam of Brighton, L.

Beecham, L.

Berkeley, L.

Bhatia, L.

Blackstone, B.

Blood, B.

Boateng, L.

Boothroyd, B.

Borrie, L.

Bragg, L.

Brennan, L.

Broers, L.

Brooke of Alverthorpe, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Belmont, L.

Butler of Brockwell, L.

Butler-Sloss, B.

Campbell of Surbiton, B.

Campbell-Savours, L.

Carlile of Berriew, L.

Carter of Coles, L.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Colville of Culross, V.

Condon, L.

Cormack, L.

Corston, B.

Coussins, B.

Craigavon, V.

Cunningham of Felling, L.

Davidson of Glen Clova, L.

Davies of Oldham, L.

Davies of Stamford, L.

Deben, L.

Derby, Bp.

Desai, L.

Donaghy, B.

Doocey, B.

Drake, B.

Drayson, L.

Dubs, L.

Eatwell, L.

Elder, L.

Elystan-Morgan, L.

Evans of Temple Guiting, L.

Falconer of Thoroton, L.

Falkland, V.

Farrington of Ribbleton, B.

Fellowes, L.

Filkin, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gavron, L.

Gibson of Market Rasen, B.

Giddens, L.

27 Oct 2014 : Column 979

Glasman, L.

Golding, B.

Goodhart, L.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Graham of Edmonton, L.

Grantchester, L.

Greenway, L.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, L.

Haskel, L.

Haskins, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hollis of Heigham, B.

Hope of Craighead, L.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Aberavon, L.

Howe of Idlicote, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hylton, L.

Irvine of Lairg, L.

Jay of Ewelme, L.

Jones, L.

Jones of Moulsecoomb, B.

Jones of Whitchurch, B.

Jordan, L.

Judd, L.

Judge, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Kirkwood of Kirkhope, L.

Knight of Weymouth, L.

Laming, L.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

Lennie, L.

Lester of Herne Hill, L.

Levy, L.

Lichfield, Bp.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Listowel, E.

Lloyd of Berwick, L.

Low of Dalston, L.

Luce, L.

McAvoy, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

Mackay of Drumadoon, L.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Mallalieu, B.

Mandelson, L.

Mar, C.

Marks of Henley-on-Thames, L.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan of Drefelin, B.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Morris of Yardley, B.

Murphy, B.

Noon, L.

Nye, B.

O'Loan, B.

Ouseley, L.

Pannick, L.

Patel, L. [Teller]

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

Phillips of Sudbury, L.

Phillips of Worth Matravers, L. [Teller]

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prashar, B.

Prosser, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Redesdale, L.

Rees of Ludlow, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Rennard, L.

Rochester, Bp.

Rogan, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

St Albans, Bp.

Sawyer, L.

Scotland of Asthal, B.

Scott of Foscote, L.

Sherlock, B.

Shipley, L.

Simon, V.

Slim, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Snape, L.

Soley, L.

Steel of Aikwood, L.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Strasburger, L.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

27 Oct 2014 : Column 980

Thornton, B.

Tomlinson, L.

Tonge, B.

Tunnicliffe, L.

Turnberg, L.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

Warnock, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Williams of Baglan, L.

Williams of Crosby, B.

Williams of Elvel, L.

Willis of Knaresborough, L.

Wilson of Tillyorn, L.

Wood of Anfield, L.

Woolf, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.


Ahmad of Wimbledon, L.

Anelay of St Johns, B.

Arran, E.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Bates, L.

Benjamin, B.

Black of Brentwood, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bourne of Aberystwyth, L.

Brabazon of Tara, L.

Bradshaw, L.

Bridgeman, V.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Byford, B.

Caithness, E.

Carrington of Fulham, L.

Cathcart, E.

Cavendish of Furness, L.

Chalker of Wallasey, B.

Chisholm of Owlpen, B.

Colwyn, L.

Cooper of Windrush, L.

Cope of Berkeley, L.

Courtown, E.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Dundee, E.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Eden of Winton, L.

Falkner of Margravine, B.

Farmer, L.

Faulks, L.

Fearn, L.

Feldman of Elstree, L.

Fink, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

German, L.

Glasgow, E.

Glendonbrook, L.

Goodlad, L.

Grade of Yarmouth, L.

Grender, B.

Hamilton of Epsom, L.

Harris of Peckham, L.

Henley, L.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Hooper, B.

Horam, L.

Howard of Lympne, L.

Howard of Rising, L.

Howe, E.

Howell of Guildford, L.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Kilclooney, L.

Kirkham, L.

Knight of Collingtree, B.

Kramer, B.

Lawson of Blaby, L.

Leach of Fairford, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Loomba, L.

Lothian, M.

Luke, L.

Lyell, L.

Lytton, E.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Mancroft, L.

Marlesford, L.

Mawson, L.

Mobarik, B.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

27 Oct 2014 : Column 981

Naseby, L.

Nash, L.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Northover, B.

O'Cathain, B.

Oppenheim-Barnes, B.

Paddick, L.

Palmer of Childs Hill, L.

Parminter, B.

Perry of Southwark, B.

Popat, L.

Purvis of Tweed, L.

Rana, L.

Randerson, B.

Rawlings, B.

Risby, L.

Roberts of Llandudno, L.

Roper, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Clifton, L.

Smith of Newnham, B.

Spicer, L.

Stedman-Scott, B.

Stewartby, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strathclyde, L.

Suri, L.

Suttie, B.

Taverne, L.

Taylor of Holbeach, L. [Teller]

Tebbit, L.

Teverson, L.

Thomas of Swynnerton, L.

Tope, L.

Trefgarne, L.

Trenchard, V.

True, L.

Truscott, L.

Ullswater, V.

Verma, B.

Wade of Chorlton, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Williams of Trafford, B.

Willoughby de Broke, L.

Younger of Leckie, V.

5.28 pm

Amendment 146A not moved.

Amendment 147

Moved by Lord Pannick

147: Clause 70, page 67, line 32, leave out “not” and insert “decline to”

Amendment 147 agreed.

Amendments 147A to 148A not moved.

Amendment 149

Moved by Lord Pannick

149: Clause 70, page 68, line 4, leave out “must” and insert “may”

Amendment 149 agreed.

Amendments 149A to 150A not moved.

Amendments 151 and 152

Moved by Lord Pannick

151: Clause 70, page 68, line 7, leave out “must” and insert “may”

152: Clause 70, page 68, line 27, leave out “must” and insert “may”

Amendments 151 and 152 agreed.

Amendments 152A to 153A not moved.

27 Oct 2014 : Column 982

Amendment 154

Moved by Lord Pannick

154: Clause 70, page 68, line 34, leave out “must” and insert “may”

Amendment 154 agreed.

Amendment 155 not moved.

5.30 pm

Clause 71: Provision of information about financial resources

Amendment 156

Tabled by Lord Beecham

156: Clause 71, page 69, line 5, leave out from “specified” to end of line 6 and insert “by the Secretary of State in regulations”

Lord Beecham: My Lords, in the interests of making progress with more important matters, I shall not move this amendment.

Amendment 156 not moved.

Amendment 157

Moved by Lord Pannick

157: Clause 71, page 69, line 6, after “paragraph” insert “, or, notwithstanding a failure to do so, the court in its discretion considers that it is nevertheless appropriate to grant the applicant leave to make the application for judicial review”

Lord Pannick: My Lords, I shall speak to Amendments 157 to 163. Clause 71 requires the provision of information about financial resources in judicial review claims. Clause 72 will regulate the use of information about financial resources on the assessment of costs in judicial reviews. The position is that the Government are seeking to impose duties on applicants for judicial review to provide information about financial resources when no such duties are imposed on claimants in other forms of civil litigation. I am aware of no general evidence of any mischief which these clauses are designed to remedy. They will have a severely inhibiting effect on judicial review applications.

If a claimant is able to demonstrate that they have a properly arguable case on the merits and they satisfy other requirements such as standing and time limits, they should not be further obstructed and deterred by complex requirements to disclose financial information. Even if there were a problem which needed to be addressed, I am concerned that Clauses 71 and 72 again, like Clause 70 on which the House has just expressed its view, are drafted in terms of judicial duties rather than conferring a discretion on the judge which would enable him or her to have regard to the circumstances of the individual case. Amendments 157, 158 and 160 would replace judicial duties with a judicial discretion. I beg to move.

27 Oct 2014 : Column 983

Baroness Lister of Burtersett (Lab): My Lords, I support these amendments. First, I declare an interest as the honorary president and a former director of the Child Poverty Action Group. It is an organisation which helped to pioneer the use of judicial review for the marginalised citizens about whom we heard in debating the previous amendment, thus emphasising that we are talking about not just the interests of lawyers but the interests of some of the most deprived, marginalised citizens of our country. I speak also as a member of the Joint Committee on Human Rights. I remind your Lordships’ House that in the first of our two reports on our grave concern about the human rights implications of these changes, we said:

“We therefore do not consider the Government to have demonstrated by clear evidence that … judicial review has ‘expanded massively’ in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate”,

notwithstanding what the noble Lord, Lord Horam, said with regard to the previous amendment. I have reread our debates on this issue and I have read all the briefing that we have received. I can only come to the conclusion that the provisions in Part 4 are a series of highly imperfect solutions looking for a problem—a problem that no one else can see.

As regards Amendment 157, in Committee I raised the concerns of NGOs. I said that they warn of,

“the chilling or deterrent effect of these clauses, which appear to mean that people who are not directly party to the proceedings but who have supported an applicant could be held liable for costs”.—[

Official Report

, 30/7/14; col. 1601.]

Michael Spencer, solicitor for the Child Poverty Action Group, said:

“If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too”.

The Minister responded quite fully to my concerns and fears. He said that,

“we do not believe that the provisions would affect the common law position concerning when costs would be awarded against a party … These clauses should not cause anyone to pay costs who would not do so under the current law, except those who should but of whom the court is unaware. I hope that will allay, to some extent, the fears that some have about making challenges to a school or some other small project, which they might reasonably hope would be the subject of a judicial review”.—[

Official Report

, 30/7/14; col. 1612.]

However, I fear that the concerns and worries of groups outside this House have not been allayed. As the most recent briefing from this very wide group of NGOs, which represents a wide range of lawyer and non-lawyer interests in this area, still raises concerns, I discussed with Justice why it was still worried about this, despite the reassuring words that the noble Lord gave us in Committee. Justice said:

“While the Minister’s assurance is welcome, as the Minister explains, he cannot predict how the courts will respond to the change in position proposed by the statute. Similarly, Parliament cannot have a full picture of the rules which the court will be applying, as the Bill provides for the detail of the change to be in the rules to be set down by the rules committee. Yet, there is nothing in the Bill which would send a message to the courts that they should not depart from their previous approach to the allocation of costs. If the Government doesn’t intend to change the position in the common law, the question is: ‘Why not make that clear on the face of the Bill?’. Instead, by leaving the

27 Oct 2014 : Column 984

ambiguity in place, and creating a clean statutory slate of instructions for the courts, Ministers are creating a real risk that individuals will be deterred from litigating while the costs risk is ascertained. As and until the position is clear, individual solicitors will be unable to advise their clients on the likely costs risk, if any. Caution will be required. The breadth of the disclosure requirement in Clause 71 makes this chilling and deterrent effect particularly dangerous”.

I will not go on but there is a real danger here that I hope we in this House will prevent happening.

Lord Brown of Eaton-under-Heywood (CB): My Lords, I, too, support Amendment 157 for the reasons already given by the noble Lord, Lord Pannick, and the noble Baroness, Lady Lister. There are indeed currently real perils in Clause 71 in the way of the chilling effect that it must inevitably have. In Committee on 30 July, as reported at col. 1607, in relation to what was then Clause 65 and is now Clause 71, the Minister twice said that the senior judiciary welcomed this provision. I was troubled by that and looked at the response of the senior judiciary of last November. I hope that I have the right document and that I have isolated the right paragraphs; that is, paragraphs 34 and 38. I am sure that the Minister will correct me if I am wrong, They suggest that, in certain circumstances, there should be mandatory disclosure of financial circumstances. As I read that response—and I am unsurprised by this—the important point is that it refers only to when determining whether to make a protective costs order or when questioning,

“whether to make a costs order against a non-party”.

Those are not routine events, and they would not require, as the clause as it stands does, a disclosure of financial resources on all applications. If I am wrong about that the Minister will correct me, but if I am right, with respect, that wholly deprives him of the support on which he rested in Committee: the senior judiciary’s response.

Lord Marks of Henley-on-Thames: My Lords, I simply do not accept that it is right that a requirement for financial disclosure should be imposed before the permission stage in a judicial review application. The time for considering such information is when the order for costs is considered, and not before. At the costs stage—the stage with which Clause 72 is concerned—it is clear which side has won, and the judge knows who is and who is not vulnerable to a costs order. Only at that stage is the issue of financial support relevant, and at that stage the present position is that the judge already has the power to make a costs order against a non-party who has financially supported an unmeritorious application. There is no utility in expanding or developing that power further. But if there is to be legislation, I urge the House to accept that it should be left to the discretion of the judge as to what order for costs he makes. There may be some sense, however, in legislating for the court at that stage to have the power to require financial information in order to help the judge form a conclusion. That is the limited purpose of my amendments to Clause 72. With your Lordships’ consent, I shall detain the House no further.

Lord Mackay of Clashfern (Con): My Lords, those of your Lordships who were present in Committee will remember that I read out a substantial section of

27 Oct 2014 : Column 985

a book by the noble Lord, Lord Adonis, in which he described what I understood to be the use of judicial review as a means of frustrating a government policy that had been passed by Parliament. I shall not repeat the detail now; it is in the book and I have put it on the record here. The problem on which the noble Lord focuses in that passage is that the arrangements made for pursuing this policy involved looking round for somebody who could be a legally aided litigant, and would therefore be provided with legal aid and also protected against costs in the event of his losing. The full detail is given in those passages.

It seems to me that some mechanism is required to enable the judges to deal with such points as part of the decision on whether permission will be granted to a particular individual to proceed. So far as I am concerned, judicial discretion in this area would be perfectly reasonable and, as has been said earlier, rules of court would be required to deal with it. There is definitely a problem here that needs to be dealt with at the opening stage of the proceedings in order that justice may be done in relation to that kind of campaign, which I have no reason to doubt is accurately described by the noble Lord, Lord Adonis, whom I am sure your Lordships know and respect.

Lord Lester of Herne Hill: My Lords, my experience of protective costs orders arises from the Corner House case. Corner House was a tiny NGO with almost no money and it was challenging the lack of proper consultation when the export credit guarantee issues arose in relation to possible corruption. My recollection is that the Court of Appeal developed at common law the idea of a protective costs order, but it was extremely careful to limit that so that anyone with real funds would have to account at the earlier stage before such an order would be made.

I have not been aware, in subsequent case law since the decision of the Court of Appeal in the Corner House case, of protective costs orders being abused. My impression is that the courts have been strict, disciplined and very jealous of the need to avoid any waste of public money. Therefore, although I agree with the noble and learned Lord, Lord Mackay of Clashfern, that there may be some scope for rule-making, I do not believe that there is any need for a statutory requirement such as the one we are now considering.

5.45 pm

Lord Beecham: My Lords, the Opposition will support the amendment moved by the noble Lord, Lord Pannick. It seems to me quite possible, within the framework of that amendment, to proceed along the lines mentioned by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Lester.

Lord Faulks: My Lords, Clauses 71 and 72 are about transparency. They require an applicant for judicial review to provide, with their application, information on funding for their case and that the court considers this information when exercising discretion to order costs. It is important to emphasise that, while permission will not be granted until information has been provided, there is no question of preventing permission if the applicant’s funding is insufficient, and the judiciary

27 Oct 2014 : Column 986

continue to have complete discretion in relation to the making of costs orders against third parties disclosed in that information.

Requiring the applicant to provide this information to the court will give the court the information necessary to achieve flexibility in apportioning costs fairly, and to prevent a third party from using a front man or shell company to shield themselves from incurring their share of costs. Your Lordships have heard that there is a potential problem, and although it is not always easy to know what the situation is, this provision should enable the courts to make their decision based on evidence. We say that the judges do not always have all the relevant information available or presented to them, which has the potential to hinder their ability to order costs in a just and equitable manner.

Amendments 157 and 158 would stop the provision of information about financial resources being mandatory, allowing for permission to be granted where no information has been provided but permission is “nevertheless appropriate”—which is undefined. The Government consider this unnecessary, as the clause does not stop permission being granted if insufficient finances are available. It requires only that the court should be provided with an accurate picture. The court still has discretion.

The clauses will not require onerous or invasive information from applicants, and the information requested should always be information that the applicant would have, even if they did not have funding at that stage. The clauses are designed to promote transparency in court proceedings, not to provide for a time-consuming forensic examination of an individual’s financial affairs.

The noble Lord, Lord Beecham, has not moved Amendment 156. The amendments tabled by the noble Lord, Lord Marks, and Amendment 162, tabled by the noble Lord, Lord Pannick, seek to change when the court should have regard to funding information, and what that information should be. My understanding is that they rely on Clause 71 being removed from the Bill and set out the power for the court to require the applicant to provide certain information about funding when the court is determining, or intends to determine, costs. They also limit the information to sources of funding that are actually available to the applicant, rather than sources that are likely to be available, and rather than looking at the applicant’s ability to fund the judicial review generally, the information would be limited to how the applicant would meet the other side’s costs.

Amendment 161A would mean that those who are likely to fund and drive litigation could escape the appropriate costs liability simply by not promising to provide the support. Amendments 160 and 161 seek to instate a position where the court need not consider financial information provided by the applicant, even if it considers it appropriate. In my view, these amendments are unnecessary and defeat the point of Clause 71 in making sure that the court has clear and transparent information early in proceedings.

The key to Clauses 71 and 72 is they do not create new cost liabilities for claimants, nor does the sufficiency of funding they demonstrate have an impact on the progression of the case. In answer to the noble Baroness,

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Lady Lister, the courts would not be expected to make an award against a third party who was simply funding the litigation and not seeking substantially to control, influence or benefit from it. I said words to that effect in Committee; I say them again now, and I hope those words will be useful when anyone comes to interpret this provision should it become law. It is clear that the applicable case law requires more than only funding; as in the case law referred to by my noble friend Lord Lester, the person must be seeking to drive the litigation or to benefit from a potential remedy in the case. I should emphasise that.