Tory and Lib Dem rebels join with Labour and crossbencher peers to pass amendments to part 4 of the Criminal Justice and Courts Bill

Five hours of debate in the House of Lords saw the justice secretary heavily defeated in his plans in limit the ability to challenge public decisions via “ill-founded” judicial review proceedings.

Justice secretary and Lord Chancellor, Chris Grayling, is of the belief that the current judicial review system is mired in large numbers “weak” or “ill-founded” applications, which take up large amounts of court time and costs.

Speaking in December 2012, he said: “I am concerned that judicial review is being used increasingly by organisations for PR purposes. Often the mere process of starting a judicial review will generate a headline. We want to go back to a system where judicial review is available for genuine claims, which provides people with access to judicial review where they need it but weeds out the cases that should frankly never be there in the first place.”

Crossbench alliance

The debate, last night, saw Tory and Liberal Democrat rebels join forces with Labour peers and crossbenchers to defeat part 4 of the government’s Criminal Justice and Courts Bill. This was despite Lord Tebbit railing against an “unelected dictatorship” of judges and declared voters, not judges, should be the decision makers.

Justice minister Lord Faulks insisted ministers were not trying to “fetter or undermine” the process of judicial reviews or limit the discretion of judges. Where the government had clearly followed due process, Lord Faulks said time would be “better spent taking forward the reforms the country needs” rather than defending decisions in the courts.

“The measures represent a sensible and considered package which will improve the process of judicial review for those with a proper case put well and founded on flaws which would have made a difference to the outcome,” he said. “We’re striking a balance between limiting potential for abuse of judicial review and protecting its role as check on public bodies. This is a sensible adjustment to existing law – not an attack on the rule of law.”

Nevertheless, the government proposals were defeated after peers voted for the three rebel amendments to the Bill by clear majorities. All three amendments were proposed by crossbench peer Lord Pannick who commented that part 4 of the Bill represented a “blunt instrument imposing a duty on the judges to dismiss cases which raise issues of public and legal importance”.

Peers voted by 219 to 186, a majority of 33, in favour of an amendment which reversed the government’s plans to create a presumption that those applying to intervene in a judicial review will have to pay their own costs.

Peers also voted by 247 to 181, a majority of 66, to ensure judges retained their discretion over whether to hear judicial review applications. The justice secretary lost yet another vote of 228 to 195, again a majority of 33, over the issue of requiring applicants for judicial review to provide information on the financing of the application.

‘Elective dictatorship’

During the debate, former lord chief justice Lord Woolf stressed the importance of judicial review in the UK and said that judges must keep their discretion over hearing judicial review as the alternative amounted to an ‘elective dictatorship’: “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.”

In support, Lord Phillips commented: “[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 that parliament did not create judicial review; the judges did. It 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.”

Rebel Liberal Democrat peer, Lord Marks offered the following: “Part 4 is a serious infringement of the right of the citizen to challenge unlawful action by the Executive before the courts and thus, frankly, as an assault on the rule of law. 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.”

Former Lord Chancellor, Lord Irvine of Lairg, added the judiciary is a vital component in the UK’s separation of the powers. “Judicial review is indispensable 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.”

Litigants in person

On the critical role played by interveners in judicial reviews, Lord Low suggested the government’s proposals would affect vulnerable litigants: “Following cuts to legal aid, children are increasingly forced to face court proceedings without a lawyer. In these circumstances, litigation brought by charities, NGOs and children’s rights organisations in the public interest is ever more important.

“Equally, in the new environment where they are increasingly faced by litigants in person, the courts increasingly value the contribution of third-party interveners providing expert advice to assist them on specific points of law and fact, including points on what is in the children’s best interests.”

Responding to the vote in the Lords, shadow justice secretary Sadiq Khan MP said: “This is a humiliating slap down for the government. These changes would have weakened judicial review, and would have placed the government above the law. This was a massive grab for power which is why Labour voted against it. Judicial review is a crucial tool for the British people to hold to account the actions of those in positions of power and responsibility.

“If these plans had gone through it would have been a recipe for bad decision making allowing governments and ministers to get away with pushing through actions that were potentially unlawful.”

The government’s defeat comes following calls from the legal profession and a host of charities who jointly warned peers that Grayling’s restrictions on access to judicial review would have a ‘chilling effect’ on those seeking justice.

Meanwhile, The Times has published a letter from all of the Labour party’s serving police and crime commissioners, including former MPs Tony Lloyd and Vera Baird QC, attacking the government’s plans, which combined with the cuts to legal, create a “potentially deep injustice” which would “particularly affect the ability of individuals, small groups and charities” when they take on the state in the courts.

Commenting on the letter, shadow justice minister, Andy Slaughter, said: “This is just the latest in a series of significant interventions and attacks regarding the government’s reckless proposals for judicial review. Chris Grayling should scrap these proposals before it is too late and his party further undermine the rule of law.”

The Bill will now return to the House of Commons for further debate.

This article was first published in the Solicitors Journal on 24 October 2014 and is reproduced with kind permission.