The vote on the Criminal Justice and Courts Bill (CJCB) on Monday 2nd December has received much comment for Liberal Democrat MPs failing to support amendments passed in the House of Lords and supported by Lib Dem Peers. Those amendments aimed to row back some of the Justice Secretary’s attempts to curtail the Judicial Review process – and with it, so the Government’s critics say, the Rule of Law and the right of citizens to challenge the decisions of public bodies in the Courts.
Now this is a particularly technical area over which there’s much misinformation, and there’s certainly no suggestion that Judicial Review is being abolished but it is being made a whole lot harder! Government wants to tighten the rules in several ways, create financial disincentives against pursuing Judicial Reviews, and introduce some new arrangements as to how Courts should handle them, where previously such matters were within the discretion of Judges. Justice Ministers have already restricted how legal aid can fund Judicial Review cases, and in the CJCB legislation they go further by:
introducing a peculiar new test at the ‘permission stage’ that if it appears “highly likely” to a judge that on the facts of a case the outcome would not have been substantially different then Judicial Reviews should not be allowed. (see note below)
new rules for “interveners” – charities, NGOs and the like that decide to submit critical expert evidence briefs (often decisive in case outcomes) to the Court, are to be exposed to paying the costs of other Parties to the case; a huge and unquantifiable risk for those interveners.
thirdly introducing a plethora of reporting requirements and regulations around how Judicial Reviews are being funded, especially if there are “third parties” involved, even if it is just family members chipping-in, with further costs, risks and penalties if they don’t get this right.
The Lords amendments did not get rid of these provisions but (in summary and for the sake of simplicity) modified them significantly so that Judges can decide how they should apply (if at all) in different circumstances and different cases; the amendments change the legislative language from judges “must” to “may”. Given that the House of Lords is packed with experienced and eminent lawyers and that the maintenance of judicial discretion was their main concern, it was a sensible and appropriate tack to take. The evidence base to support the Government’s reforms is pretty thin, precisely because all cases are different so one size solutions cannot fit all. Most Lib Dem peers voted for the Lords’ Amendments and some like Jonathan Marks had their name all over them. So you might think it would be politically sensible for MPs to support their Lords colleagues and vote to retain the amendments but no: All, with the exception of Sarah Teather, voted with Chris Grayling to overturn them.
The debate says a lot about the Government’s relationship with power and its’ approach to ‘checks and balances.’ The most troubling aspect of the debate has been Government, with all its power, trying to pretend it is somehow the poor “victim” in Judicial Review cases with a great big corporately funded and merciless Judicial Review industry kicking it around all the time. The reality – as anyone who’s been involved in a Judicial Review in any capacity knows – is that it’s actually hugely complex, difficult and expensive with numerous hurdles to pursue a case through the courts. However, people still do it because where applicants win there are huge benefits from Judges clarifying what the law is – this is especially so in areas like Housing and Community Care (or indeed human rights, as Human Rights Act cases are a form of Judicial Review!); cases like Coughlan have literally been landmarks in determining both the entitlements and limits of the state. Indeed these cases can be just as ground-breaking as Brown vs Board of Education have been in the US.
So what of our Party’s role in this? Firstly, the co-ordination of our Parliamentary operation has for the umpteenth time been shown up as dysfunctional with the Commons and Lords parties voting in different ways. But here I suspect one can argue the toss around concessions, tactics and realpolitik, Lords-Commons ping-pong internal communications, how strong the whip needed to and how far we could break ranks etc. They may have had their reasons, though if so they should reflect on whether those pre-election photos standing outside court buildings shoulder to shoulder with campaigners celebrating their Judicial Review victories (as many of our MPs have done) might appear again shortly in a much less flattering light!
Secondly and more troubling is that our MPs in particular seem to show limited understanding as to why this stuff really matters from a liberal perspective. None spoke in the debate but almost all voted en bloc. None were even in the Chamber apart from Simon Hughes dutifully holding his Ministerial folder, and it’s this palpable disengagement from rule of law and civil liberties concerns that’s troubling (the same might be said of our approach on legal aid, secret courts, DRIP, statelessness, and other legal issues I could go on about at length).
The sad reality is they just appear to be strangely ignorant about the whole civil rights tradition of liberalism which fought many a legal and political battle to claim rights from the state, or redress historic injustices. So now the future of great advances in Judicial Review like the impact of the Human Rights Act hang in the balance with the Tories confident they are one step closer to repealing it. And our political credentials for standing up and being counted as defenders of the Rule of Law and Government under due process and checks/balances are weaker.
We stand on the shoulders of those who fought for civil rights, whether in politics, in the law courts or in the International Councils which gave us trans-national human rights protections. And if we ever forget this we cease to be liberals!
For all judicial review cases in this country permission from the court already has to be sought and given in order for the case to proceed. The difficulty with the Government’s “highly likely” test proposed here is illustrated by the case which sought a public inquiry into the murder of Alexander Litvinienko. Even after a High Court decision of a panel of three senior and experienced judges it was still impossible to say that the fact of the judicial review would have made a substantial difference to the decision. The decision was referred back to the Home Secretary to be remade. In the event she changed her mind, but this would not have been known at the permission stage. Also, crucially, in legally-aided cases funding is not paid until a JR case has permission to be brought. So from a claimant’s point of view the prospect of bringing a case becomes even more daunting with much more work to be done, potentially for no payment whatsoever (if permission is refused).