The coalition government yesterday overturned the amendments made by the House of Lords to the reform of judicial review (JR) contained in the Criminal Justice & Courts Bill.
MPs voted with majorities of around 110 to reinstate Lord Chancellor Chris Grayling’s preferred approach to curbing JR.
Among those to vote against the government were Conservative Zac Goldsmith, Liberal Democrat Sarah Teather, and UKIP pair Douglas Carswell and Mark Reckless.
The bill is in its ‘ping pong’ stage, where the two Houses seek to reconcile the different versions they produced. It will return to the Lords next week, where peers could choose to undo the government’s latest amendments. Ultimately, though, the Commons can force its will.
The Lords amendments had sought to give judges greater discretion over whether to reject a case if the defendant showed that it was highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred; over granting leave to pursue a JR without details of how the case was being financed where “appropriate”; and over granting costs orders against interveners.
The Ministry of Justice had sought to address concerns about the last issue with a new clause – also backed by MPs – that would mean an order would not be made if certain conditions were met.
Mr Grayling told the Commons: “As Lord Chancellor I take my responsibility to uphold the rule of law very seriously, but I do not believe that the way in which it has evolved in relation to the current use of judicial review is consistent with or necessary to uphold the rule of law, and I believe the time has clearly come to set some limits to prevent misuse.
“Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in government and Parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected government in taking decisions over the essential interests of this country. Yet, in far too many examples, that is precisely what it has become and is why reform is necessary…
“Whichever party is in government after next May will face a wave of pressure groups trying to use judicial review to delay decisions, to avoid spending reductions, and to generate publicity for their own cause.
“If a group can find a clever enough lawyer, almost any government decision can be judicially reviewed, and very many are, not necessarily on the basis of specific breaches of specific laws, but far too often on a loose argument that something was not quite right with the consultation paper, that there should have been a bit more consultation, or that a tough decision seen in isolation was irrational.
“Without undermining the essential core of judicial review, we need to restore common sense to the way in which the judicial review system works… What [our reform] stops is judicial review on technicalities.”
Labour MP Frank Dobson argued that the changes were encouraging law breaking, but Mr Grayling said “very many judicial reviews are not about whether we have broken a law passed by this place – of course, we must be challenged if that happens – but are based on a much looser interpretation of what should or should not happen.”
Labour justice spokesman Andy Slaughter argued that “against the clear voice of the experts, which says that this attack on judicial review is a constitutional provocation, we have the childish statements from the Lord Chancellor, who says that judicial review is a left-wing conspiracy.
“He should tell that to those who are reliant on the independent living fund, the Gurkhas and the victims of care home abuse, or indeed the Countryside Alliance and Stop HS2, all of which are successful challengers of his government’s arbitrary exercise of power.
“Each clause… purports to be a simple tinkering change and a way of dealing with things at the margin to ensure that unmeritorious cases do not come forward. However, evidence from the judiciary, practitioners, interveners and everyone who has participated in the process suggests that the clauses will have a chilling and discouraging effect. That is as true for provisions on financial barriers as for the ‘highly likely’ test or interveners.”