The House of Lords yesterday reinstated two of the three amendments it previously passed  on the government’s judicial review reforms as it emerged that Lord Chancellor Chris Grayling had given MPs incorrect information over a key aspect of them last week.
Peers supported Lord Pannick QC in amending clause 64 of the Criminal Justice & Courts Bill 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.
They also backed a change to clause 65 so as to allow judges to grant leave where “appropriate” to pursue a JR without details of how the case was being financed.
However, they rejected Lord Pannick’s bid to reinstate the previous change to clause 67 in favour of judicial discretion over granting costs orders against interveners. This came after the government reformulated the clause when it was in the House of Commons last week  so that a costs order would not be made if certain conditions were met.
The bill is currently in its ‘ping-pong’ stage where two Houses try to reconcile the conflicting versions that they passed.
However, during the hour-long debate last week, Mr Grayling had suggested to fellow Conservative MP Geoffrey Cox – who was against the government’s position – that clause 64 included an ‘exceptional circumstances’ provision that gave judges discretion.
But in a letter to Mr Cox, Mr Grayling admitted that he had “inadvertently” got this wrong, indicating that he been confused by a similar provision in clause 67.
Without apologising for the error, he said: “It is my view that the clause does have a level of judicial discretion within the ‘highly likely’ test.
“I would like to make it clear that the clause as introduced strikes an appropriate balance, and that where there is any real doubt that there could have been a substantial difference for the applicant, the court will be able to find that the threshold had not been met and can grant permission to proceed with the judicial review.”
Peers criticised Mr Grayling for this error. Lord Woolf said he had “misled” the House of Commons, adding: “It is extremely important that the one member of the lower House who has a statutory responsibility of a particular nature with regard to the rule of law and the administration of justice should have made that mistake, because he dealt very summarily and quickly with the position which was before this House in some detail.”
Conservative Lord Cormack said: “The fact is that the House of Commons made its decision having been wrongly advised and made it in a very short space of time.”
Former Conservative Lord Chancellor Lord Mackay said: “I would like to see this amendment going back to the House of Commons, not necessarily to change the result – that is a matter for the Commons – but so that the debate should proceed on a basis that is 110% correct.”
The bill will now return to the Commons.