Criminal Justice and Courts Bill – Third Reading Debate

The Criminal Justice and Courts Bill had its Third Reading in the House of Commons yesterday. Ultimately, the Bill will bring in a number of measures to make our justice system fairer and more robust, reforming the current framework to better protect the public and help reduce reoffending. It is a Bill I successfully tabled amendments to on planning issues in May, and I was also very pleased to be one of the Members serving on its Committee.

Whilst I was keen to point out that the planning provisions included in the Bill had come as welcome news both to those in the legal and planning professions – essentially rationalising the planning process and speeding up the process of development – I also wanted to use the debate as an opportunity to discuss judicial review.

Time and time again in my experience as a criminal barrister, local councillor and Local Government Minister, I have seen cases where judicial review has acted as an inhibitor to good decision making. Judicial review is extremely important as it allows people to hold public bodies to account over the decisions they make, however I believe in its current form, it has created a culture in which decisions are always made with an eye over the shoulder. As I pointed out, local authorities around the country are burdened with the knowledge that any decision they make will, in all likelihood, be liable to review.

We need a system whereby judicial review upholds the checks and balances it currently ensures take place, but does not prevent decision makers from seeking out imaginative and radical choices. The proposals set out in the Bill will, I believe, achieve this.

You can read the full transcript of my contribution to the debate below:

http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140617/debtext/140617-0001.htm#14061754000151

Robert Neill (Bromley and Chislehurst) (Con): I thank the Minister for the constructive way in which he has engaged with me and others on the planning amendments. I welcome the stance that the Government have taken on these matters and I know that welcome is shared by the legal profession and planning professionals. The Minister is right to say that these are not necessarily the most headline catching of measures in the Bill, but they are important and valuable because they are consistent with the approach that the Government have adopted—in this instance, also supported by the Opposition, I am glad to say—towards the rationalisation of the planning process and the speeding up of the process of development.

These measures are significant, because a successful and smooth planning process, including the judicial element of potential challenges, is critical, not only to the legal process but to environmental protection and the economy. One of the problems that has been encountered in the past is that some of the duplications and delays in the system were a disincentive to bringing forward the sort of development that we all want to see. This is an opportunity to rationalise the process, and I am glad that the Government have taken it.

I also thank the hon. Member for Hammersmith (Mr Slaughter) for his approach in Committee, as well as the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Grantham and Stamford (Nick Boles). I also thank officials in the Ministry of Justice and the Department for Communities and Local Government—some of whom are in earshot—who took my Lazarus-like reappearance on the scene of planning law in good grace and engaged most constructively with me. I also want to thank Richard Harwood QC and other members of the planning and environment Bar who did a lot of work in the drafting of the detail of the amendments.

My hon. Friend the Minister has given me the bulk of the cherry that I asked for in Committee, but the Government have not been able to make progress on a couple of issues. I invite him to be mindful of the need to keep a careful eye on the operation of the planning court, because some matters may be picked up through the civil procedure rules and may provide a constructive means of taking forward further reforms.

Mr John Redwood (Wokingham) (Con): Before my hon. Friend’s fascinating speech terminates too soon, I wonder how much difference he thinks the proposals will make to smoothing planning processes and getting sensible development under way.

1.15 pm

Robert Neill: My right hon. Friend takes a particular interest in these matters, and we are ad idem—as lawyers would say—on the subject. I think we can achieve a significant saving in time. For example, it will no longer be necessary to bring parallel applications for judicial review and costs, and that will save time and costs, because it is clearly a disincentive to have to bring two separate sets of legal proceedings. Even if they are later consolidated for the purpose of the hearing, costs are involved.

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My right hon. Friend makes the important point that there will be a saving in terms of costs to the litigants—the potential proponent of a scheme and those who might have cause to object—and a hidden opportunity-cost saving to the Courts and Tribunals Service. Even if the hearings are ultimately consolidated, there is an administrative burden on the courts in processing the parallel matters. Significant sums—reckoned to be in the millions of pounds—can be saved. That may not seem like a massive amount in the overall scheme of things, but it will be valuable.

I also hope that the proposals will help to change the culture. That is an important point that my right hon. Friend and I have talked about in the past. Litigants in planning matters will be encouraged to resolve matters at the earliest possible opportunity and bring forward cases that have been sensibly brought together.

The setting up of the planning court has been warmly welcomed by the profession, but it has one concern that my hon. Friend the Minister might take back to the Lord Chancellor—and, through him, to the Lord Chief Justice—about the supply of judicial material, if I may put it that way, for the courts. There are a limited number of experienced judges and deputy judges in planning work. Now that we have this new, improved and streamlined structure, it is important that we have sufficient judicial personnel to man the court to carry out the process adequately. It is a rarefied and specialist sphere, although I regret to say that it is not one that I practised at the Bar—probably to my disbenefit, and certainly to the disbenefit of my bank manager. The pupillage in criminal chambers came through before the pupillage in planning chambers that I had also applied for, so I ended up in the same boat as the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright)—as a criminal practitioner.

One further point on planning may be a deliberate or passing omission. I wish to check with the Minister whether he intends to look, in due course, at the time frame for proceedings under section 113 of the Planning and Compulsory Purchase Act 2004. It would seem logical to try to deal with those matters at the same time, and I hope that it will be possible. That does not appear in the new clause and schedule, which encompass most of the other matters, but perhaps it can be considered in the other place. It relates generally to development plan challenges, which we have not discussed, and I accept that it would raise broader issues, but it may be appropriate to return to the subject at a future point.

The unanimity across the House on planning matters may end when we come to the issue of judicial review. I am afraid that I cannot accept the overblown and overstated arguments made by the Opposition spokesman on that issue. Of course judicial review is important, but it is worth putting it into context. Before I unwisely took the criminal pupillage instead of the planning pupillage, I was a young law student at the London School of Economics in the days of the great John Griffith, who was professor of public law. Judicial review was a virtually unheard-of concept. Although the prerogative orders of mandamus and certiorari go back to the common law, judicial review was scarcely ever used.

It is interesting, and ironic given the stance taken by the Labour party, that the growth of judicial review in its modern form is sometimes dated to the judicial

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activism of the late Lord Denning at the tail end of the Wilson Government in the ’70s. It was a Labour Attorney-General, the late Sam Silkin, to whom Lord Denning addressed the famous words:

“Be you never so high, the law is above you.”

There were legitimate grounds for extending the jurisdiction. It is ironic, therefore, that the Labour party now seeks to pose itself as the proponent and supporter of unrestricted judicial review. That was certainly not the view of the Labour Government in the 1970s.

None the less, things have moved on. Judicial review is essentially an issue of proportion. I very much doubt that Lord Denning envisaged the concept of judicial review developing from the way he had in mind in that very famous case. There is a real concern—I have seen it as a lawyer, in my time as Local Government Minister and, before that, as a local councillor—that the growth of judicial review has become an inhibitor to good decision making, rather than, as suggested by the hon. Member for Hammersmith, being a tool to ensure good decision making. I suggest that the reverse has been the case. A number of examples of that can be given.

Let me start at the decision-making level within Government and local authorities. The growth of judicial review has encouraged a culture of risk-aversion in decision taking. All too often, good and honest civil servants and local government officers are restricted in taking what can sometimes be bold courses of action. Ministers can sometimes be counselled against taking bold and radical action because of the risk of judicial review. That harms the governmental process, rather than improving it.

Mr Slaughter: I am enjoying all the autobiographical stuff, but I would love to hear why the hon. Gentleman thinks that a remedy that promotes good decision making and careful consideration by civil servants is a bad thing. Should we be having civil servants taking risky and outlandish decisions because they know that they can no longer be challenged? That seems to be what the Bill proposes.

Robert Neill: I am sorry to say—perhaps not for the first time—gently, and with the affection of one legal professional to another, that the hon. Gentleman rather misses the point. We all want good decision making and nobody is saying that there is not a role for judicial review. When I listen to some of the rhetoric from the Labour Benches, I am tempted to think that my right hon. Friend the Lord Chancellor is proposing to abolish judicial review. No such thing is proposed and it is nonsense to say so. But there has been a significant degree of mission creep, to use a popular term, in judicial review. It is reasonable to say that that now needs to be rolled back. That is what the Bill seeks to do.

Julie Hilling (Bolton West) (Lab): Does not the hon. Gentleman agree that the real risk here is that those people who are least able to access justice—people with the least means to pay for advice—are the most likely to be squeezed? I hope later to give examples of where judicial review has really helped the little people. The problem with these clauses is that we risk giving ordinary people less access to justice.

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Robert Neill: I cannot say that that has been my experience. If we were removing the process of judicial review and challenge, that would be a legitimate criticism. But we are not. To change a threshold around, for example, the “highly likely” test does not exclude a deserving case from seeking remedy. To deal with the issue of interveners does not remove a deserving case from the prospect of remedy through judicial review. If it imposes a degree of discipline in the thinking behind the bringing of such challenges, that is a good thing and we should not apologise for it.

Julie Hilling: But the issue is who will pay for the interveners for those people who have least access to finance and justice. Interveners will be allowed but who will foot the bill for people who do not have the means to pay?

Robert Neill: With respect to the hon. Lady, it is seldom persons in that category who are the interveners; they are much more likely to be the bringers of the review. I will come to the role of interveners in a moment, but let me finish the point about the way in which there has been mission creep in judicial review and the sometimes damaging effect that that has on the decision-making process.

The situation is a little like what we found with local government finance at one time, when officials tended to play tick the box so that someone qualified for the right number of grants. There is an element of that sometimes in the decision-making process, where decisions are always taken with an eye over the shoulder at the risk of judicial review rather than getting to the merits of the matter. If these clauses help, as I think they will, to move away from that culture, that is a good thing, as it will then encourage imaginative and radical, but always fact-based, decision making. It will always have to be fact-based because, after all, the Wednesbury reasonableness test is unchanged; it remains in any event. There will always be scope for challenge of irrational decisions, or of decisions that are genuinely not based on evidence. But removing the threat of judicial review to the extent that it now hangs over decision makers is sensible and proportionate.

James Morris (Halesowen and Rowley Regis) (Con): My hon. Friend is making a good point about the impact of the threat of judicial review on local authority decision making. It has almost become the expectation before a decision is taken that it is liable to be judicially reviewed, adding a layer of bureaucracy and a length of time to decisions that sometimes need to be taken in a more timely fashion.

Robert Neill: I am grateful to my hon. Friend, who leads me neatly on to the next point I wanted to make. It is suggested somehow that this is the state seeking to prevent challenge. Very often, those on the receiving end of unmerited judicial reviews are local authorities—democratically elected bodies who find their decision challenged by some vested interests. Very often, that vested interest is propped up by an intervener. That is why the proposed changes are legitimate and proportionate. My hon. Friend is quite right. That is an impediment not only in areas such as development and planning matters, but in relation to other forms of decision making such as housing and other types of policy.

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Sarah Champion: Does the hon. Gentleman agree that good and honourable local authority people sometimes get it wrong and that having relatively straightforward access to judicial review is a good thing?

Robert Neill: I am not sure whether you would agree, Mr Speaker. I take the hon. Lady’s point, but I do not think that she follows it through logically. It comes back to this: the basic tests of Wednesbury reasonableness remain. The opportunity for judicial review remains and putting some balance or check in the process to say, “Before you intervene, you have to consider the costs” is not unreasonable.

Any decision maker can, of course, get things wrong, which is why we have judicial review. That remains. But equally, it is not unreasonable to say that when a challenge is brought, those who litigate ought to bear in mind the costs of their doing so. I understand the hon. Lady’s points, which she made eloquently in Committee. I have some sympathy with her, but the Bill does not do what she believes it does. I do not believe it undermines the scope for meritorious judicial review. It is not in the interests of anyone that the courts be clogged up with unmeritorious judicial review cases. There is no doubt that there have been a number of those.

On local government, let me suggest two instances of such cases. It is suggested that those who bring judicial review are often the aggrieved small people. That is not always so. When I was a Minister at the Department for Communities and Local Government, my right hon. Friend the Secretary of State and I suffered at the hands of CALA Homes in a very famous judicial review decision when we were attempting to carry out the will of the House and, clearly, of the electorate and remove the regional spatial strategies, which were discredited. A judicial review was brought against the Secretary of State and against the democratically elected planning authority, Winchester city council, which had gone through the process of standing up for their residents who did not wish to have a particular piece of land developed. What happened was that judicial review was used by, in effect, a predatory developer. There are many cases around the country where it is the big battalions who will use judicial review against elected local authorities. Redressing the balance is fair in that instance, too.

Ian Paisley (North Antrim) (DUP): I appreciate the hon. Gentleman’s giving way on this point. In Northern Ireland, we have the ludicrous situation whereby one Minister, namely the Attorney-General for Northern Ireland, will take on other Departments to prevent them from implementing decisions that have been taken democratically. Does he agree that we are now in a terrible situation, whereby before a Department takes a decision, it seems to need to have lined up behind it the right person to fight the judicial review, which will inevitably come in any case once the decision is taken?

1.30 pm

Robert Neill: My hon. Friend is absolutely right. As an ex-Minister, I break no confidence in saying that when decisions are being taken, part of the advice will regularly be about the judicial review risks. Anyone who serves in an English local authority will know that part of the significant conversation nowadays is, “Okay, we

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think this is the right thing to do. How do we defend it against judicial review? We know, even though we have done the right thing, consistent with our democratic mandates, that a judicial review will be coming.” That cannot be in the public interest.

Mr Speaker: Order. It is always a delight to enjoy the free-flowing eloquence of the hon. Gentleman as he develops his tutorial, but may I gently ask him to bear in mind that a number of others wish to speak, notably his right hon. Friend the Member for Wokingham (Mr Redwood) and the Chairman of the Joint Committee on Human Rights, the hon. Member for Aberavon (Dr Francis), and time is not limitless? Although we are savouring the hon. Gentleman’s delights, all good things must eventually come to an end.

Robert Neill: I rather suspect, Mr Speaker, that you have anticipated how my ministerial career came to an end as well, delightful though it was at the time. I am happy to draw my remarks to a close, because I know that my right hon. Friend the Member for Wokingham (Mr Redwood) has a great deal of expertise on this matter. I will also welcome the contribution of the hon. Member for Aberavon (Dr Francis), not least because his predecessor was a member of my chambers who led me on a number of cases, including some judicial review matters with which he dealt expertly. [Interruption.] I am sorry to have driven you from the Chair, Mr Speaker.

Let me conclude with these thoughts. The judicial process is important for its checks and balances. That position is not being changed by the Government’s proposals; what they are providing is a reality check on the process of judicial review. On the issue of interveners, if someone chooses to intervene in litigation, they should not do so without being aware of the costs that their intervention can bring. That is what we are seeking to do. It is often the intervener, rather than the initial parties, who takes up the bulk of the time in the case. It is logical for someone who seeks to intervene in a case—no one is obliged to do so, after all—to face the discipline of the potential costs.

Heather Wheeler (South Derbyshire) (Con): My hon. Friend is making an important point. When constituents write to me about planning inquiries and the like, they want to know the true cost, because ultimately, one way or the other, the taxpayer is paying for all this. The facts must be clearly put out there. I thank my hon. Friend for the argument he is proposing.

Robert Neill: I am grateful, and that provides a suitable point for me to conclude. The costs apply not just to individual litigants and therefore to companies and local authorities, because the cost to a local authority is ultimately a cost to the taxpayer, and then there is the opportunity cost to the planning system and the court system that comes from bringing needless judicial reviews. There is nothing in the Bill to prevent a meritorious claim from coming forward and being heard, but it provides some checks and balances in the matter—a reminder that the common law does not exist independently of the House. Ultimately, accountability lies here through Parliament. The judiciary has an important role to play in interpreting the will of Parliament.

Occasionally, I look at judgments in judicial review cases and gain the impression that one or two of the senior judiciary have rather concluded that the common law somehow exists in isolation. The development of case law is important, as suggested, but it should happen within the framework set by this democratically accountable House. We need to redress the balance to ensure that while the House is accountable, a democratically elected local authority is the right primary accountable body in its sphere of competence. I thus commend both the planning and the judicial review provisions.