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Guest post: judicial review at bay – playing ping pong with the Criminal Justice and Courts Bill

Judicial review has been described by Liberty as ‘a crucial tool which allows ordinary people to challenge decisions by the authorities – either because they’re unlawful, irrational, or made in the wrong way’. This tool has come under attack from the Government. In this post, I look at the House of Commons debate on 1 December when House of Lords amendments to the Criminal Justice and Courts Bill were considered.

At times, the process referred to a ‘ping pong’ (or ‘consideration of amendments’) can be rather like a showdown in a western movie. Parliament’s description of ‘Ping Pong’ states that – ‘When a bill has passed through third reading in both Houses it is returned to the first House (where it started) for any amendments made by the second House to be considered.’ A bill may go back and forth between each House until both Houses reach agreement on the exact wording of the bill.

‘Ping pong’ is the present stage of the Criminal Justice and Courts Bill. On Monday (1 December), the House of Commons in a very thinly attended debate looked at House of Lords amendments to the Bill. A particular point of serious concern is the Government’s attempt to impose further restrictions on the process of judicial review. The House of Lords put forward important amendments but the Commons has disagreed with the Lords and taken the Government’s side. It will now be for the Lords to decide if they wish to maintain their opposition to the Government’s proposals for reform.

The actual voting in the Commons belies the number who actually attended and heard the arguments. The motion was that ‘this House disagrees with Lords amendment 97’ and the House did disagree by a vote of 319 to 203. looked at 1 December debate – ‘The Night the Lib Dems gave up their last remaining principles’ and also see the article by Clive Coleman at ‘BBC Judicial review reform: An attack on our legal rights.’

It was plain from his very language that the Justice Secretary finds the process of judicial review exceptionally irritating.

‘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 ……’

And later he said: ‘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, and that is what we are working to do.’

Particularly notable speeches were by Mr Frank Dobson MP and Mr Andy Slaughter MP. Mr Dobson said: ‘The right hon. Gentleman talks of technicalities, but the law is full of technicalities – that is all it is. He says that Ministers and officials are frightened of judicial review, and so they should be. The pressure on them is to comply with laws and regulations that we have passed. We are encouraging law-breaking if we let someone say: “Well, it’s okay. You can skate over that, or you can skate over this. You can get away with it. It was only a minor technicality.”‘

And Mr Slaughter said: ‘We do indeed stand on the shoulders of giants in conducting this debate. The names that graced the amendments that were made in the House of Lords included not only the former Lord Chief Justice, but other esteemed lawyers such as Lord Pannick, the Labour spokesman Lord Beecham, Lord Carlile and many other senior jurists. Indeed, the President of the Supreme Court and the Master of the Rolls have also spoken out in clear and emphatic terms to say that the Government proposals are not just folly, but dangerous steps to take. I am amazed that any Lord Chancellor – even this one – would ignore those protestations.’

Later, he added: ‘It is not wrong to see this concerted attack on judicial review as being of a piece with other reductions in access to justice that this Government have advanced, such as on legal aid, on no win, no fee, and on court and tribunal fees. However, judicial review seems to receive particular opprobrium from this Lord Chancellor. That is strange in many ways. Judicial review is already a remedy of last resort and already includes a permission stage. Its accessibility has been limited by the changes to the rules on legal aid for judicial review and the shortened time limits for applying. Indeed, Lord Justice Jackson, some of whose recommendations on costs and civil claims the Government have grabbed on to, advised that it was already very difficult for the ordinary citizen to apply for judicial review for want of funds and expert knowledge, and that we should look at broadening the basis for bringing a judicial review claim.

‘The attack on judicial review should be of concern to us all. It is a remedy that can protect the rights of very vulnerable individuals, such as young prisoners and dementia sufferers; that can save whole communities from wrongful decisions by the state; and that can establish the law on important points of policy, often with the help of expert bodies that intervene to assist the court on a point of general principle.’

The law blogger ObiterJ writes at Law and Lawyers. Click here to follow on Twitter.