Criminal Justice and Courts Bill
Public Bill Committee, 13 March 2014.
Examination of Witnesses
David Crausby (Labour, Bolton North East)
Could the witnesses please introduce themselves for the record?
Andrew Slaughter (Labour, Hammersmith)
May I ask you a fairly open question? Most of the briefings from your three organisations have concerned part 4 of the Bill. Could you summarise what your concerns are, both individually about the clauses in part 4 and compositely in terms of the impact that the measures will have on judicial review as a remedy? Could you also explain how that relates to other aspects of changes that are not in the Bill but which are connected to it, such as the effect on legal aid?
Andrew Slaughter (Labour, Hammersmith)
You refer to some of the evidence we heard on Tuesday. Several points were put to the witnesses: the first was that what is in the Bill is not of great consequence. If proposals, such as those on standing and to restrict types of applicant, have been dropped, and other proposals arising out of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 changes to legal aid are outside the compass of the Bill, then what we have here are some pretty technical or minor changes to adjust the balance slightly. Would you agree with that?
Andrew Slaughter (Labour, Hammersmith)
You talked about the constitutional implications. In practical terms, yours are organisations that are regularly involved in judicial review processes. Is this going to make a major or minor change on a day-to-day, week-to-week basis to the way that you function? How do you see that, by reference either to individual cases or to work load?
Andrew Slaughter (Labour, Hammersmith)
Just on that specific point, you mentioned exceptional circumstances. Are you saying that that does not give you sufficient comfort that, in appropriate cases, the judge would order that the normal rules in relation to interveners do not apply?
Andrew Slaughter (Labour, Hammersmith)
That would be helpful.
Andrew Slaughter (Labour, Hammersmith)
Final question. It is put against that that the Executive, with the consent of Parliament, has the right to change the rules governing judicial review, not least because public money may be involved. It is also pointed out that the numbers of judicial reviews have increased, particularly over the past 10 years. What would you say to that?
David Crausby (Labour, Bolton North East)
We are halfway through, and we have only had one questioner. I have two more people indicating that they want to ask questions, so we need to speed up the questions and answers a little bit.
Valerie Vaz (Labour, Walsall South)
All of you, as practitioners of judicial review, have attended cases and you know the grounds for judicial review: illegality, unreasonableness or breaches of procedural rules. How important do you think those grounds for judicial review, and cases on judicial review, are for the rule of law?
Mike Kane (Labour, Wythenshawe and Sale East)
I have not.
Valerie Vaz (Labour, Walsall South)
So you are saying that the judges are now getting involved in looking at the merits of the case, which they should not be doing and have never done?
David Crausby (Labour, Bolton North East)
Order. We have less than 20 minutes left. I have three people indicating that they want to ask questions. I think I will have to limit Members to no more than two questions, and I ask the witnesses to be brief in their answers.
Valerie Vaz (Labour, Walsall South)
Okay. Can we just move on slightly? Could each of you just pick out some cases where there have been matters of public importance and public policy has changed? Could you also, just for the record, say—I know some of you have been out of practice—how long these commission hearings take and how long actual cases take? I know what my experience is: sometimes commercial hearings are very short, sometimes 15 minutes. We are not talking about huge lengthy cases that take up lots of court time. Could you just focus on the kind of cases that you have brought that affect public policy that you may not be able to bring in future?
Valerie Vaz (Labour, Walsall South)
Thank you.
Valerie Vaz (Labour, Walsall South)
You could write in.
Valerie Vaz (Labour, Walsall South)
Thank you very much.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Good morning. I just want to get a bit of clarity about one of the examples you gave. If a public official had acted unlawfully—I think you suggested taking a bribe, or whatever—would that not be a criminal matter, so it would be referred to the police for investigation? It would not necessarily require a judicial review to sort that issue out.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
But you raised it as an example.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Right. Okay. I think I follow some of that. To return to the issue of cost and not intervening because of financial exposure, does that mean you think that there should be an unlimited call on the public purse in such matters? Is there no limit to what we could spend?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Will it not still be the case that they will ask you for a limited amount of input? You will therefore know what your financial exposure is and be able to calculate it.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
But who should pay that cost?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
But presumably the parties you are intervening on will bear that cost, and it could be that they cannot afford it.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
One final question: why do you think there has been a threefold increase in the number of JRs in the past 12 years? Presumably, that has cost implications as well. Has the gatekeeper worked?
Mike Kane (Labour, Wythenshawe and Sale East)
In 1485 Richard III, who was the last English king to die in battle, fell at the field of Bosworth, defeated by Henry Tudor and the Stanley brothers. Being from my side of the Pennines, I was delighted at the outcome. His remains were found in a car park in Leicester not so long ago, and they were dug up, examined and eventually interred in Leicester cathedral by Leicester university.
David Evennett (Conservative, Bexleyheath and Crayford)
Not yet.
Mike Kane (Labour, Wythenshawe and Sale East)
Near enough. The Plantagenet Alliance has taken out a judicial review to look into Leicester university’s claim that it had the power to do that. Do you not think that that is a colossal waste of taxpayers’ money and an abuse of the judicial review system?
Mike Kane (Labour, Wythenshawe and Sale East)
That is just between me and my hon. Friend the hon. Member for Barnsley Central.
David Evennett (Conservative, Bexleyheath and Crayford)
Do you think it is a misuse?
Bob Neill (Conservative, Bromley and Chislehurst)
A lawyerly response.
Angie Bray (Conservative, Ealing Central and Acton)
You seem to have a view on every other thing. This would be something that it would be interesting to have a view on.
David Crausby (Labour, Bolton North East)
At this point I am going to bring in Dan Jarvis from Barnsley.
Dan Jarvis (Labour, Barnsley Central)
My question is for Ms Patrick, but I would be interested to hear if other members of the panel have a view. I would like to take you to part 2 of the Bill, the part that deals with restraint. You will know that the Bill includes the power to use reasonable force under certain circumstances. When do you think force can or should be used? Do you think that should include enforcing good order and discipline in the secure college?
Dan Jarvis (Labour, Barnsley Central)
Okay, thank you.
Dan Jarvis (Labour, Barnsley Central)
I have one very quick question about electronic monitoring. Does anybody have a general view on the parts of the Bill that relate to electronic monitoring?
David Crausby (Labour, Bolton North East)
Order. I am afraid that brings us to the end of the time allotted to ask questions of these witnesses. May I thank them on behalf of the Committee for their evidence this morning?
David Crausby (Labour, Bolton North East)
Could the witnesses introduce themselves for the record?
Dan Jarvis (Labour, Barnsley Central)
Do you think there are examples of sexually violent material that would not be captured by the Bill as drafted?
Dan Jarvis (Labour, Barnsley Central)
Do you think there would be merit in explicitly referring in the Bill to those extreme types of pornography?
Sarah Champion (Labour, Rotherham)
Mr Austin, you mentioned as a throwaway that child abuse and child grooming were covered under other legislation. Could you expand a little on that? Is it strong enough as it stands?
Sarah Champion (Labour, Rotherham)
But are animated or real films of child abuse and child grooming covered under current legislation?
David Crausby (Labour, Bolton North East)
As there are no further questions from Members, on behalf of the Committee I thank the witnesses for their evidence.
David Crausby (Labour, Bolton North East)
Could the witnesses please introduce themselves for the record?
Andrew Slaughter (Labour, Hammersmith)
I shall ask Mr Westgate a question, and if there is time at the end, I have a question for Mr Lithman. Mr Westgate, you provided a very helpful note dealing with part 4 of the Bill clause by clause. It has been suggested to previous witnesses dealing with this part that the changes in part 4 will not have, individually or cumulatively, a substantive or, rather, a substantial effect on the way that judicial review currently operates. Do you agree with that? That is either because the main changes initially proposed, such as that on standing can be withdrawn, or because those that have a substantial effect, such as the changes in relation to legal aid availability are without the Bill. Do you think the clauses in the Bill will change the character of the way that judicial review actions are pursued?
Andrew Slaughter (Labour, Hammersmith)
Reasons for pursuing the course of action in part 4 have been given variously as that judicial review is used in a partisan political way at the moment to support particular political causes rather than to remedy defects, that it is a remedy that is out of control because of an explosion in numbers and that it is perfectly proper to adopt these steps when the Government are looking to control public spending. Do you have any comment on those arguments?
Andrew Slaughter (Labour, Hammersmith)
But is it too easy to bring a judicial review at present? You say it can be caught at the permission stage. While it is possible to get legal aid for the permission stage, clearly there are changes to be made to that regime as well. Something else said by the Government is that it is simply too easy to start, even if it may not get to a full review, either to introduce delaying tactics or simply to make a point. Is that your experience?
Bob Neill (Conservative, Bromley and Chislehurst)
I understand the point that you are making. Equally, I am sure you can see that, even in coming to the permission stage, the fact of launching the application to intervene is potentially going to put the other parties to some costs. Is it unreasonable to say, “Even at the stage that you think of bringing an intervention, you should think about the potential financial implications for the public purse of doing that.”? It may be done for good reasons, but you should have that in your mind.
Bob Neill (Conservative, Bromley and Chislehurst)
Yes.
Bob Neill (Conservative, Bromley and Chislehurst)
If the intervention fails, is there much prospect of the public authority—say a small district council—getting their costs back?
Bob Neill (Conservative, Bromley and Chislehurst)
Save for exceptional circumstances.
Bob Neill (Conservative, Bromley and Chislehurst)
That would depend on the interpretation of other people.
Bob Neill (Conservative, Bromley and Chislehurst)
In the same way that it is important that there should be a discipline on decision makers to get things right, surely there should always be under any circumstances a discipline upon any potential litigator, whatever their cause or reason, to bear in mind the financial consequences of bringing litigation.
Bob Neill (Conservative, Bromley and Chislehurst)
Is this really the most efficient way of clarifying issues of law around this sort of thing?
Bob Neill (Conservative, Bromley and Chislehurst)
It can mean that—I will take the example again—a small local authority that has acted in good faith in its own particular circumstance is suddenly dragged into a much larger case because of an intervention. Should not there be some protection from that?
Bob Neill (Conservative, Bromley and Chislehurst)
But they will not get their costs back in resisting it.
Bob Neill (Conservative, Bromley and Chislehurst)
Can I just ask Mr Lithman two very short questions? Nice to see you, Mr Lithman. I should have said, as I did yesterday, that I declare an interest as a non-practising member of the Bar. I want to get a sense of the CBA’s point of view on trial by single justice. Is it a particular issue for the CBA? You and I can probably remember our very early days, reading out section 9 statements for a summary only, non-imprisonable case where nobody had turned up to a bench of three. That does not seem a very useful occupation of time. Does the CBA have a problem with that?
Bob Neill (Conservative, Bromley and Chislehurst)
It is just a matter of how we get it done.
Bob Neill (Conservative, Bromley and Chislehurst)
What are the CBA’s main issues with the Bill?
Bob Neill (Conservative, Bromley and Chislehurst)
I get the sense that it is not so much the principle that in a very serious case it is appropriate, but where you go, as a matter of fact, and the degree of it.
Bob Neill (Conservative, Bromley and Chislehurst)
I understand that. Equally, there is the problem that when Parliament sets the framework—judges also bear this in mind—it has to think about public confidence in the appropriate sentence, as well as what a judge might think professionally about the sentence.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Good afternoon. I want to explore the criminal courts charge aspect of the Bill, if I may. The charge will be amended, depending on a number of factors, such as pleading guilty early or not. Do you think the criminal courts charge will deter offenders from pleading not guilty or pursuing an appeal?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Yes, as part of the Bill.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Okay, so you would like to see it removed from the Bill?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
You do not think it is right that people bear some of the cost?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
And in non-custodial sentences?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Because it will change the way justice is administered or because you think it does not have a part?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Your concern is that it would distort the way people behave.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Is that your view as well, Mr Westgate?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Why should it not be a part? If it does not change the way people behave, but could add a financial contribution to the cost of running the courts, why would that be a bad thing?
David Crausby (Labour, Bolton North East)
A quick question from Andy Slaughter, if he can give me time to go to Angie Bray.
Andrew Slaughter (Labour, Hammersmith)
Do you have any observations on the provisions in part 3 in relation to juries? We were told by the Law Commission that it had some concerns about the idea of prohibited conduct by jurors in relation to its being a specific criminal offence, but it is unspecified as to what it may involve. While you think about that, Mr Lithman, I have a question for Mr Westgate. It might be something that you need to write to us about.
You have given us a full account of most of the clauses. In relation to clause 56, where it appears that environmental cases are exempt from the new regimes—because, presumably, of Aarhus—it says in the explanatory notes to the Bill that this may not affect all environmental cases. I am not sure what that means, to be honest. I do not know whether you know what that means. You may want to think about it.
Angie Bray (Conservative, Ealing Central and Acton)
What concerns do you or your colleagues have about the potential impact of the use of the internet and social media in court proceedings, particularly where jurors have perhaps been using them? There are measures in the Bill to deal with that. Do you have any views on that?
David Crausby (Labour, Bolton North East)
Order. I am afraid that that brings us to the end of the time allotted to ask questions of these witnesses. May I take this opportunity to thank them, on behalf of the Committee, for their evidence?
Bob Neill (Conservative, Bromley and Chislehurst)
On a point of order, Mr Crausby. Given that the witnesses may have further things to say, perhaps they might be reminded that they can submit written evidence if they want to elaborate on what they have said.
David Crausby (Labour, Bolton North East)
Thank you very much.
David Crausby (Labour, Bolton North East)
Will the witness please introduce herself for the record?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Good afternoon. One of the provisions in the Bill is to increase the upper age limit for jury service to 75. Can you tell us your views on that?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Do you think that 75 is the right level?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Could you explain why it will be such a small proportion?
Sarah Champion (Labour, Rotherham)
You mentioned that you have concerns about jurors and electronic devices. Could you expand a little on those?
Sarah Champion (Labour, Rotherham)
It sounds like a practical issue that is not insurmountable. Do the risks associated with jurors using social media devices not outweigh finding the money to put in safes?
Sarah Champion (Labour, Rotherham)
Are your concerns strong enough that we ought to take this provision out of the Bill, or are there ways that we can make the Bill stronger to overcome those logistical problems?
Angie Bray (Conservative, Ealing Central and Acton)
Ultimately, the most important and sacrosanct principle must be the delivery of fair justice. We cannot allow an issue like the provision of a cupboard to get in the way of that, can we?
Angie Bray (Conservative, Ealing Central and Acton)
I assume from what you said that, were we to get the lockable cupboard with the key provided, you would not have any further objections to the principle of what is proposed.
Angie Bray (Conservative, Ealing Central and Acton)
Can I ask you about the slightly wider issue of juror research during the period of a trial? There is a new measure in the Bill about that. What are your views on that? How seriously do you view the dangers of juror research during a trial?
Angie Bray (Conservative, Ealing Central and Acton)
There have been one or two well-known cases that have found their way into the media.
Angie Bray (Conservative, Ealing Central and Acton)
2% to 5% could be significant.
Angie Bray (Conservative, Ealing Central and Acton)
So you do not think that the new offence is required.
Angie Bray (Conservative, Ealing Central and Acton)
What further measures would help to eliminate the problem?
Andrew Slaughter (Labour, Hammersmith)
Professor Thomas, you mentioned your concerns about clause 44, which you described as a catch-all. Do you think it is an unnecessary clause, or do you think that there is an issue that needs to be addressed, but that there is a better way of doing so?
Andrew Slaughter (Labour, Hammersmith)
Given that we are going to have a raft of new criminal offences, some of which are not completely clear, what sort of additional education or training would you like to see for jurors so that things are a little clearer for them? What research would you like to see that would show how well the provisions are being understood?
Andrew Slaughter (Labour, Hammersmith)
You have done extensive research with jurors over the years. Do you find that you are in any way hampered by the restrictions on discussions outside the jury room? If you are not, do you think that, in any event, there should be further extensions to allow that to take place?
Andrew Slaughter (Labour, Hammersmith)
That is very interesting, because from time to time—not necessarily in the context of the Bill—the fact that we do not know how jury decisions are made comes up, and it is suggested that we ought to know more. You think, however, that, in so far as it is a legitimate inquiry, it is currently possible.
David Crausby (Labour, Bolton North East)
If there are no further questions, will move on to the next panel of witnesses. Professor Thomas, thank you for your evidence.
David Crausby (Labour, Bolton North East)
We have until 4 pm for this panel. Could the witnesses please introduce themselves for the record?
Valerie Vaz (Labour, Walsall South)
Thank you all for coming to give evidence today. I suppose what I would like to hear from each one of you is, briefly, your views on the judicial review aspects of the Bill. Shall we start with Mr Wagner?
Valerie Vaz (Labour, Walsall South)
To follow up, may I go through the panel again? Mr Fordham, you touched on the effect on the rule of law and the administration of justice. In the opinion of each of you, what effect do you think the clauses will have on the rule of law and holding the Executive to account, bearing in mind that judges have to be independent of the Executive process? Also, will the clauses save any costs?
David Crausby (Labour, Bolton North East)
If you do not mind, Ms Vaz, I think we should move on. If there is time, we will come back round.
Valerie Vaz (Labour, Walsall South)
Could we just let Mr Armstrong deal with the point?
Bob Neill (Conservative, Bromley and Chislehurst)
Is there not a problem fundamental to your argument? You talk about a constitutional provocation, but ignore the fact that, in reality, there can be no such thing in this country. The arbiter of the rule of law is not the courts and not the Government; it is Parliament. If Parliament decides that the balance should be different, that is the rule of law, surely.
Bob Neill (Conservative, Bromley and Chislehurst)
Is not the danger of that precisely that the judges thereby arrogate to themselves decisions which ought ultimately to be accountable to the electorate?
Bob Neill (Conservative, Bromley and Chislehurst)
I get the sense, as I said to Mr Lavender, that this is a case of “Get your tanks of our lawn.”
Bob Neill (Conservative, Bromley and Chislehurst)
This is a political point by political activists.
Bob Neill (Conservative, Bromley and Chislehurst)
So let me make this final point. Parliament must ultimately be the guardian of the public purse and there is a cost to all of these proceedings. Is it not legitimate therefore to say, for example, not that you cannot intervene in a case, but that if you do so you should have regard to the potential risk that you, as an intervener, whatever your motives, run of bearing the financial responsibility of that intervention?
Bob Neill (Conservative, Bromley and Chislehurst)
Miss Mackintosh, you talked about some of the instances of your cases. I understand that. Then again, forgive my saying so, but I get the sense that, whatever the individual circumstance—and there will always be circumstances where there must be some protection against the outworking of any policy or decision on individuals—often what underpins the bringing in of these challenges, although it is not party political, it has a political motivation. When somebody is opposed to cuts in local authority provision it is very convenient sometimes to use that as a vehicle to make that political point. That is not a proper use of the courts, is it?
Bob Neill (Conservative, Bromley and Chislehurst)
It certainly should not be, no.
Bob Neill (Conservative, Bromley and Chislehurst)
We can think of cases where someone objects to a major issue of public policy—they might not like High Speed 2, nuclear power, fracking, or something of that kind. Judicial reviews may be brought in the name of individuals, who might be involved, but essentially underpinning that is the backing of campaign organisations. Would that not therefore be a political argument, rather than a legal one?
Bob Neill (Conservative, Bromley and Chislehurst)
Perhaps it is with a small p. I am just wondering whether the danger of judicial actions is that the courts are brought into what are essentially small p political decisions.
Bob Neill (Conservative, Bromley and Chislehurst)
I would simply suggest to you that perhaps out of strong feeling for your clients, you overstate the potential effects of the reforms. Is it not just a redressing of the balance, essentially?
Bob Neill (Conservative, Bromley and Chislehurst)
It seems to me that, ultimately, you are setting up the courts as the policemen of the behaviour of public authorities. Is that really their role? I agree with your proposition, Mr Armstrong, that the best and cheapest decision is the right one, but is it not better to invest at the front line rather than accruing the costs of going through lengthy judicial processes to achieve the same result?
Bob Neill (Conservative, Bromley and Chislehurst)
That is a jaundiced view of public servants, but I will leave it there.
Andrew Slaughter (Labour, Hammersmith)
It would be very useful if you sent us the Bingham Centre report. I will not ask you to address it now; it is perhaps better if we simply read it.
Taking Mr Armstrong’s point, as some of us may have done, on the forward looking aspect of judicial review, which will be hobbled by clause 50, could I question Miss Macintosh? You said that this would have a prohibitive effect on your clients, but you were talking from the perspective of the individual client. Were you principally thinking of what is not in the Bill—the restrictions on legal aid availability—and if not, how would you say the provisions in the Bill are going to make your job more difficult, or your clients’ receiving justice more difficult?
Andrew Slaughter (Labour, Hammersmith)
I do not want to put words into your mouth, but your description of how judicial review works at the moment suggests that it has evolved over time and been crafted by the senior judiciary to suit a particular purpose, but the comments you have heard from Government Members make it clear that there is unhappiness with that and a belief, rightly or wrongly, that there are politically motivated cases. Other than in relation to the clauses in the Bill, which I think you have already dealt with, can you think of changes that could be made to the way judicial review operates, either to ensure that there is no political ambit to it or, taking Mr Wagner’s point, to look at the conduct of defendants as well as applicants?
Andrew Slaughter (Labour, Hammersmith)
Perhaps I did not explain before that I am not supporting this. In fact, I think that it is nonsense that there is a political element here, but since the Government rely quite strongly on that rather than on the evidence base, either they are being mischievous—they are saying that knowing it not to be true—or they genuinely believe that a substantive part of judicial reviews are motivated by political motives rather than genuine motives. Is there any way that you can reassure them on that, or respond to that?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Can I just pick up on that? Help me to understand why it will drive all those people out. I know you have said that already and expressed it, but just for me again, explain why it is that, where someone has what you would deem to be a legitimate case for judicial review, you would not then take it forward on their behalf. That is why I am struggling. Why would these proposals change that test for you?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Ms Mackintosh talked about how this comes up front. Could you explain that to me? I am not from a legal background and I need to understand more of this.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
I understand and no one objects to that. I am still failing to see how the changes to the judicial review arrangements affect you doing that. Presumably you are doing that at the moment, preparing all that work.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
But that is a different piece of legislation, is it not? That is to do with the legal aid legislation. I can see the link.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
But at some point, you have to do some up-front work, because you have to assess whether there is a case. You have to ascertain whether you genuinely think that that local authority has made the wrong decision, and therefore you have to do some work before you can advise your client as to whether they have a case.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
So how does this change that? Is it just that the threshold moves to the point where you have to be more confident than you do now that you are going to make some progress and that the case is worth testing? Perhaps you would have taken a case that you did not have 100% confidence in to test it through the courts, but the changes will make you think a little more carefully about how much progress you are going to make.
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
But were this to remain unchanged and go through, do you not think that you would get used to that sense of what is accepted by the courts and what is not, in terms of whether the outcome would have been different? Is it not just a question of getting used to the new framework?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
In cases that you wanted to pursue to JR, how many times have you been denied taking them further by the courts?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Well, you specifically, because we are having a conversation. Is it a 50:50 chance? When you think there is case, do you get them accepted 50% of the time and 50% not, or is the threshold much higher?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
I suppose what I mean is, in every 100 cases that you take on, how many of those actually get to judicial review?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Do you think that the percentage of cases settling before—some 95%—would change because of the proposals?
Stephen Metcalfe (Conservative, South Basildon and East Thurrock)
Okay. Final question: if you were advising us, bearing in mind that we want to streamline the system, what would you advise us to do? What would you like? Would you leave the existing law unchanged, or are there some positive suggestions that you can put forward?
Valerie Vaz (Labour, Walsall South)
Some of these questions require just yes or no answers. If you were trying to persuade us to remove some clauses, which clauses would you remove?
Valerie Vaz (Labour, Walsall South)
Given the clauses we have been talking about—50 to 56—are we binding our judges?
Valerie Vaz (Labour, Walsall South)
If these clauses went through, would we be binding our judges?
Valerie Vaz (Labour, Walsall South)
Quickly, yes or no: Parliament sometimes gets legislation wrong, does it not?
Valerie Vaz (Labour, Walsall South)
So is judicial review a means of correcting that, in your view?
Andrew Slaughter (Labour, Hammersmith)
Do you have any objections to clause 51? I think we have dealt with Mr Fordham’s main concerns.
David Crausby (Labour, Bolton North East)
Order. I am afraid that that brings us to the end of the time allotted for the Committee to ask these witnesses questions. I thank them on behalf of the Committee for their evidence. We move on to the next set of witnesses.
David Crausby (Labour, Bolton North East)
Will the witnesses please introduce themselves for the record?
Bob Neill (Conservative, Bromley and Chislehurst)
I wonder if you might give us a sense to start with of your views on the impact of judicial review on major infrastructure and development projects. As I recall, there have been about 15 cases that the administrative court flagged as major infrastructure projects for 2012-13. There has been an issue as to whether the current arrangements on judicial review can cause delay costs on development and infrastructure. What is your experience on those matters?
Bob Neill (Conservative, Bromley and Chislehurst)
It is surely legitimate to have regard not just to the cost to the public purse, but to the commercial damage done to investment in major projects by delay.
Bob Neill (Conservative, Bromley and Chislehurst)
But so far the improvement is not there?
Bob Neill (Conservative, Bromley and Chislehurst)
But there is need for improvement?
Bob Neill (Conservative, Bromley and Chislehurst)
Mr Walker, what is your take on this? Your firm does a lot of infrastructure work.
Bob Neill (Conservative, Bromley and Chislehurst)
I will take yours as the practitioner.
Bob Neill (Conservative, Bromley and Chislehurst)
But 25% of the infrastructure ones seems quite a lot, does it not?
Bob Neill (Conservative, Bromley and Chislehurst)
And therefore have the most economic importance riding upon them.
Bob Neill (Conservative, Bromley and Chislehurst)
Do you have thoughts on the operation of the planning court so far and the idea of that separate planning?
Bob Neill (Conservative, Bromley and Chislehurst)
Given that we want to speed things up, perhaps it is legitimate to think, “Okay, we are making some progress, so let’s build on that and reinforce it in the provisions in the Bill.
Bob Neill (Conservative, Bromley and Chislehurst)
That makes sense. The proper court proposal is going in the right direction.
Bob Neill (Conservative, Bromley and Chislehurst)
On a separate point, perhaps I might move away from judicial review—it has been interesting to have your thoughts on that—to clause 57 of the Bill, which specifically covers the planning and deals with leave and so on. The Planning and Environmental Bar Association has suggested that it would be appropriate to give the ability to seek leave from the Court of Appeal as well as from the High Court on the basis that quite often the High Court may refuse leave and when you go to the Court of Appeal leave is given and the case is successful. That will be a potential streamlining of the system. What are your thoughts on that, or would you like to think about it?
Bob Neill (Conservative, Bromley and Chislehurst)
Exactly right. That is what I was thinking of. I do not know whether you have seen it, but some amendments that have been tabled in my name after discussion with the Planning and Environmental Bar Association seek to standardise the permission regime and time frame. Does that seem an appropriate thing to be doing?
Bob Neill (Conservative, Bromley and Chislehurst)
We are in a situation at the moment with different regimes for things like listed building proceedings, hazardous substances applications, section 287 applications, section 113 applications against development plans, and so on, and sometimes there are different times limits because the six weeks run from different points in the decision process.
Bob Neill (Conservative, Bromley and Chislehurst)
That is very helpful.
Andrew Slaughter (Labour, Hammersmith)
A point that was made by Mr Walker in the notes he sent us is that changes have already been made to try to speed up the process but have not yet bedded in, although they seem to be having an effect. There is also the issue of the planning court, which has not started yet, but the whole aim of it is to increase the speed and efficiency of the process. Mr George, I understand that your intent is that the process is not delayed unduly. If those changes are made, why do you think we need the changes in the Bill?
Andrew Slaughter (Labour, Hammersmith)
That is an argument; I do not think you answered my question. That is an argument in favour of doing things expeditiously, but still fairly, and we have talked about the planning court as being a major course of action. I am asking you specifically about the provisions in this Bill––the changes that this Bill makes to the availability of judicial review as a remedy. Why do you need those?
Andrew Slaughter (Labour, Hammersmith)
Let me help you. The main provisions here are for changing the test whereby permission is granted, for discouraging intervention by giving cost penalties and for removing protection of claimants in relation to costs. Now, it seems to me that none of those, of themselves, are going to speed matters up, which seems to be your principal objection. So what is your view on this Bill, which we are discussing today?
Andrew Slaughter (Labour, Hammersmith)
Why? The question is why?
Andrew Slaughter (Labour, Hammersmith)
With respect, it is not, is it? It is trying to restrict the availability of judicial review as a remedy, in tandem with the proposals on legal aid, particularly to those who may not be of means in bringing an action for judicial review, meritorious or not.
Andrew Slaughter (Labour, Hammersmith)
That is helpful. I will ask Mr Walker about this in a moment, but in relation to the sort of cases that you, as a developer, would be involved in, you believe that they will still be covered by the Aarhus restrictions?
Andrew Slaughter (Labour, Hammersmith)
Do you have any specific support for the provisions on interveners or on the “highly likely” test?
Andrew Slaughter (Labour, Hammersmith)
That is because it tilts the balance more in favour of developers and away from local communities that might object to development.
Andrew Slaughter (Labour, Hammersmith)
Can I ask you this, Mr Sinden? Mr George seemed to say that the system is unfair on developers at the moment, that they are the victims in this. In your written paper you pointed out, as we all know, that there is no third-party right of appeal here. Judicial review is often the only recourse that someone unhappy with a planning consent made may have in order to challenge that. Do you think the situation at the moment is too easy for prospective applicants who want to bring a judicial review on planning matters?
Andrew Slaughter (Labour, Hammersmith)
Yes.
Andrew Slaughter (Labour, Hammersmith)
Do you then think that the provisions in part 4 are just about expediting and speeding things up, or do you think they will make it more difficult for your members or those who consult you to bring actions?
Andrew Slaughter (Labour, Hammersmith)
How far do you agree with what Mr George said about being saved from the diminution of relying on PCOs in most planning cases by clause 56 and Aarhus? Are you concerned about that or do you think that, in reality, there will still be cost protection for planning and environmental cases?
Andrew Slaughter (Labour, Hammersmith)
Mr Walker, you specifically raised this point in your submission, in which you mentioned an ECJ case. If you do not want to go into the detail of that now, it might be helpful if you sent us the details. I share your concern that clause 56 may not cover everything that it purports to in terms of environmental cases. Can you say a little more about that?
Andrew Slaughter (Labour, Hammersmith)
You are not the first witness who has tried to find some merit in part 4 but been unsuccessful. Thank you for dealing with that.
The point you made about the ECJ, which I did not quite pick up on at first, is significant. You are saying that you would perhaps anticipate satellite litigation if part 4 is enacted as currently drafted—that the caveat in clause 56 will not be sufficient to satisfy Aarhus.
Andrew Slaughter (Labour, Hammersmith)
Mr George, would you accept, partly in relation to what you heard there, that part 4 will be a financial disincentive to prospective applicants in these cases? You might think that that is a good idea, but part 4 is not really about speeding up the process; it is about disfranchising applicants from bringing claims against developers.
Andrew Slaughter (Labour, Hammersmith)
If I understand the scenario you are painting, a challenge has been made and you have won the case, but you have to go back and get a decision again because something has moved on—perhaps in terms of planning policy. If a further challenge is made, you would have the right to attend at the permission stage and say that the matter had already been adjudicated on.
Andrew Slaughter (Labour, Hammersmith)
That is a fair point. But you are talking about a scenario in which on the one hand you have counsel representing, quite possibly, an impecunious applicant—whether they are legally aided or have scraped together the money from the local community—and on the other hand, you have three or four silks representing you, other parts of the development, the local authority and possibly the Department for Communities and Local Government as well. Is that not sufficient inequality of arms for you without loading the dice against the applicants?
Andrew Slaughter (Labour, Hammersmith)
This is a sledgehammer to crack a nut, in that case. You have the right and the means to bring before the court the idea that this is an unmeritorious claim because it has already been decided in substance or because there is not sufficient merit. The applicant has to jump through hurdles, perhaps in obtaining funding and permission and getting a lawyer to act, and you can come in at any stage and object to that. Are you really saying that the way to cure that evil is to completely change the way that judicial review works, which is what part 4 of the Bill does?
Andrew Slaughter (Labour, Hammersmith)
Yes. I am saying that if we assume that that is a problem and there are some opportunist or malicious applicants out there, you can deal with that in a number of ways. They have to jump through a number of hurdles. Judicial review is not an easy remedy for an applicant to bring. Why do you need the provisions in part 4 of the Bill to deal with that?
Andrew Slaughter (Labour, Hammersmith)
Is that not what judges are for? Is that not exactly the point that your counsel would put to the judge: that the case has migrated and those are not the arguments that were put forward at permission stage or on skeleton or what have you? It seems to me that you are saying “That might cost us money and that might cost us some time,” and it would be much better to have sufficient financial disincentives or administrative barriers to prevent those cases—whether they are good or bad cases—getting to court in the first place.
Andrew Slaughter (Labour, Hammersmith)
Are you saying that rather than being about transparency—I do not want to put words in your mouth—you think clause 51 is about intimidation, or is another way of discouraging claims being brought?
Andrew Slaughter (Labour, Hammersmith)
In relation to the effect of clause 56—I guess this question is for Mr Walker, really—our explanatory notes to the Bill state:
“This clause does not require all cases which may be argued to relate to the environment to be excluded.”
I have yet to work out what that means, other than perhaps we need to wait for regulations. If you are unable to deal with that now, I would value your thoughts on it in writing. It seems the clause is designed to deal with all matters under Aarhus, rather than with all environmental cases, and therefore the note is somewhat worrying. It is at the bottom of page 64 of the explanatory notes.
Andrew Slaughter (Labour, Hammersmith)
Yes, I’m sorry.
Andrew Slaughter (Labour, Hammersmith)
Right, okay.
David Crausby (Labour, Bolton North East)
As there are no further questions, I thank the witnesses for their evidence. We have now come to the end of today’s proceedings. We will meet again on Tuesday to begin line by line consideration of the Bill.