Dear Liberal Democrat MPs: Judicial Review restrictions are a messy compromise too far.

Dear Liberal Democrat MPs,

Tomorrow you will be asked for the second time amendments which the House of Lords has made to the Criminal Justice and Courts Bill. The Government wants you to severely restrict the right of citizens and organisations to use Judicial Review to examine its decisions and those of local authorities. This interferes with a key check on government power.

I don’t think any of you would have come up with this idea on your own. The Liberal Democrats are there to challenge entrenched power and vested interests, after all. This measure is one of those “messy compromises” of coalition.

Anyone who has ever been in any sort of relationship, business or personal, will know you don’t get things your own way the whole time. You have to do things you would rather not do. However, there have been a number of times when we have accepted Conservative measures and had to revise our support for them after they became law because the evidence showed that they were the wrong thing to do.

The most obvious example of this is on the “Bedroom Tax.” All the pre-legislative evidence suggested that it wouldn’t work. At least, when the first indications came in that those predictions were accurate, we revised our position, but it’s a road we should not have gone down in the first place.

It was also highly predictable that charging massive fees for employment tribunals would cut the number of cases they had to deal with. Just this week, Jo Swinson has had to chase up the review that the Conservative Justice Minister promised. Frankly, if you have suffered a clear cut case of discrimination at work, you may not have the £1200 necessary to bring your employer to justice. That is much more likely to affect women than men.

The third example I’d like to point out to you is the minimum income requirement which a British citizen has to earn to be allowed to bring their spouse to this country, which bears no relation to the skills or earnings potential of that spouse. Dan Rogerson has had to speak up for his constituent whose husband faces deportation to South Africa because she earns just £3000 a year below the threshold, despite the fact that her husband can easily earn enough to support the family.

Finally, two years ago you voted through provisions to allow evidence in civil cases to be heard in secret, unchallenged by the person suing the Government. That means that someone suing the UK Government for being complicit in their torture is not able to challenge the Government’s evidence. The CIA Report this week and the resulting Intelligence and Security Committee investigation gives us all further reason to question whether that was appropriate.

You might want to bear in mind that the last time you voted on this issue, a few weeks ago, Chris Grayling told you something that wasn’t true. This reform is much more absolute than he made out, meaning that people who have a genuine and legitimate grievance may not have their cases heard because the Judge has absolutely no discretion to allow it. This is not just and makes our society less fair.

The other Lords amendment which I think it is just as important to retain concerns secure colleges. When organisations like the NSPCC say that there’s a problem with allowing girls and under 15s into these places where they would be in a significant minority, then we need to take that seriously. What is the big deal with having another vote in Parliament before that can happen? It seems eminently sensible to me.

I know that the Liberal Democrats have held the Conservatives back on many issues relating to civil liberties and justice. We need to do so again. We can’t say that we stand for a fairer society when we pare back our citizens’ rights to challenge their Government. Please vote to keep the sensible, proportionate and just changes made by the Lords.

* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings

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39 Comments

  • simon ferrigno 14th Dec '14 - 9:52am

    Fully agree. Government should not reduce its accountability or restrict rights of citizen’s to call it to account.

  • Lorna Dupre 14th Dec '14 - 9:58am

    Agree totally, Caron. There have been too many times since 2010 when we’ve gone along with some wingnut Tory proposal and then had to row backwards. This mustn’t be yet another.

  • Hear hear

  • Eddie Sammon 14th Dec '14 - 10:08am

    I find these civil liberties cases hard to follow. So to summarise, the bad things about the law are:

    1. Higher fees for employment tribunals? Is this true? Shouldn’t justice be free, or at least only the loser made to pay?
    2. Minimum income requirement for a spouse. I think this law is pretty ridiculous. Any British resident should have full rights to bring over their spouse. What do they call a British citizen? A resident, or domiciled?
    3. Secure colleges and placing girls into minority environments. I don’t know enough about this, but if the NSPCC have concerns then it is probably worth looking at.

    It’s partly my fault for not taking much interest in civil liberties, but we do need to speak about them in a more easy to follow fashion.

    Best regards

  • It is also worth pointing out, that for any individual in a democracy, they “only get their own way”, probably less than half the time. Most people seem to think a working definition of democracy is when they win any particular situation! Judicial Review – and other mechanisms which seek to question, or sometimes override, the democratic processes are a necessary bulwark in a free society against tyranny. You only need to look at what happens around the world in overtly “democratic” countries to realise these strong checks and balances must be available, and in a reproach to our government, must be affordable for the general population, not just for those with sufficient money or clout. Our legal aid system has been trashed – don’t let this happen to JR.

    Unfortunately, Caron, the Lib Dems in Government have been very poor at challenging entrenched power.

  • Well said though too often the support for so called Tory measures has been so enthusiastic I no longer believe it was compromise. A look back to the threads on the bedroom tax on this site shows that those of us who predicted the results and questioned the fairness were roundly shouted down by a fair proportion of members too. So let’s not pretend these measures have been grudging compromise, even though many should have been.

    They won’t do it though, no point voting for Liberals unless we actually get them. Top marks, yet again, to those in the the Lords who sent this one back again.

  • Clive Peaple 14th Dec '14 - 11:08am

    Well said. Glad your cold’s over – we need your well expressed wise words. Surprised LDs didn’t protest Tory rise in donation ceiling (Electoral Commission very anti) – it was slipped through via Statutory Instrument. More than covers Lynton Crosby’s half million payment.

  • Quite. Or at least if you support it strap on a pair and turn up for the debate.

    The really depressing thing about this – and what makes me think it is not worth bothering with the Parliamentary lot any more is that the whole party (Sarah Teather excepted) are acquiesing in this. That makes it very unlike other issues.

  • John – that is the first comment I’ve seen by a LIb Dem MP indicating why they support them. Are you going to expand on why – or turn up and speak in the debate?

  • Caron Lindsay Caron Lindsay 14th Dec '14 - 11:26am

    John Hemming, thank you for noticing and commenting. Would you please go into more detail on that?

    We’ve had a large number of organisations, experts, charities speak out against both the reforms to JR and the secure college plans. Why are Liberal Democrat MPs supporting them.

  • Caron Lindsay Caron Lindsay 14th Dec '14 - 11:27am

    @Hywel: I think you are being slightly unfair to Lib Dem MPs re turning up to the debate. They all have it in their offices and there may be valid reasons why they may not be able to, especially on something like this which has been slipped in at a couple of days’ notice.

  • John Hemming doesn’t so much engage in the debate but dismiss it without evidence. Forgive my scepticism but much in the same way that Lib Dem MP’s dismissed concerns about the level of tuition fees (£9000 will be the exception), the NHS Reforms (see numerous posts from the then minister on here) and the problems with the bedroom tax.

    So I would respectfully suggest he addresses the concerns if he wants people to take note.

  • It is a bit messy, Caron, you mixing in an issue re: immigration of spouses under this JR heading but, since you have done it, can I add my voice to this concern.

    Any EC national, other than a UK one, can bring in a dependent spouse or partner who gets tax credit benefits etc even if the EC national is earning peanuts here. This gives indefinite residence rights as long as the relationship persists: it does not have to be a marriage, it can just be a long-ish term relationship or civil partnenrship, hetero- or homo-. In cntrast to this, I know a bright young man who met his US bride while both of them were studying abroad. There is no way that he will not earn enough to keep both himself and his wife and she is also very bright so is likely to become employed should she get to stay here but can she? No way. They have not been earning enough last year because their incomes in China were not sufficient. UK spousal immigration laws are locked in some 19th century throwback with no idea of how people live and work these days.

  • Jayne Mansfield 14th Dec '14 - 12:43pm

    As Caron admits, in some cases the evidence was there and the outcome was predictable. So for me, the belated Mea Culpa doesn’t wash.

    I have been in a relationship ( marriage) for nearly fifty years and there was no messy compromise when these factors were present, which suggests to me that there was not a great deal of disagreement at the time.

  • Caron – I don’t think I am. It may be that they all thought there was something more important to do.

    But most significantly there is (or was) a concept called “bench cover” which is meant to ensure that there is at least one LIb Dem MP in the chamber during significant business to keep an eye on things and respond is some Labour toe-rag says “and we all know that given the chance the Lib Dems would introduce legislation to make it compulsory to stamp fluffy kittens to death every day…”

    John Hemming does seem to be claiming that Lord Pannick, Lord Lester and the former Lord Chief Justice Lord Woolf don’t know what they are talking about.

    I would also draw his attention to the following exchange (Lords Hansard, 9th Dec 2014, Col 1739):

    “Lord Phillips of Sudbury (LD): Before my noble friend sits down, will he be so kind as to give a little more information about the underlying justification, as he puts it, for the rejection of this amendment? That is, he put it in terms of abuse of the judicial review process, technicalities, academic applications and so on. Has he any statistics or indications as to the extent of that abuse?

    Lord Faulks: No, I do not have any statistics, I am afraid.”

  • Exactly, Hywel. Hear, hear. This has all the hallmarks of our MPs meekly accepting what they are told by the Tories. Not for the first time.

  • Gemma Roulston 14th Dec '14 - 4:25pm

    I really do hope that the MPs actually think about what they are doing – even if it is the first time this Parliament. Judicial Review is needed to be a counterweight against decisions by Government. If it is not there, then how the heck are the citizens of this country going to be get incorrect decisions overturned or re- thought. We have done too much meekly following what the Tories want, so why don’t we actually stand up and say no to the removal of the one tool that citizens can use to correct decisions.
    Secure colleges are not suitable, unless the Party and our Tory partners want to increase sexual abuse and self harm.

  • Stephen Donnelly 14th Dec '14 - 5:06pm

    The explanation is usually cock-up rather than conspiracy. I don’t have enough legal knowledge to know whether there is any evidence to support John Hemming on this. At least he posted a comment. The weight of ‘liberal’ opinion does seem to be against his view, and the charitable view is that maybe our MPs are supported this measure because they had not paid sufficient attention to it. Any of them care to comment?

    My suspicion is that this move is backed by Tories to clear the way for an attack on the public sector after the next election. It is not good enough for our MPs to speak against such a thing, but wave through the paving legislation. If it will have little or no effect, why bother. No doubt similar assurances were given before the Lansley Bill, and the bedroom tax. I suggest the Liberal Lords remember that, and keep their resolve.

  • I knew Lord Pannick many years ago and have therefore followed his career and writings, especially on human rights, with interest. There are few if any people in Britain with greater understanding of this area of law and the implications of any proposed changes. When I hear members of this government attack his statements on the grounds that he is a lawyer – and this was used against him recently – I know their case is weak. I strongly recommend Liberal Democrat MPs to consider his arguments with care if they have any remaining concern for human rights, civil liberties, liberalism or democracy.

  • @Stephen Donnelly

    “maybe our MPs are supported this measure because they had not paid sufficient attention to it”

    Seems Liberal Democrats have done a lot of that lately, To be fair Labour fell asleep as well. Otherwise how on earth did the Tories manage to increase the total cost allowed to campaign at elections by 23% http://www.theguardian.com/politics/2014/dec/13/tories-david-cameron-buy-election-campaign-spending
    Even Labour admits they failed to spot the move so failed to force a debate in the commons

  • Cllr Nick Cotter 14th Dec '14 - 7:37pm

    Caron,
    In the past I read your excellent articles with a considerable degree of caution and scepticism because they invariably read like Issues of Pravda, echoing the comments of our Dear Leader.
    I write as someone who HAD been a member of our once party of integrity and justice,for 30+ Years (and I’m only just 51 now) !! I had become involved with the party whilst an undergraduate at Manchester Uni, I was there during the Miner’s strike, and some pretty shady going’s on with Manchester police, and the visit of a certain Leon Brittain (who our Dear Leader later worked for) to the University Student’s union – many students arrested, very few convictions, and the majority of those overturned on Appeal in front of an amazing Judge at Manchester Crown Court. I graduated, and despite my degree being of the type where most of my contemporaries went to “the City” or accountancy etc,I eventually (funded through working for several years) became a criminal legal aid defence lawyer, I now specialise as a Crown Court Solicitor Advocate.
    I will never vote for this party again until it is cleansed of it’s current leadershaip and “Ideas”.
    I was proud to work hard in numerous by-elections to get MP’s elected to my former party.I was proud to work hard over many years to get my Dad elected as the 1st Lib/Lib Dem MP in Weston-super-Mare for some 70 years.
    I am not proud of :
    1. FAMILY LAW : LASPO – the wholesale destruction of family law legal aid, legal redress now no longer available to those other than the rich in society.
    2. EMPLOYMENT LAW – £1200 Fee to pursue employment tribunal case. Chuka Umunna – the Swinson letter : “a cynical and utterly shameless attempt to distance her party from tribunal fees just five months before the general election”. – SPOT ON !!
    3. JR – Congrats to my “old man” and the other 23 Lib Dem “rebels” for their vote in Hof L’s the other night despite a 3 Line Whip – no less !!!!
    4. CRIMINAL LEGAL AID, assuming Mr Grayling’s plans go through by this time next year, 2/3 rd’s firms doing this work won’t be anymore. Legal rates for this type of work had not increased for 10 years, before 8.75 % cuts last year and a further proposed 8.75 (sic) % cut next year. Again Justice for the Rich, none for the Poor. It is already totally unviable for Firms doing this work, the next few years will result in the system collapsing. 4% of Law Students now want to go in to L

  • Cllr Nick Cotter 14th Dec '14 - 7:47pm

    I quite understand why this work provides no attraction to them.
    I was attracted to this work as a vocation, as a public service.
    Very few will follow me in to this work, ditto my wife who I met at Uni who works as an NHS Speech Therapist.
    Fortunately none of our kids are following us in to these areas of work.
    Tragic, and to think that a government with Liberal Democrats in it has pursued such vindictive policies.
    Needless to say I will not be lifting a finger to help re-elect Lib Dem MP’s at the next G/E although there are one or two I may yet help in the hope that they survive the May 2015 Wipe-out.
    I would gladly do an article on all of these Legal Issues if it would interest your readers.
    Cllr Nick Cotter (formerly Liberal Democrat, now Independent) Bicester, Oxon.

  • James Sandbach 14th Dec '14 - 8:17pm

    @John – the problem is that in a whole lof of cases it’s impossible to say that the fact of the judicial review would have made a substantial difference to the decision (Eg Teresa May’s refusal of an inquiry in the Alexander Litvinienko poisining case), and in this ‘grey area’ Parliament is trying to impose a presumption on Judges that such JRs shouldn’t be allowed to progress. Secondly fact that a judicial review might not change a policy decision is no reason to stop judicial reviews as the JR process is equally valuable in ensuring that public bodies go through their due process. The Lords wording is much more constructive because as you say it discretion in the public interest to disregard the highly likely test if it’s in the interests of justice for a case to proceed.

  • Caron Lindsay Caron Lindsay 14th Dec '14 - 8:34pm

    John, I really appreciate you taking part in this discussion. It’s really helpful.

    I think you are still being asked to reject the Lords amendment, though? Which would bring us back to the Judge having no discretion at all to allow the JR to progress even if the case being put had merit if came a cropper under the “highly likely” test.

    There is also the issue of charities who intervene to provide an expert opinion being lumbered with some of the costs.

    Also, what is your view on the issue of secure colleges admitting girl and under 15s, something that the Standing Committee on Youth Justice and NSPCC say is potentially dangerous.

  • Jayne Mansfield 14th Dec '14 - 8:57pm

    Councillor Nick Cotter.
    My congratulations to your dad and the other 23 rebels.

    It’s great to have a dad that one can be proud of.

  • David Howarth 14th Dec '14 - 9:40pm

    @John
    The amendment the Lords passed was:
    Clause 64, page 65, line 46, at end insert—
    “( ) The duties of the court or tribunal under section 31(2A), (3B) and (3C) of the Senior Courts Act 1981, or section 16(3B), (3C) and (3D) of the Tribunals, Courts and Enforcement Act 2007, are subject to the discretion of the court or tribunal to act otherwise where it considers it in the public interest to do so in all the circumstances of the case.”
    It’s the same as the previous Lords’ amendments except that it expressly requires the court to find that it is in the public interest to ignore the duty to refuse permission. The Lords are not accepting ‘highly likely’. They are driving a coach and horses through it, though in a differently drafted way that avoids killing the whole bill.
    ‘Highly likely’ is a factual judgment that leaves no discretion for an honest judge. Expecting judges to bail you out of a bad law by deliberately misinterpreting it is a terrible idea.
    I agree that the ‘gagging bill’ business was hyped, but this isn’t the same. This is serious stuff, The clause covers not just procedural matters but, for example, the core public law doctrine that public authorities must not take into account irrelevant considerations (e.g. if the CPS refused for political reasons to prosecute someone involved in torture).

  • Matthew Doye 14th Dec '14 - 11:00pm

    It seems to me that the measures that have turned around and bit us have been ones the membership wouldn’t have supported had they been put to us. Lessons for any future coalitions here, the leadership and MPs must redouble their efforts to listen to all members rather than become overly influenced by partners in government.

  • John – People disagreeing with you include David Howarth, Lords Pannick and Lester and the noted bleeding heart lefty-liberal trouble-maker former Lord Chief Justice Woolf. It is of course possible your interpretation of the law and its effect is correct and theirs is wrong.

    However the obvious point occurs to me. If “I don’t see that this will affect that many applications for JR.” then, given that a number of emminent figures say that it will (and could be very damaging to liberty etc in general) is that not an extrememly compelling case for voting against it – on the precautionary principle if nothing else?

  • Caron Lindsay Caron Lindsay 15th Dec '14 - 6:52am

    I have to say I was never convinced that the lobbying bill was some Orwellian horror, partly because 38 Degrees was the main force behind the campaign against it. When you have members of Thatcher’s Cabinet and so many eminent law lords think the changes to JR are beyond the pale, I think that we should take note.

  • Does anyone know when this will be debated? It doesn’t appear on the Commons agenda for today
    http://www.publications.parliament.uk/pa/cm201415/cmagenda/ob141215.htm

  • It seems to me, reading the original clause as quoted by John Hemmings, that the discussion is going off-beam by concentrating on just the two words “highly likely”. The Appeal Court would be bound to take the clause in its entirety and apply the test accordingly; the killer combination is the addition of the word “substantially” before “different”. A simple removal of this one word (so that the amended clause would read “if it appears to the court to be highly likely that the outcome for the applicant would not have been different if the conduct complained of had not occurred.”) would leave a much higher level of discretion, and the level of probability significantly changed, whilst retaining the possibility of barring more than just the “frivolous and vexatious” application. A debate around this would test the seriousness of those who want to see a sensible outcome.

  • David Howarth 15th Dec '14 - 11:53am

    @Hywel
    It could be at any time, without notice – debate limited to one hour (see Programme motion no. 3 of 1 December 2014).

  • Thanks David. Laws & Sausages 😉

  • If the Gagging Bill wasn’t such a problem, why was it brought forward in such a hurry – I think people here need to be careful with that. Now we are entering the “long campaign” (why we need such I don’t know, I thought it would be abolished after its outing prior to the 2010 GE) I think the “critics of the critics” will see the effect it has on charities, trade unions and other campaigning organisations. I also think this party needs too stay committed to campaigning and support such campaigning sites as 38 Degrees and Avaaz. Too much establishmentarianism around here!

  • John could be commended for having the courage to speak with us on this difficult matter, but as someone who specialised in Constitutional Law (and International Law), I feel that my understanding differs from his. I agree with Lord Lester, this will have strangle hold on JR for one key reason, it fundamentally changes what JR is.

    The key point about JR is that it is not looking at if the decision was ‘right’ or ‘wrong’ (a few very rare exceptions, which are ‘academically’ complex aside), but at whether the process used to come to that decision was correctly followed, or not. Should a Judge say the process is wrong, then the body making the decision can make the same decision again, just so long as the process used is correct.

    Why is the process, not outcome, based approach so important? Well, for three reasons:

    1 = Judges are legal, not technical, experts. Most Judges understand the Law, and how it relates to the field or industry to which it relates, but they are not the scientists, architects, designers or construction experts or range of experts involved in areas where JR is likely to arise. Take this example: ‘Natural England are reviewing an area scoped for development, but which also has a family of rare bats in it. To achieve the development, the test they must apply/prove is ‘that the development ‘is very unlikely’ to affect the bat’s habitat. The expert at Natural England says ‘the development will ‘probably’ not affect bats.’ Now, he has clearly applied the wrong test here, so it is certainly right to make him apply the correct one, but the Judge is in no place to know whether applying the correct will affect case. The judge understands the legal test, not the factual and scientific evidence that is used to find its conclusion.

    2 = If a judge now allows a JR, then he has said the public body made the wrong decision, which means you have unelected officials (who are not experts) making administrative decisions, and understanding the ability of the relative body (actually appointed by the elected officials to make the decisions) to make this decision again. It becomes much harder for Natural England to say ‘yes’ to the development is a judge has said they are wrong in their decision and they now have angry protesters using that to support their protest.

    3 = If public bodies know that they can be JR’ed, even if they get the right answer, if they use the wrong process, this sets down a narrative to use the right process first time. However, if they know that they can cut corners, so long as they get right answer, they will take the hit by cutting corners in the hope that most times they get the judge to agree the answer was right, even if the process was wrong. The problem is that even if you one or twice get the right answer through the wrong process, you still could on second or third time get it wrong (with dire consequences), which is one time too many. If the process is doing its job, it avoids you getting it wrong (thus why JR is process, not results, driven). It is working on the position that if the public body uses the correct process, then even if some people disagree with the result, that result is the right one. The enjoys bodies to cut corners, increasing the likelihood of bad decisions, whilst discouraging challenge of those decisions. The worst possible mix.

  • I also have to say that Caron’s list of Lib Dem failures during this Parliament were painful reading.

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