MPs to debate curtailing judicial review on Monday as rebel Lib Dem peers face wrath of senior party figures

house of lordsYesterday we told you about the Liberal Democrat rebels in the Lords who voted against the Government’s plans to restrict judicial review and to reject the plans for the new secure college to be open to girls and under 15s. It’s worth adding that the NSPCC are totally opposed to the secure college plans. Penelope Gibbs from the Standing Committee on Youth Justice wrote in an LDV article two weeks ago that young children and girls would be put at risk if this were to go ahead.

One of the key issues about Judicial Review is the “highly likely” test. That means that if people try to take an issue to judicial review because of a failure of process, such as not carrying out a proper consultation, the judge has to refuse to allow it to go ahead if, in their opinion, the failure would not have made a difference to the decision. However, it’s possible that our  backbench MPs may have voted to retain that provision in the Bill after the Lords rejected it because they were satisfied by a comment by Chris Grayling during the debate that judges would have the right to allow Judicial Reviews to go ahead if they did not pass that test.That is far from the truth, but they wouldn’t have necessarily known that when the vote took place. The Law Society Gazette has more:

It now turns out that MPs were misled by the lord chancellor before they took their vote. Whatever stance you take on the reforms themselves, the gravity of this mistake cannot be overstated.

Chris Grayling has written to one of the two Conservative MPs who rebelled on the vote to explain that he made a mistake during the debate. Grayling had said that a key clause to restrict granting permission for JR was offset by the bill allowing leeway to judges in ‘exceptional circumstances’.

In the letter, Grayling admitted no such exceptional circumstances provision exists in this clause. This goes beyond a simple oversight. It was a crucial error which was used to win favour for a controversial bill. The vote was won on false pretences.

The response from peers in the House of Lords was indignant bordering on furious.

Conservative peer Lord Deben (John Gummer) said Grayling’s mistake was ‘damaging’. He echoed the view of many colleagues when he said the matter had to return to the Commons as MPs had been misled. ‘We have to give the other house an opportunity to reverse the decision that it made when it was not in full possession of the facts,’ said Deben.

Curiously, peers kept saying the lord chancellor had apologised – but on the basis of his letter, there was nothing of the sort.

Senior Liberal Democrats are getting very rattled by the rebellion. I’m hearing tales of angry rows and confrontations with rebel peers being told that they are damaging our General Election chances as if being associated with a measure like this wouldn’t. It sounds like peers have had the sort of pressure put on them that would make even a Labour whip from the Blair days blush.

Perhaps it would be better if the leadership’s energies were put into finding a way to extricate themselves from this mess. Telling the Tories that we our backbenchers won’t support it would be a start.

The end result of these measures would be that only the very rich would have a restricted right of access to challenge the actions of the state. Liberal Democrats should now force a government compromise on both of these issues.

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

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43 Comments

  • Alisdair McGregor 11th Dec '14 - 7:54pm

    One of the very few advantages of an appointed Upper House with no term limits is the fact that the Peers have absolute freedom to ignore electorally focused short-termism like this.

    It’s not enough to make me want to keep them, but it *is* useful when it works to the advantage of Liberalism.

  • Trevor Stables 11th Dec '14 - 8:08pm

    Caron
    Totally Agree with you, our MPs need to show their backbone and throw this into the bin!!

  • Paul Pettinger 11th Dec '14 - 8:26pm

    “rebel peers being told that they are damaging our General Election chances” – got to hand it to whoever has told Peers this in defence of the leadership’s line, for their sheer chutzpah – not for their wisdom, insight or judgement, just bare-faced cheek

  • The party simply cannot toe the Tory line with this authoritarian proposal. Secret courts was an utter betrayal of liberal values, and this will do further damage to an already damaged party. Civil liberties are the bedrock of what Liberal Democrats stand for.

    As for secure colleges, why does this strike me as another money spinner for despised corporations like G4S…

  • Stephen Donnelly 11th Dec '14 - 8:57pm

    Caron : You say “Senior Liberal Democrats are getting very rattled by the rebellion. I’m hearing tales of angry rows and confrontations with rebel peers being told that they are damaging our General Election chances”. One can only wonder (not in a good way) at what is behind this.

    Also you say : “The end result of these measures would be that only the very rich would have a restricted right of access to challenge the actions of the state.”. Shame on me for not following this debate closely enough. But what is the evidence that only ‘very rich” would have a right. Is it not the case that only those with a good chance of success would be able to proceed.

  • “…Senior Liberal Democrats are getting very rattled by the rebellion. I’m hearing tales of angry rows and confrontations with rebel peers being told that they are damaging our General Election chances………,. It sounds like peers have had the sort of pressure put on them that would make even a Labour whip from the Blair days blush.”

    You cannot be serious! “..damaging our General Election chances..” ?

    What election chances?

  • Caron Lindsay Caron Lindsay 11th Dec '14 - 9:08pm

    Stephen, another clause of the bill introduces punitive costs provisions and means that certain people who intervene in the action have to have their finances scrutinised by the court.

    Apparently peers were told that every vote against would cost 3 seats at the election. That doesn’t have the slightest sliver of even homeopathic credibility.

  • Caron – What’s “homoeopathic credibility”?

  • Peter Hayes 11th Dec '14 - 9:33pm

    This is the sort of thing that could make me tell the local party I will only deliver for the council elections. Shame as the local MP is very good but he does not rebel enough as a backbencher has the right to do.

  • Not for the first time unelected peers are holding the fort… The question shouldn’t be why they are rebelling but why, if it isn’t in the coalition agreement, this measure is being supported by MP’s.

  • suzanne fletcher 11th Dec '14 - 10:01pm

    re votes at the election – there are people who will link with messages like “if we don’t stand up for them, who will”

  • Clive Peaple 11th Dec '14 - 10:06pm

    So there is still a reactionary Whig element in the Party? The same that dissuaded Vince Cable from standing for the leadership back in the day? Supporting Grayling a vote loser? This smells really bad.

  • It’s a pity that the most credible liberal democrats are unelected peers. This is the kind of thing that Liberal Democrats should have been blocking in coalition.

  • Caron Lindsay Caron Lindsay 11th Dec '14 - 10:19pm

    Tim, not even a shadow of a tiny bit of credibility.

  • Stephen Donnelly 11th Dec '14 - 10:20pm

    Caron : “Apparently peers were told that every vote against would cost 3 seats at the election”. I am still struggling to understand how this will work. The pubic reaction to this bill will be almost zero. This can only hint at some private deal to pass illiberal legislation to save the seats of three MPs. Please tell me that this is not true.

  • cllr Nick Cotter 11th Dec '14 - 10:30pm

    It’s not too late for Lib Dem MP’s to at long last show their true LIBERAL Instincts.
    They should take a great big “Leaf” out of The Lib Dem H of L’S Parliamentarians !!!
    Mr Grayling is a walking disaster area, this was yet another appalling attack on the rights of the citizen, it should be booted in to the long grass where it rightly belongs !!!

  • “Apparently peers were told that every vote against would cost 3 seats at the election”.

    Was the individual telling them this also involved with the Yes to Fairer Votes and Better Together campaigns? Just guessing from his (and it probably is a him) instinctive grasp of political strategy.

  • geoffrey payne 11th Dec '14 - 11:43pm

    Surely the rebels are in the Commons voting for a policy that is not Lib Dem policy and would stand no chance of becoming one if we debated it at conference?

  • Sounds awful. The risk of JR is about the only thing that makes many local councils attempt to ensure that their decisions are justifiable.

  • “However, it’s possible that our backbench MPs may have voted to retain that provision in the Bill after the Lords rejected it because they were satisfied by a comment by Chris Grayling during the debate that judges would have the right to allow Judicial Reviews to go ahead if they did not pass that test.That is far from the truth, but they wouldn’t have necessarily known that when the vote took place.”

    This is an incredibly obscure point but it demonstrates the point the has been raised by a small number of people (OK I can’t think of anyone other than me actually!) that their is a growing reliance on “Pepper v Hart” statements when passing legislation. This is the case which allows courts to look at statements made in Parliament to help them interpret the intent behind the legislation. it is used far to often to avoid amendments being made to legislation – and to be honest that is often the fault of opposition MPs not being willing enough to press matters to divisions and force the point.

    There are numerous criticisms of this approach – but the fact that a minister can given a mistaken (even innocently) interpretation of a piece of legislation and that could (there is no real way of telling) be the basis for Parliament passing a particular clause of legislation is one of the biggest.

    That bit of obscure minutae aside – this is dire, dire information. There is very little point voting Liberal Democrat

  • Matthew Doye 12th Dec '14 - 6:23am

    What’s the point of being Liberal Democrats if we aren’t going to be Liberal merely for some alleged electoral advantage?

  • Caron Lindsay Caron Lindsay 12th Dec '14 - 6:26am

    Stephen, I think it more likely that whoever said that was talking nonsense.

  • Geoff Payne 12th Dec '14 - 7:47am

    Judicial review is a vital constitutional safeguard to protect ordinary people from unlawful government decisions. It protects the vulnerable against the arbitrary power of the state. Surely a central liberal principle! Chris Grayling does not like it because he has lost three of them, faces three more, and yet arrogantly believes that the government’s unlawfully made decisions should stand anyway. Lib Dem peers are to be congratulated, not condemned. Since when did our electoral prospects hinge on siding with the likes of Grayling and Theresa May? These changes were not in the coalition agreement and they are not Lib Dem policy. Our MPs must wise up and support the Lords amendments. If not, then it’s shameful frankly.

  • Hats off to the Lib Dem peers. The late, great Conrad Russell would have been with them. We need protection from prerogative powers and the like. My guess is that these proposals are a cost-cutting measure from the Ministry of Justice which doesn’t like the increase in immigration judicial reviews. And probably a lot of people in government don’t want the challenges to HS2. But I don’t believe for a second that voting against would cost us seats at the election. What we should do is take a principled stand. We are and always have been opposed to abuses of power so we cannot in good conscience support these restrictions on judicial review. If our campaign advisers can’t get their heads around that then I suggest they would feel more at home in another party.

  • A return to liberal principles on this issue would signal a renewed interest in the student vote. Law students at least might appreciate a stance on this measure. Then we can perhaps start thinking about other measures that might appeal to the mass of students.

  • “Apparently peers were told that every vote against would cost 3 seats at the election”.

    Caron : Any chance of revealing the person who came up with this piece of politically illiterate nonsense?

    The list of Liberal Democrat whips in the HofL is very short. So I suppose I could work it out by a process of elimination.
    The really worrying thing is that whoever said it might believe it. In which case it is time to relieve them of their whipping duties in the HofL and send them off on four months of practical political training in a key seat.
    How about four months of knocking on doors and delivering in Gordon?

  • Tony Dawson 12th Dec '14 - 8:57am

    ““…Senior Liberal Democrats are getting very rattled by the rebellion.”

    Perhaps these rattles are soon to be thrown out of the pram? They have resolutely refused to throw out the dummy. 🙁

    “rebel peers being told that they are damaging our General Election chances………,.”

    Would those who are doing the ‘telling’ here recognise a factor which would improve our election chances if they fell over one?

  • James Sandbach 12th Dec '14 - 1:27pm

    Liberal Democrats Lawyers Association have today written to all MPs to encourage support for the Lords amendment – our benches in the Lords are packed full of eminent lawyers who know in great detail the practical side of how JRs work in the Courts (so understand the implications of the ‘highly likely ‘ test) whilst MPs can’t be expected to have that level of specialist understanding, so I hope they take appropriate advice. The briefings that MoJ civil servants have provided are sadly very biased.

    As for the politics, there surely can’t be any political harm to us at this latter (fag-end) stage of the Parliament for backbenchers to be rebelling more frequently and publicly – surely this fits the Party’s differentiation strategy? Some of the standard letters I’ve seen MPs use to defend the JR reforms are literally cut and pasted from Chris Grayling’s script about the troublesome nature of JR which would imply an assimilation strategy rather than a differentiation strategy.

    I don’t think think this is the crisis that some people are making it out to be – the Government are NOT trying to abolish Judicial Review, but they are trying to make it a lot harder and legislating about it in a way that is inappropriate. Nor are the Lords trying to stop the Government’s specific reforms of Judicial Review, their amendments simply make it a matter of judicial discretion as to how these provisions will apply – a totally sensible tack. I’ve written further about it here http://www.socialliberal.net/judges_beware

  • Well done LD peers. Could someone please enlighten me on a couple of points.

    1. Just who are the known (or suspected) “senior Liberal Democrats” that are so rattled by the peers’ ‘rebellion’?

    2. How does this small cabal remain so impervious to sanction – for example being fired for gross incompetence not to mention betraying the Party’s traditional principles?

  • Everybody should read James Sandbach’s article on this.
    http://www.socialliberal.net/judges_beware

    Which includes —
    “……..more troubling is that our MPs in particular seem to show limited understanding as to why this stuff really matters from a liberal perspective.
    None spoke in the debate but almost all voted en bloc.
    None were even in the Chamber apart from Simon Hughes dutifully holding his Ministerial….”

    GF,
    I too would like to know who are these “senior Liberal Democrats” that are so rattled by the peers’ ‘rebellion’?
    And how have they calculated their very exact calculation that “…every vote against would cost 3 seats at the election” ?

    Who exactly is responsible for this 3 seats formula?

  • Joseph Toovey 12th Dec '14 - 3:12pm

    I’m a law student and a Lib Dem. This business is seriously shaking my faith in the Party. If we can’t stand up for civil liberties and the right to make the state play by the rules, then what we here for? What use is it having Lib Dem MPs if this is what they vote for?

  • Adam Hewitt 12th Dec '14 - 4:15pm

    I’ve been a liberal my whole life and a Lib Dem member up til last year.

    I still vote for them – but as the best of a bad bunch, not with any of my former enthusiasm.

    I accepted the need to go into Coalition, for some of the hideous policies and votes that Coalition has tied us to, for economically far more right-wing decisions and rhetoric than I’m comfortable with.

    But I don’t understand how this current crop of justice policies isn’t a complete red line. The lack of a real fight, the cut-and-pasted Tory rhetoric, it makes me think that some of what our hysterical opponents have been saying for years has some truth in it – and that our MPs will float in the wind and lack real principles. I mean, this is just core liberal stuff, and it horrifies me that the parliamentary party, even those I consider Good Eggs, don’t seem to get it.

    If Lib Dems aren’t standing up – properly fighting – for civil liberties and access to justice, then they are worse than useless.

    We’ve lost everyone but the core liberal vote already (plus or minus a few people who happen to like their local Lib Dem MP), no matter what the hell we put on the front cover of our manifesto. Failing to oppose Grayling’s agenda (plus other recent capitulations on core liberal issues and on immigration rhetoric, leaving desperate people to die in the Mediterranean, etc) is a quick way to find how low our polling floor really goes. It’s just so depressing.

  • What an absolute disgrace. Abandoning the ability to challenge government during a time when fascism is on the rise is the most appalling blunder. The ‘rebels’ are standing up for something incredibly important – well done them, and shame on those berating them.

  • Hurrah for the Lords, and hurrah for the Lib Dem Lawyers Association

  • Jane Ann Liston 12th Dec '14 - 6:44pm

    Is the suggestion that it is ‘easy’ to get a judicial review? It’s certainly not cheap; costs an arm and a leg at least, as far as I can ascertain from recent challenges to Fife Council.

  • Tony Greaves 12th Dec '14 - 11:09pm

    I’m not going to break the sort of Chatham House type rules that apply to our party meetings. Except to report that I said that I did not think that the outcome of the Lords votes would make the slightest difference to the results in Burnley, Bradford and Leeds. We were threatened with a posse of 20 MPs marching in to sort us out, but it never materialised. Odd really.

    Tony

  • Tony Dawson 13th Dec '14 - 3:13pm

    I have personally won a Judicial Review some years ago in a case which rattled the NHS’ attitude to whistleblowers. My daughter, formerly a Party member, is training to be a barrister so I suppose I have a ‘double interest’ in this matter.

    While you cannot have people going to law on every little thing they choose in a US manner (only backed by the state through legal aid), if JR is done away with almost wholesale then this is a serious matter in a country where the executive (at national or local level and through state agencies) appears to be regularly deliberately acting unlawfully.

  • Sadie Smith 13th Dec '14 - 9:41pm

    This is just crazy scare ‘tactics’.
    The Lords got this right. JR may be inconvenient for the Executive but it is significant. A challenge needs to be possible.
    And we could do with a political gesture after this week. And it happens that principle and political convenience for once coincide.

  • Fiona White 14th Dec '14 - 7:38pm

    The function of the HoL is to examine and, where necessary, amend government legislation. This is not the first time that they have acted to make changes. They must not be pressured to act against their instincts to defend personal liberty and the rights of the individual against the government of whatever hue, which I have always considered to be a core Liberal Democrat value.

  • Peter Chivall 16th Dec '14 - 10:30am

    Thank God the only MP I am likely to be directly campaigning for is Julian Huppert in Cambridge. I cannot believe that he would have voted to support Grayling on this clause. If he did then perhaps I should do what all my family and friends tell m e to do and leave the Party after 44 years and joint he Greens.

  • Peter Chivall 16th Dec ’14 – 10:30am
    “……..then perhaps I should do what all my family and friends tell me to do and leave the Party after 44 years and joint he Greens.”

    Peter, I have had people say the same to me.
    My son said to me only this weekend that Nobody who holds genuine Liberal Democrat views could possibly vote for Clegg and his like.

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