The Government suffered a defeat today in the House of Lords as peers rejected Chris Grayling’s attempt to make it more difficult for people to apply for judicial review.
Clause 70 of the Criminal Justice and Courts Bill would have required the High Court to dismiss claims where the judge was of the opinion that it was “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” The Government argues that this is necessary to crack down on frivolous applications for judicial review. However, critics claim that it would make it harder for the courts to hold the Government to account.
Lord Pannick (a noted lawyer) proposed an amendment that would make clause 70 permissive rather than mandatory. “Judges have ample powers, which they use, to dismiss hopeless or abusive cases,” he said. “To those of your Lordships who think that there is too much judicial review and that it takes too long, I say that Clause 70 is a blunt instrument to use in such a sensitive context.”
Meanwhile, Lord Woolf (a former Lord Chief Justice) said that “the discretion of the judge to examine the position of the Government, the position of other public bodies and the position of the citizen, and then in accordance with the facts of each individual case decide whether it is appropriate to give relief and what relief should be given, is extremely important.”
Another legal Lord, Lord Lester of Herne Hill, accused the Government of trying to game the judicial system for partisan ends. “It is an ancient principle, probably going to back to Magna Carta, that under the common law, which is at the heart of our system, no one shall be judge in his own cause. In seeking to interfere with the powers of the courts, and to place obstacles and handicaps in the way of application for judicial review, the Justice Secretary and the other Members of the Government—Liberal Democrat as well as Conservative—are judges in their own cause.”
However, Lord Tebbit argued that judicial review should only be granted if the act in question was unlawful, ultra vires, or unreasonable. He argued that judges were broadening the scope of judicial review: “I have had the impression recently, when reading about some cases in which judicial review has been granted, that a judge has decided that a rather better decision might have been the one that he proposes to make now.”
In the end, the House voted for Lord Pannick’s amendment (the final tally was 247 to 181). The fact that there was so much cross-party support for the amendment should make the Lord Chancellor think twice before asking the Commons to undo the amendment. Personally, I hope it stays in the bill. Judicial review isn’t perfect, and there have certainly been some barmy cases over the years (e.g., the Plantagenet Alliance’s quixotic attempt to prevent the reburial of Richard III in Leicester Cathedral), but Grayling is trying to use a sledgehammer to crack a nut. As many speakers pointed out today, the court already have ways of dealing with frivolous applications (for staters, they can refuse to hear them since there’s no automatic right to judicial review). Cases like R (on the application of the Plantagenet Alliance) v. The Secretary of State for Justice and Others make headlines, but they’re outliers, and the Government shouldn’t place restrictions on the many because of the stupidity of a few.