Peer review

JeremyBeecham.jpgJeremy Beecham on another attempt, later today, to get Chris Grayling to rethink plans for JR

Chris Grayling has proclaimed that judicial review (JR), “is not a promotional tool for countless left-wing  campaigns”. Or, as he put it during the 58 minutes which MPs devoted last week to debating the Lords amendments: “Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool and it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country”. He then went on to claim, “in far too many examples that is precisely what it has become”.

Oddly enough, the Lord Chancellor failed to provide any example of these malign abuses of the system, or indeed the identity of the so called abusers. However, his Justice Minister Lord Faulks has at least condescended to cite the case in which the building of a supermarket in Yorkshire was delayed by all of six months due to an application for JR – not incidentally from a pressure group but a commercial rival of the developer.

Grayling has also given the game away in presuming that “perfectly lawful decision making” is what is at stake. The implication is clear – what the government legislates is ipso facto lawful. In the fantasy world in which the courts are besieged by meddlesome litigants pursuing left-wing causes, like the Countryside Alliance or The Daily Mail, they are deemed to be wholly incapable of sorting out the legal wheat from the campaigning chaff.

But, typically, the Justice Secretary, and the amendments he has produced, which were never spelled out in the Commons, ignore the basic requirements already enshrined in law and practice, that permission is required both to bring a case to a hearing and for third parties to intervene. The government, itself a possible defendant in these cases, seeks to restrict the exercise of judicial discretion in its own interests and on the basis of the flimsiest evidence of the abuses it affects to detect. 

Labour will today support an amendment, led by Crossbench Peer Lord Pannick, preserving the Court’s discretion to grant JR where it considered it in the public interest to do so, along with others he has tabled regarding interveners and costs. But the support goes much further outside of Parliament, including senior judiciary, past and present, the JCHR and the Equality and Human Rights Commission, and such historically subversive organisations, like Age UK, Mencap and Mind.

If anything has distinguished the LibDems, and particularly the former Liberal Party, it has been an attachment to civil liberties and the rule of law. They have been vigilant in questioning, and from time to time opposing, policies of different governments which were perceived to be in conflict with their concerns. Many are no doubt troubled by what Grayling seeks to achieve. But as there is nothing in the Coalition Agreement referring to the measures, I trust – or rather, hope – some LibDem backbenchers will join with us and help get the government to rethink its direction of travel.

Lord Jeremy Beecham is Shadow Justice Minister in the House of Lords. He tweets @JeremyBeecham

Published 9th December 2014

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