Civil Procedure (Amendment No. 4)
RULES 2013

The Committee consisted of the following Members:

Chair: Mr Peter Bone 

† Alexander, Heidi (Lewisham East) (Lab) 

† Blunkett, Mr David (Sheffield, Brightside and Hillsborough) (Lab) 

† Doyle-Price, Jackie (Thurrock) (Con) 

† Ellis, Michael (Northampton North) (Con) 

† Evennett, Mr David (Lord Commissioner of Her Majesty's Treasury)  

† Grant, Mrs Helen (Parliamentary Under-Secretary of State for Justice)  

† Harris, Rebecca (Castle Point) (Con) 

† Hemming, John (Birmingham, Yardley) (LD) 

† Hillier, Meg (Hackney South and Shoreditch) (Lab/Co-op) 

† James, Mrs Siân C. (Swansea East) (Lab) 

† Neill, Robert (Bromley and Chislehurst) (Con) 

† Paisley, Ian (North Antrim) (DUP) 

† Penrose, John (Weston-super-Mare) (Con) 

† Roy, Mr Frank (Motherwell and Wishaw) (Lab) 

† Roy, Lindsay (Glenrothes) (Lab) 

† Rutley, David (Macclesfield) (Con) 

† Slaughter, Mr Andy (Hammersmith) (Lab) 

† Williams, Stephen (Bristol West) (LD) 

Neil Caulfield, Committee Clerk

† attended the Committee

Seventh Delegated Legislation Committee 

Thursday 12 September 2013  

[Mr Peter Bone in the Chair] 

Civil Procedure (Amendment No. 4) Rules 2013

11.30 am 

Mr Andy Slaughter (Hammersmith) (Lab):  I beg to move, 

That the Committee has considered the Civil Procedure (Amendment No. 4) Rules 2013 (S.I. 2013, No. 1412). 

It is a pleasure to serve under your chairmanship this morning, Mr Bone, and to be kicking off the debate. As the Minister said to me, it is an unusual experience. This is regarded as our appeal against these regulations, so it is right that I go first. This was a negative statutory instrument that we have asked to debate, because we think it raises important matters. Recent events will substantiate that. It is a pleasure to be here to debate judicial review for the first time in some while. Notwithstanding that these regulations are already in force, if there is a vote and we are successful, they could be repealed, which is something that we very much wish to see. 

I will deal with all aspects of the regulations, but the specific reason why we wish them to be debated relates to the foreshortening of time limits for issue, particularly in planning permission cases, although the instrument also deals with procurement cases. It is difficult to ignore the surrounding clamour on judicial review, whether in the media or in the Government’s formal consultation processes. However, I will not go down that route, save to put today’s debate in context. The current proposals were presaged in a consultation document on 13 December last year. The Government’s response was published this April. There are essentially three proposals, two of which are here. The other, the proposal for a new fee for an oral rehearing of a claim, will be dealt with by the Government in a separate statutory instrument, under the negative procedure, as was revealed in the response to the fees remission consultation that came out on Monday. 

I hope that everyone is following me, because for the purposes of this debate, I have also looked at two impact assessments, which related to the original consultation document and the Government’s response to that; the second consultation on judicial review, which was published last Friday; the two consultation documents surrounding documentation in relation to the consultation on transforming legal aid, which have substantial implications for judicial review; and the document on fee remission. It appears to be something of a Government obsession. An important but relatively small area of the law, in terms of its impact on the courts, has attracted the Secretary of State’s attention. That culminated in his article in the Daily Mail last week, headlined, “The judicial review system is not a promotional tool for countless Left-wing campaigners.” That was a slightly unfortunate headline, because I think what he meant was that the judicial review system is a promotional tool for countless left-wing campaigners. 

The article began: 

“The professional campaigners of Britain are growing in number, taking over charities, dominating BBC programmes and swarming around Westminster…In the charity sector, a whole range of former advisers from the last Government can be found in senior roles…they hire teams of lawyers who have turned such legal challenges into a lucrative industry.” 

It added that judicial reviews are being 

“used by campaign groups as a legal delaying tactic for something they oppose. For example, they are used to stop a new development project”. 

This is not reds under the beds; this is reds out from under the bed and swarming around in great numbers. I do not know whether the Minister can see them, or whether it is only Mystic Chris who can see all these people swarming around Westminster. I have not noticed them. 

Mr David Blunkett (Sheffield, Brightside and Hillsborough) (Lab):  Does my hon. Friend agree that these bodies are made up of the charities that are now being attacked under the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill? 

Mr Slaughter:  Nor surprisingly, given my right hon. Friend’s pedigree and experience, he anticipates what I was about to say. This is a concerted attack on the voluntary sector, faith groups and non-governmental organisations—an attack that we have been seeing in the main Chamber all this week. 

Robert Neill (Bromley and Chislehurst) (Con):  Noting that the scope of the statutory instrument is quite limited, and that it relates to the reduction in the time limit for judicial review of planning permissions, does the hon. Gentleman regard developers such as CALA Homes, which used judicial review to frustrate democratic decisions over the green belt, as part of some left-wing conspiracy? Or is it in reality a simple technical reform to align time limits with statutory time limits? Judicial review is not just about left-wing causes. It can involve others, too. 

Mr Slaughter:  It is not the first and it will perhaps not be the last time that the hon. Gentleman has got the wrong end of the stick. I am glad to see that he is agreeing with my right hon. Friend and me, and disagreeing with his Secretary of State. He is absolutely right. The judicial review against High Speed 2 was primarily brought by Conservative local authorities, the Countryside Alliance—[ Interruption. ] I will come to the merits of planning cases in a moment, but the applicants in these cases cover a vast range. Many of them are individual citizens and residents. Many of them are charities, faith groups and others with a legitimate interest and no political axe to grind. Some of them come from politically controlled organisations, such as local organisations, and I suggest that there are just as many from the right as from the left. 

Robert Neill:  With respect, it is the hon. Gentleman who has the wrong end of the stick. The purpose of my intervention was to point out to him that the proposal here is limited and technical. Secondly, everybody would accept that judicial review is important, but there is

concern about the hijacking of judicial review sometimes for political causes. There is also concern at the current proposals allowing large and wealthy corporate organisations to override the concerns of local residents. 

The Chair:  Order. Interventions need to be short and to the point. The hon. Gentleman will have a chance to speak later. 

Mr Slaughter:  I am grateful to the hon. Member for Bromley and Chislehurst for helping me to get on with my argument. I was just coming to the fallacies that surround many of the Government’s assertions. Many of their attacks on lawyers and the legal system are based on populist rhetoric that has no basis in fact. I am sure that the Minister knows that, even if the Secretary of State does not. 

There was a good response to the Daily Mail article in the UK Human Rights Blog by Adam Wagner. It pointed out that we are talking about only about 50 judicial reviews a year out of some 11,500. That number will decline sharply. Indeed, if one puts aside judicial review of asylum and immigration cases, there is no substantial increase in judicial review. The number has run at about 2,000 cases per annum since 2005. In planning cases, it never goes above 200, and is often substantially below that. This is a sledgehammer to crack a nut, and we must look for other motives than those which the instrument purports to put forward. One need simply look at the facts; the Government’s own facts—these are figures from the Government’s consultation paper—bear that out. 

Ian Paisley (North Antrim) (DUP):  Does the hon. Gentleman agree that most applicants want a quick yes or no? The state of “maybe” that is allowed by people abusing the planning process has necessitated a change in the law. 

Mr Slaughter:  Indeed I do. On the very specific issue of planning, I will explain in a moment where I think we are, and why we have the problems that we have. We are talking about dozens rather than hundreds or thousands of cases; let me be clear about that. There is a legion of experts in this field. Lord Woolf has warned the Government to be very careful about the steps they take. He said that the Ministry of Justice shows a 

“remarkable lack of concern for the precision of the facts… In our system, without its written constitution embedded in our law so it can’t be changed, judicial review is critical”. 

This should not really need pointing out to the Minister, but Lord Woolf points out that legislation that will deal with immigration and asylum appeals, which make up about 70% of the total, is already going through Parliament. These cases will largely be siphoned off to the first-tier tribunal. That seems a sensible and proportionate reform. 

The hon. Member for North Antrim raised another point, which is delay. Delay does not benefit anybody. The Secretary of State has suggested a new planning chamber. To me this sounds like quite a sensible idea, and something we should certainly look at. Nobody, whether developers, local authorities or residents, seeks delay. They want a speedy resolution of their case. If there are delays in the system, they should be dealt with, but these proposals do not deal with that at all. 

John Penrose (Weston-super-Mare) (Con):  The hon. Gentleman mentioned that he is not objecting in principle to all the reforms, and he is giving examples of things that he thinks might be sensible. I wonder if, for our benefit, he could clarify whether he is also objecting in principle to the second point on the explanatory memorandum, which says that the rules aim in part to 

“remove the right to a reconsideration at a hearing of the refusal of permission to bring Judicial Review…in cases where the application is certified as totally without merit by the Judge”. 

I presume that he does not object to that in principle, but it would be helpful to have that clarified. 

Mr Slaughter:  I am grateful for that intervention, because it allows us to clarify that we object to almost everything that the Government propose, and the reason for that, as I have indicated, is that there are two very substantial procedural measures that ought to deal with any current problems with the administrative process and the administrative court. On the point about cases being “totally without merit”, it sounds good, doesn’t it? One might ask why a case that is totally without merit should be allowed to proceed. The answer is that there are a number of cases that are certified on the papers as being totally without merit that go on to succeed at an oral hearing, and indeed at a full hearing. 

Again, I wish that the Government would take the advice of practitioners, which they studiously ignore here, just as they studiously ignored the special advocates with regard to the Justice and Security Bill. The Government seem wilfully to ignore what professional counsel say. By having a blanket ban on those proceedings going any further, the Government effectively shut the door on what may be meritorious claims. 

I do not know whether the Government actually believe this, but the fiction that they put forward is that greedy, hungry lawyers are going around launching meritless cases ten to the dozen. There are strict criteria, and both the reputation and the professional standing of lawyers are at stake when they take on these cases. The courts already have remedies where there is seen to be an abuse, and the courts are increasingly willing to use these remedies; I am talking about penalties in costs and the judgments that are reached. So no, I do not support a total ban. That is not the main thrust of the argument today. I am grateful to the hon. Gentleman for raising the issue, but that needs to be dealt with as a separate point. 

I recommend to hon. and right hon. Members a long article in a recent edition of the London Review of Books, by former Court of Appeal judge Stephen Sedley, which comprehensively took apart the Government’s proposals on judicial review, including those in the statutory instrument. I do not want to take up the Committee’s time by reading long sections from the article, but I think that certainly the Minister and perhaps other hon. Members should read it. Stephen Sedley first points out that 

“Grayling’s proposal is to undermine judicial review by starving claimants of legal aid on several fronts”. 

I understand that the Minister cannot deal to any extent with legal aid matters. Sedley then points out the role of legal aid in prison law, and how that has developed. He also points out that 

“The third method is subtler: to deny legal aid for all judicial review claims (in which much of the cost is incurred in the early stages) until and unless a judge gives them the go-ahead. In other

words, the entire financial risk of initiating a claim is to be borne by the claimant’s lawyers…Grayling’s consultation paper appears not to comprehend that of the 11,000-odd judicial review claims which were initiated in 2011 but never came to trial, a substantial proportion will have been partly or wholly successful without need of adjudication.” 

Again, there are now substantial figures on these matters, from reliable research done by the Public Law Project and other bodies, which show that the Government’s consultation papers are misleading. They say that there is a one in six chance of permission being granted, but that does not apply to this type of case, where it is more like one in four. Far more significantly, when cases are withdrawn before permission stage, it is often a sign of the applicant’s success, not failure. In many cases, it is the preliminary work done by the applicant’s lawyers—which the Government now seek not to fund—which leads to the public authority realising or taking some action to right the wrong it had committed. In the HS2 case, for example, the Government had to re-consult. I do not know the type of case the Government are thinking of when they say there are abuses. 

Like other hon. Members, yesterday I had the pleasure of visiting the MP capability assessment run by Rethink to show how benefit claimants with mental illnesses are sorely treated by the Atos system. Rethink has helped to win a judicial review on that subject, and the Government are now appealing. The issue is familiar to my hon. Friend the Member for Lewisham East, because a judicial review was brought by Lewisham local authority and others on the closure of Lewisham hospital accident and emergency. That was also won and is also being appealed against by the Government. 

Michael Ellis (Northampton North) (Con):  Does the hon. Gentleman think that in principle, generally speaking, we can support judicial activism, as it is called in the United States? Does he think Parliament should make the laws of this country, or does he agree with some that judges can start usurping the role of Parliament and make the law of this land? 

Mr Slaughter:  I am slightly surprised by that question from the hon. Gentleman, given his background. I do not think we are talking about judicial activism. What we are talking about goes to the core of the matter, and perhaps the Secretary of State’s motives. We are talking about opportunities for the citizen to challenge the state. Stephen Sedley and Lord Woolf make the point that in a constitution such as ours, where a high degree of power is concentrated in a Secretary of State and other public bodies, it is right to have the opportunity through other means to challenge those decisions, when they are wrong. That is what judicial review is about. It is not about allowing judges to change the law; it is about allowing judges to say when Ministers have got the law wrong. 

Michael Ellis:  Of course, Lord Denning invented judicial review. It did not really exist more than 50 or 60 years ago. We still had a democracy in those days. The principle is nevertheless the same. Does the hon. Gentleman not think that allowing judges increasingly to declare that the law passed by the Houses of this Parliament is in some way defective is effectively usurping the democratic right of the Chambers of this Parliament? 

Mr Slaughter:  I am not sure that that question deserves an answer. That is not what judicial review does. Judicial review allows the citizen to challenge the state, where the state is getting things wrong in a way detrimental to the citizen. The benefit of judicial review, often overlooked by the Government, is that it may be brought by an individual, but the benefits accrue from having good decision making, and from the result in an individual case of making the public body go back and take that decision again. Those aspects are hugely beneficial to the democratic system. 

Mr Blunkett:  I will not detain the Committee, but could we distinguish between concern about the growth of judicial review and the specific issue that we are considering today, which is a very tiny part of the process dealing with planning? 

Mr Slaughter:  My right hon. Friend is absolutely right. Assertions about the growth of judicial review generally are cloaking and clouding the issues in this SI. I shall get to the heart of planning permission shortly, none the less, you cannot ignore the fact that the Government’s attack in the new consultation paper on standing, or indeed the Government’s affirmation that they will go ahead with their proposals on the withdrawal of legal aid, are ways of choking off the opportunity for judicial review. The attack on standing is clearly designed to affect organisations. As I have said, perhaps there are only 50 per annum, but they are important cases. 

The foreshortening of time limits, which the SI does, will probably not have a detrimental effect if you are talking about organisations like Rethink, Shelter or local authorities. They probably have the resources, if they believe that a JR is merited, to do it within a six-week timetable. Those who will not have that opportunity in planning JRs are residents’ groups, individual citizens and those who are affected in that way. If those people are restricted from obtaining legal aid at the same time, that being the other route for them to get legal advice, effectively they will be there as litigants in person. They will face very short time limits and usually be up against very powerful forces—a combination of local authorities and developers. 

That brings me to that specific matter. In my short chronology earlier, I started in December last year, but let me read from 23 November last year an excerpt from an article in Property Week, because I suspect it is the origin of the rules that we are considering. It decries what it calls the “immoral maze” of judicial reviews and refers to a speech by the Prime Minister at the CBI, in which he declared war on judicial review. It mentions a number of cases. I suppose I ought to declare an interest because both the cases it particularly mentions are in my constituency. Capital and Counties, which is a major international property developer, faces a hearing on the adoption of a planning framework in Earl’s Court that will not take place for another 11 months. It will not start development until the situation is resolved. Nearby, Development Securities is facing a similar JR on its Shepherd’s Bush market scheme. I have to say that I do not think it is necessarily a coincidence, not because it is it is my constituency, but because of the actions of developers and local authorities in that constituency. It is easier to explain by example, such as the Earl’s Court scheme, why these provisions on restrictions on planning JRs are so unnecessary and damaging. 

In one case, the litigants are a group of small businesses whose shops will be demolished so that Development Securities, one of the biggest planning developers in the country, can make money out of building luxury flats on the site. In the other case, the litigants are a group of council tenants and leaseholders, 760 of whose homes are going to be demolished to build 8,000 luxury flats. That is also part of a development that will lead to the loss of many hundreds of jobs on the London underground and the demolition of the Earl’s Court exhibition centre. That is an £8 billion project. It is the largest current planning application under consideration in London. 

If I explain why this application is significant, it will show why judicial review has such an important role in planning matters. The reason is that the planning authorities, both the local authority and the Mayor of London, are the direct beneficiaries and partners in that scheme. The local authority of Hammersmith and Fulham has received £55 million for the sale of its land as part of the scheme. The Mayor of London is likely to receive a larger sum through Transport for London for a sale relating to another part of the scheme. At the same time, they are the development partners and they want the development to go ahead, particularly the demolition of the affordable housing and its replacement with luxury housing on the site. Even with the Chinese walls that are supposed to exist with local authorities, it is difficult to see how an impartial decision can be taken by authorities in such a situation. Right up until the final decision last night and the planning permission that is likely to be granted in the next few days, that has been the view. 

This matter—the largest planning application currently under way in London—should clearly be subject to a public inquiry through a call-in by the Secretary of State, but the Secretary of State has also declined to call it in. Only one recourse remains for those residents who will lose their homes, for those who will lose their jobs and for those who do not want a historic area of London and an iconic building such as the exhibition centre demolished to make way for faceless, empty, luxury housing that is simply there to make profit for developers: it is, of course, judicial review. At some point this week—perhaps as this Committee is taking place—planning permission will be signed and the section 106 agreement will be granted. There will then be not three months, but six weeks for those council tenants to issue judicial review proceedings. If any member of the Committee seriously thinks that the balance between international developers, local authorities and the Mayor of London on the one hand and a group of low-income residents on the other is fair and that it should be further tilted in favour of the former, they are misleading themselves. 

Michael Ellis:  The hon. Gentleman is being generous in giving way. Does he object to the six-week time limit? Shortening the time limits to bring judicial reviews in planning and procurement cases into line with statutory appeals in other cases does not seem wholly unreasonable. After all, even where a defendant who has been sentenced to a period of imprisonment wants an appeal, they have less than six weeks to appeal to the Court of Appeal in writing. Does the hon. Gentleman believe that even a criminal defendant should get less time than the judicial review process to which he refers? 

Mr Slaughter:  The hon. Gentleman knows the answer to that question. The papers in an application such as this can literally fill one or two rooms. They are highly complex and technical matters. 

To be fair, the Prime Minister was clear last year and the Secretaries of State for Communities and Local Government and for Justice have both been clear that the proposal is about tilting the balance in favour of property developers. There used to be something called the developers’ forum, which raised some £3.5 million for the Conservative party until bad publicity in The Daily Telegraph and the Daily Mail saw it wound up about a year ago. It was chaired by the chief executive of Helical Bar, which is another aggressive developer, who was on the record as saying that he expects to get some benefit from his donations to political parties when planning consents are granted. That is what it is about in the end. It is about political advantage, ideology and seeing NGOs, charities, resident groups or injured parties as a nasty encumbrance. That goes across the board; it does not just happen in planning cases. The reason for planning cases being made an exception of here and the judicial review limit being brought down to six weeks is simply to give an advantage to developers. 

Ian Paisley:  I fail to follow the logic. In many planning cases, behind the alleged injured party there is usually a sponsor that opposes the successful applicant. What the hon. Gentleman proposes would simply encourage a long and frustrating process. It is in everyone’s interest to get through the process quickly, with a quick yes or no, and to move on. 

Mr Slaughter:  I think that used to be called “champerty”, did it not? I do not think that the courts would entertain bringing a case on somebody else’s behalf for ulterior motives. I absolutely disagree. I have a lot of experience of this, much of it acquired as a lawyer. A minority of cases are brought by organisations, but usually for the public good, or on behalf of a wider group of people. In most cases, it is either an individual, who often will be seeking legal aid, or a group of individuals who are seeking to use the Aarhus agreement to bring the case under environmental regulations. The system works quite well in planning cases at the moment. If anything, it is tipped too far against the applicants. The SI is a crude political exercise to tip it in favour of the developer and against the citizen. It is part of a worrying trend that the Secretary of State is pursuing, in terms of not taking criticism of the state and making sure that powerful interests can resist any sort of legal challenge. 

I noticed yesterday that the Liberal Democrats did a U-turn on secret courts. Having sat in this Committee Room for several weeks—and my hon. Friend the Member for Lewisham East did, too—and watched them wring their hands about that matter and then vote for the Government, yet now decide that they should have wrung their hands and voted with us, I hope that that those Damascene conversions are going to carry over into other areas of civil liberties. I look to the hon. Gentleman the Member for Birmingham, Yardley and the Liberal Democrats here when we come to vote on this matter. 

12.1 pm 

John Hemming (Birmingham, Yardley) (LD):  It is a pleasure to serve under your chairmanship, Mr Bone. The hon. Member for Hammersmith is probably aware

that I voted against the Second Reading and Third Reading of the secret courts Bill, so I went a little further in opposing that than the official Opposition. 

I declare an interest: everyone knows my interest in justice for families. It is generally family stuff, but I have assisted litigants in person in judicial reviews and successfully quashed decisions. I have a particular interest in this, from a non-lawyer’s perspective—my degree is in physics, rather than in law. I have never been paid for any legal work. I had the experience in my own constituency of the delays that resulted to the Swan development through a particular developer trying to ransom a strip. Jeremy Knight Adams was using every single possible legal trick to delay something to try to get some money out of Tesco. 

The Opposition miss the point on the question of legal certainty. If something can be quashed within three months, if you have a really large development, you have to wait three months to see if the planning permission is applied for. The example that the hon. Member for Hammersmith cites of the major development going on in his constituency is one in which everybody knows what is happening; so people are teed up. I responded to the consultation in support of the Government for reducing the time scale from three months to six weeks. 

I am more nervous about the issue of “totally without merit”; we need to keep an eye on that. However, I am aware of what goes on in those situations. I ask simply that the Government keep an eye on that. However, the issue is not just about those cases where an application is made: it is also about the cases where an application is not made, but a delay ensues as a result of the deadline. 

12.3 pm 

 

Robert Neill:  It is a pleasure to serve under your chairmanship, Mr Bone. 

I entirely endorse the observations made by my hon. Friend the Member for Birmingham, Yardley in relation to this part of the debate. The hon. Member for Hammersmith, speaking for the Opposition, talked a good deal about judicial review but very little about the substance of this statutory instrument. Perhaps we ought to try to return the debate to that, because this is a logical and practical set of measures. 

I speak as somebody who has had some experience of judicial review as a lawyer and who, as Minister responsible for planning matters in the Department for Communities and Local Government, had to take decisions of the class that sometimes will be subject to a judicial review. I assure the Committee that great care was taken by Ministers of both this and the previous Government—both political persuasions—to make sure that the issues that might trigger judicial review were taken on board. Ministers under the previous Government made sure that we had careful legal advice on such matters, and so did I. Judicial review is taken seriously. I know the same applies to local authorities. 

What the proposal seeks to do on planning is entirely logical and straightforward; as my hon. Friend the Member for Northampton North said, it aims to remove inordinate delay from the system. We are simply seeking to say that the same time limit should apply for challenging a decision of a Minister or of a local planning authority by judicial review as should apply under the statutory

appeal provision in section 288 of the Town and Country Planning Act 1990. It is illogical to have two separate challenge regimes with two separate time limits. There is no problem with having two separate regimes, because the grounds for a judicial review may well be broader than the grounds for a statutory appeal under the TCPA. However, since very often the base material to be considered will be broadly the same, it is wholly illogical to have two separate time limits. 

As for shifting the burden towards developers, my experience in the Department was that very frequently developers were unhappy at decisions to turn down applications, in which local authorities responded to the objections of residents, and so very often developers are the people who will bring the judicial review. They can make that challenge through judicial review in six weeks just as well as they can challenge through statutory means in six weeks. 

Rebecca Harris (Castle Point) (Con):  I have a case in my constituency that is similar to those my hon. Friend has described, in the area of Glebelands in Thundersley. The Minister has found for the democratic local authority and turned down an application by a planning developer, but my constituents were absolutely dismayed to find that they have to wait around, possibly for several months, to find out whether that will be challenged, as they are unable to be certain about the future of their area. 

Robert Neill:  My hon. Friend makes a fair and important point. I remember a useful article written some months back by the right hon. Member for Wentworth and Dearne (John Healey), a former Local Government Minister. He said that sometimes the democratically elected local authorities are on the receiving end of judicial review, as well as themselves wishing to challenge decisions by central Government. 

Ian Paisley:  The hon. Gentleman makes some important points. There is example upon example of such things happening in Northern Ireland. We had the attempt to extend the runway in one airport being challenged by another airport, which prevented it. We have an application from John Lewis that has been at a standstill for about six years, with one developer opposing another. The longest-running planning case in my constituency took 12 years because of frustration and delay, with the National Trust pitched against the rest of the world, which wanted the application to go through. It was atrocious. 

Robert Neill:  The hon. Member for North Antrim is completely right. 

Mr Slaughter  rose—  

Robert Neill:  I will come to the hon. Member for Hammersmith in a moment, as he has already had a deal of time; let me deal with the intervention from the hon. Member for North Antrim first. He is right. What he outlines coincides with my experience, both over many years as a local councillor and in particular over the two and half years that I was in the Department for Communities and Local Government. Very often we

would find that underpinning such cases was a commercial rivalry of one kind or another. It is wholly unrealistic for the shadow Minister to suggest that that is not the case. 

Mr Slaughter:  The hon. Gentleman is wrong in his argument about developers. If a developer has a planning application turned down, he will appeal and it will go to a public inquiry. As for the residents, however, if the application is granted there is no third-party right of appeal. The Government studiously avoided putting that into the Localism Act 2011. The only recourse, therefore, is to appeal to the local authority or the Secretary of State; if they are effectively in cahoots with the developer, the only redress for local residents is through judicial review. That is why the two examples are completely different. 

Robert Neill:  The hon. Gentleman is obsessed with conspiracy theories. The simple fact is that I have had experience, as has anyone who has looked at the substance rather than the shadow of such matters—if I can put it delicately to the hon. Gentleman—of judicial review being used in parallel with statutory rights of appeal as well as separately. 

The right of a third party who is aggrieved by a grant of planning permission to use judicial review to object is preserved in the statutory instrument. We are not abolishing that right. If there is a genuine flaw in the decision-making process, that right still exists. It is perfectly logical for the same time limit to apply to both sides, and it is perfectly logical to have the same time limit for certainty as to the outcome of a planning application, whether it is challenged by judicial review or through the statutory route. 

Objectors will have had the statutory notification period, and a controversial case will undoubtedly have involved consideration and probably a lengthy debate in the planning committee. The strengthened provisions for pre-application consultation that were brought in under the Localism Act 2011 and the national planning policy framework give objectors considerable opportunity to develop their case. By the time a decision is taken, objectors will already have assembled the vast bulk of their argument on the merits. A six-week time limit for examining procedural flaws, which aligns with the statutory provision, is perfectly logical. I believe that that effectively demolishes the argument against the provisions. 

In relation to the procurement provisions, a statutory time limit was established in the Public Contracts Regulations 2006, which the previous Labour Government introduced. It seems to me entirely logical that, in the same way, an appeal under the statutory provision on the merits should be aligned with judicial review proceedings. The base material that might cause a challenge under either route is the same, so the aggrieved party will already have had an opportunity to get their tackle in order. 

In both cases, we are responding to the well founded concerns of practitioners—not necessarily legal practitioners, but practitioners in the field—about dealing with the commercial logistics that sometimes arise from delays to important procurement contracts, which can have significant adverse consequences for public authorities and the taxpayer. Certainty in contractual matters is important, just as it is in planning matters. 

I turn finally to the question of the oral review. I agree with my hon. Friend the Member for Northampton North that it would be bizarre to give a more advantageous test to the pursuer of judicial review than to an individual, such as he and I have represented in our past careers in the criminal courts, who seeks leave to appeal a sentence or a conviction. That is what the hon. Member for Hammersmith seemed to be arguing for. 

Heidi Alexander (Lewisham East) (Lab):  The hon. Gentleman mentions a bizarre situation; I find it quite bizarre that he, as a former Minister at the Department for Communities and Local Government, which professes to want to give residents more control over development in their neighbourhood, should be trying to make it more difficult for residents legitimately to question the decision or process involved in a planning matter. How does he square that circle? 

Robert Neill:  With respect to the hon. Lady, that is a rather bizarre analysis, which indicates that the Opposition are struggling a bit. First, the Localism Act 2011 makes it easier for residents to object at the pre-application stage. We have greatly strengthened the position of residents. The development of neighbourhood plans and the compulsory pre-application discussion greatly strengthen the position of residents. 

The hon. Lady is talking about a situation in which judicial review is taken by somebody who may be aggrieved at a grant of permission. That individual may be a resident, or they may be somebody else who has an interest, as my hon. Friend the Member for Northampton North said. Even they are a resident, the decision has been taken by the democratically elected local planning authority. 

My stance is entirely consistent with localism, because I believe that the planning decision for a community should be taken by their democratically elected representative, and that such a decision should be undermined by a decision of the courts only when there has been a significant and genuine procedural flaw in the decision-making process. The rules preserve that position, so the hon. Lady totally misses the point. 

I return briefly to the question of the oral review. It does not remove all right of challenge. On the contrary, there is still a right to submit on the papers. The ability to seek an oral review for a second bite of the cherry in the first instance—this is still before the High Court judge—is limited. All we are saying is that that cannot be done if the High Court judge has looked at the papers and said that there is no merit in the appeal. If an issue is marginal and the judge has not so certified, then okay—the person is entitled to go back and seek a normal hearing. In any event, even if the judge has said on the papers that the appeal is of no merit, that does not prevent someone’s going to the Court of Appeal on the papers. 

The idea that the measure is shutting off anyone with a genuine grievance is utterly misplaced. It is preventing the cynical use of review—often by groups with a more political than evidential interest in these matters—that many of us have seen prolonging and drawing out the process, time and time again. I saw that on all too many occasions as a Minister. 

Very often, local authorities that were acting in accordance with the wishes of their residents were frustrated. We have only to look at the difficulties that

Basildon district council had in relation to various unlawful Gypsy Travellers’ plans to see how dragging out the oral review process was really done to play the system, as my hon. Friend the Member for Northampton North said. 

Very simply, the Government are tightening things up. Those who have a genuine case to make can still take one forward. That is why I believe that this is a sensible and logical set of changes that I hope the Committee and the House will support. 

12.16 pm 

The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant):  It is a pleasure to serve under your chairmanship, Mr Bone. I welcome the questions posed by Members and the opportunity to debate these important changes to judicial review. 

Let me be clear from the start that the Government see judicial review as an essential means of holding public authorities to account, and it will continue to be so. However, we are concerned about the burden that weak judicial reviews brought against perfectly fair and legal decisions place on public bodies, the taxpayer and the wider economy. I am grateful to my hon. Friend the Member for Castle Point and to the hon. Member for North Antrim, who were able to give some good practical examples of some of the commercial frustrations that their constituents have had to deal with. 

Notwithstanding what the shadow Minister says about the extent of the problem, there are now more than 12,000 judicial review applications each year—more than twice as many as 10 years ago. Only one in six that are considered for permission are granted the right to a substantive hearing. 

The system for processing and defending weak cases places unnecessary costs on the court system and on public bodies, and it impedes important Government reforms. That is why, earlier this year, we introduced a series of proposals to reform the procedure for judicial review. In April, following consultation with a wide range of stakeholders and the senior judiciary, we set out the proposals that we intended to invite the Civil Procedure Rule Committee to take forward by way of amendment to the civil procedure rules. Following the consideration and agreement of that committee, the Lord Chancellor made the announcement by way of a written ministerial statement. 

The changes to the civil procedure rules were made by the statutory instrument that is the subject of this debate and which came into force on 1 July. The changes to the rules shorten the time limit for bringing a judicial review in certain planning and procurement cases, aligning them—as has been made clear—with the time limits in statutory appeals. That will help to reduce delays in important planning projects that are crucial for economic recovery and in procurement decisions that can be critical to Government and business alike. 

The rules were also changed to remove the right to an oral hearing on whether to grant permission to proceed where a case is assessed by the judge on the papers as being “totally without merit.” A claimant whose case is determined to be totally without merit will be able to appeal to the Court of Appeal by way of a paper application. That will help to reduce delays and costs by

targeting completely unmeritorious cases. I am grateful to my hon. Friend the Member for Bromley and Chislehurst, who provided a detailed explanation of the procedure at first instance and confirmed that if an applicant is unhappy with the decision, the route to the Court of Appeal stands. 

The procedural changes will not undermine the important role that the judiciary plays in holding Government to account, but we believe that they are necessary to help reduce the burden of high numbers of judicial reviews by filtering out weak, frivolous and totally unmeritorious cases at an early stage, while ensuring that arguable claims can proceed to a conclusion without delay. Indeed, the changes should assist with the quicker determination of stronger cases. I would have thought that that would have to be a good thing. 

It is true, of course, that the changes were not made by amending statute, but that is because little of the procedure for judicial review is set out in statute. Much is contained in the civil procedure rules, which lay down the procedure for the civil courts in England and Wales and are made by the Civil Procedure Rule Committee. As I have already said, the changes being debated today were made by the committee, amending the rules in the normal way—by means of a statutory instrument approved by the Lord Chancellor. The changes made to effect our policies were subject to the negative resolution procedure, as is normal for changes to the civil procedure rules. 

The instrument was made on 4 June, laid before Parliament on 10 June and, as noted earlier, came into force on 1 July, providing the usual 21-day period. Under that procedure, it is open for a prayer against to be made within 40 days of laying, and such a prayer is the reason for the debate today. 

I have dealt with some of the general issues regarding our rationale for the changes, and I want to pick up on two or three of the specific points made by hon. Members this morning. 

On the point about cases with a total lack of merit, which was raised by both the shadow Minister and the hon. Member for Birmingham, Yardley, whom I thank for responding to our consultation, the judiciary stated that it was supportive of the procedure and that it would be effective in filtering out weak cases early on while minimising the risk of injustice. It should be remembered—I have mentioned this a couple of times—that dissatisfied claimants can appeal to the Court of Appeal. 

The shadow Minister mentioned a variety of other issues. Unfortunately, I do not have time to deal with each and every one of them this morning; he touched on legal aid, standing and second consultations. I politely remind him that the Opposition have asked for a debate on this particular statutory instrument—No. 2013/1412. It was laid on 10 June and gave effect to proposals for JR previously consulted on, relating to time limits, oral renewals, and nothing else. I hope that my reply will not disappoint him, but I will not be talking today about standing, legal aid or any of the issues referred to in the second consultation. 

Finally, regarding the shadow Minister’s rather disappointing allegation that our proposals are just a crude political exercise, that is absolutely not the case. I know that he is a lawyer who has practised for many years. All of us who have practised know how important judicial review can be, but also how burdensome it can be. I want to make it very clear that the Government see

judicial review as a critical check on the power of the state, and it will remain so. However, it is also subject to abuse, and it stifles innovation, frustrates reforms and incurs unnecessary costs. We believe that our reforms will tackle the burden while monitoring the benefits of the rule of law and access to justice. I remind the Committee that the proposals have the support of the judiciary. 

Mr Blunkett:  Last time I was in a statutory instrument Committee with the Minister, she handled it graciously. The point that she is making would have resonance were it not for the fact that the Secretary of State engaged in a highly political rant. Therefore, the technical changes must be viewed in the light of what the Secretary of State said. There is no doubt in my mind that, in the past, judicial review has been misused. The hon. Member for Bromley and Chislehurst will remember the activism of Bromley Conservative council in the 1980s against the Greater London council, among other things. There is, therefore, a case for refining judicial review. However, my hon. Friend the Member for Hammersmith has made a point in the light of the way the Government presented the changes. 

Mrs Grant:  Of course I have considerable respect and high regard for the right hon. Gentleman, but I have to disagree with him. I do not accept that the Secretary of State made a highly political rant. He does not need to do that; he just needs to stand with the proposals, which have been consulted on and have the support of the judiciary. That is the position. I am sorry if the right hon. Gentleman has that impression, but I assure him that that is not the intention. We want to make things better; not worse. 

This is an important subject, and there were numerous opportunities to discuss the consultation document or the reforms—the Government were keen to seek views.

I am glad to have had the opportunity to talk about it today, and to provide further clarification. My right hon. Friend the Lord Chancellor and I are satisfied that the substance of the reforms is entirely in line with ensuring that judicial review continues to function as a critical check on the actions of the Executive and others, and that the proper processes that are laid down by Parliament are followed. I therefore commend the regulations to the Committee. 

Question put.  

The Committee divided: Ayes 11, Noes 7. 

Division No. 1 ]  

AYES

NOES

Question accordingly agreed to.  

Resolved,  

That the Committee has considered the Civil Procedure (Amendment No. 4) Rules 2013 (S.I. 2013, No. 1412). 

12.29 pm 

Committee rose.