news comment: Pannick demolishes Grayling over JR reforms
Beleaguered legal aid lawyers had a rare opportunity to cheer during the extended ping-pong battle between the House of Commons and House of Lords over the Criminal Justice and Courts Bill. The lords, led by cross-bench peer and QC David Pannick, had raised concerns about a number of the bill’s provisions, including the changes to judicial review.
In an article in the Telegraph to launch his proposals in April last year, Lord Chancellor Chris Grayling had talked of the judicial review process being hijacked by pressure groups unhappy with the decisions taken by the government. He tried to sell the reforms to a jittery House of Commons, by arguing that his changes to the rules on bringing judicial reviews were merely to prevent unnecessary legal challenges based on ‘relatively minor procedural defects’ in consultation processes. Few with any knowledge of the law, including many MPs on the government’s benches, believed him, fearing that the provisions would have a much wider impact. However, when the reforms reached the Lords, Grayling’s earlier attempts to win over doubters with reassurances over the impact of the changes would come back to haunt him.
Due to the concerns of parliamentarians, Grayling was forced to fight a rear-guard action to preserve his proposed changes outlined in the Criminal Justice and Courts Bill. Peers were particularly exercised by the proposal to introduce a pre-determination at the permission stage of JR proceedings, where cases would not be able to go ahead if it were ‘highly likely’ that the decision of a public body would not be over-turned. At a late stage, the government introduced an amendment to try to allay their fears. This was after the Lord Chancellor had been forced to admit he had earlier misled the Commons by saying the provisions gave judges discretion to grant permission for a review, even when the original decision was unlikely to be overturned, in exceptional circumstances. No such provision existed.
The amendment permits a judge to allow a judicial review to proceed in these circumstances, if they believe there is an ‘exceptional public interest’ in doing so. Pannick criticised the measure for not being more generously worded, but acknowledged that it at least established the principle that judges should decide how the test applies. In a brilliant piece of legal political argument, though, in his speech accepting the amendment, he used Grayling’s own case for reform against him. He reasoned that the courts would need to heed Grayling’s explanations for the rule change in applying the new test: ‘The judges will be able to say – and I hope they will – that the statutory purpose here is the very limited one identified by Mr Grayling of striking out judicial reviews which raised what he describes as relatively minor procedural defects.’
It is to be hoped that the courts will interpret the law in the way that Lord Pannick suggests, as it would effectively lead to little change in the cases currently permitted. The act received Royal Assent on 12 February, but concerns remain about the detail of the legislation, which includes an attempt to curtail third parties intervening in proceedings by making them potentially liable for costs.
Grayling: misled Commons over JR reforms
The episode has damaged Grayling’s already low reputation among lawyers. More significantly for him, the controversy has diminished his standing among his fellow politicians, as parliamentarians really don’t like being misled, and being out-witted so publicly is simply humiliating. Our battered Justice Secretary is perhaps looking forward to the general election more than most of his cabinet colleagues, so that he can escape the burdens of his current office, especially the responsibility of dealing with clever lawyers like Lord Pannick.