Criminal Justice and Courts Bill

Shailesh Vara Excerpts

Tuesday 17th June 2014 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara)]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

Government new clause 13—Periods of time for certain legal challenges.

New clause 53—Application of provisions to environmental claims—

‘(1) Sections 55 to 60 of this Act shall not apply to judicial review proceedings which have as their subject an issue relating wholly or partly to—

(a) the state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b) factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of sub-paragraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making;

(c) the state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in sub-paragraph (b) above.”

This amendment limits the application of the provisions of this Act on judicial review proceedings which relate to the environment, in line with the definition of environmental information in the Aarhus Convention.

Government new schedule 3—Procedure for certain planning challenges.

Government amendment 1.

Amendment 23, page 55, line 12, leave out clause 55.

Amendment 24, in clause 55, page 55, line 16, leave out “must” and insert “may”.

Amendment 25,  page 55, line 18, leave out “not” and insert “decide not to”.

Amendment 26, page 55, line 20, leave out “highly likely” and insert “inevitable”.

Amendment 27, page 55, line 31, leave out “highly likely” and insert “inevitable”.

Amendment 28, page 55, line 32, leave out “must” and insert “may”.

Amendment 29,  page 55, line 35, leave out

“conduct (or alleged conduct) of the defendant”

and insert “procedural defect”.

Amendment 30,  page 56, line 15, leave out

“conduct (or alleged conduct) of the respondent”

and insert “procedural defect”.

Amendment 31, page 56, line 19, leave out “highly likely” and insert “inevitable”.

Amendment 32,  page 56, line 21, leave out “must” and insert “may”.

Amendment 33, page 56, line 28, leave out clause 56.

Amendment 34, page 57, line 25, leave out clause 57.

Amendment 35, page 58, line 2, leave out clause 58.

Amendment 36, in clause 58, page 58, line 11, leave out subsections (4) and (5).

Amendment 51, page 58, line 11, leave out subsections (4), (5) and (6) and insert—

‘(4) On an application to the High Court or the Court of Appeal by a relevant party to the proceedings, the court may order the intervener to pay such costs as the court considers just.

(5) An order under subsection (4) will not be considered just unless exceptional circumstances apply.

(6) For the purposes of subsection (5), exceptional circumstances include where an intervener has in substance acted as if it were the principal applicant, appellant or respondent in the case.’

Amendment 37,  page 58, line 18, leave out “or (5)”.

Amendment 38, page 58, line 34, leave out clause 59.

Amendment 42, in clause 59, page 58, line 41, leave out

“only if leave to apply for judicial review has been granted”

and insert

“at any stage of the proceedings.”

Amendment 39, page 59, line 32, leave out subsections (9) to (11).

Amendment 40, page 60, line 11, leave out clause 60.

Amendment 44, in clause 60, page 60, line 29, leave out “must” and insert “should normally”.

Amendment 41, page 60, line 31, leave out subsections (3) to (5).

[Mr Vara]

May I say at the outset that I propose to speak first to the Government amendments and then to let hon. Members speak to their amendments, to which I will reply at the end of this debate?

Clause 62 creates a permission stage for statutory challenges under section 288 of the Town and Country Planning Act 1990 in relation to English matters. In Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) tabled a number of technical amendments that sought to tidy up and harmonise procedures across the planning regime. I responded that we needed more time to properly consider the amendments.

Following further consideration and discussions with my hon. Friend and the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Grantham and Stamford (Nick Boles), who has responsibility for planning, the Government now seek to advance proposals to extend the permission stage to other planning-related statutory challenges; to simplify procedures to enable challenges to costs awards connected to some planning and listed building decisions to be challenged as part of the same application; and to standardise the start time for various planning-related statutory challenges.

Amendment 1, new clause 52 and new schedule 3 omit clause 62 and replace it with a new clause and schedule that set out where leave of the court is required to bring planning-related statutory challenges. The amendments to section 288 of the Town and Country Planning Act that were originally set out in clause 62 affected only challenges to decisions concerning English matters. The amendments in this new schedule are broader, ensuring that the leave requirement applies in all section 288 cases.

The new schedule also requires leave of the court before challenges can be brought to a range of planning-related decisions, orders, actions and documents. It will affect section 287 of the Town and Country Planning Act 1990, which relates to challenges to decisions concerning simplified planning zones, highways and rights of way orders, and relief of statutory undertakers from obligations. It will also affect section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990, which concerns challenges to listed building consent procedures; section 22 of the Planning (Hazardous Substances) Act 1990, which relates to challenges to hazardous substance consent decisions; and, finally, section 113 of the Planning and Compulsory Purchase Act 2004, which relates to challenges to development plans.

It makes sense to have consistency across these different types of challenges and I am grateful to my hon. Friend the Member for Bromley and Chislehurst for bringing the issue to my attention. I agree with him that requiring leave in some types of cases but not in others could create difficulties for the new planning court, at a time when we are trying to make things simpler and speed up planning cases. The efficiency of the court system is a matter for Government to consider across both England and Wales, and these amendments apply to the whole jurisdiction.

New clause 52 and new schedule 3 also permit challenges to awards of costs relating to planning and listed building decisions to be brought as part of the substantive challenge under section 288 of the Town and Country Planning Act or section 63 of the Planning (Listed Buildings and Conservation Areas) Act.

At the moment, when an award of costs is made, it can be challenged only through an application for judicial review. That is separate to the application for statutory review of the substantive decision. Allowing costs to be challenged as part of the section 288 or section 63 challenge would remove the need for an aggrieved party to make two separate applications to the High Court and pay two separate filing fees.

New clause 13 standardises the date from which various challenges may be brought to the day after the relevant decision has been made. Planning challenges have to be brought within six weeks. Moving the start time to the day after the decision date is consistent with the approach taken in the civil procedure rules for judicial review claims. This is a harmonisation measure designed to assist in the smooth working of the new planning court and to reduce the scope for error by claimants.

I urge the House to accept amendment 1, new clauses 13 and 52, and new schedule 3.

--- Later in debate ---

[Julie Hilling]

I thank the right hon. Gentleman for his intervention, but he puts forward a false position. In this House, I can speak on behalf of my constituents and attempt to get Ministers to act on their behalf, but I cannot overthrow the rule of the court. We can of course attempt to change the law in future cases, but it is judicial review that enables our constituents to have recourse to justice, ensuring that justice works on their behalf, not just on behalf of the state.

I wanted to give a number of other examples of where judicial review has been used, but I will instead finish by saying that the Government should be ashamed that they are taking these steps to limit even further access to justice. They are further limiting the ability of the ordinary person to challenge the state and to say, “Actually, you’ve got it wrong on this occasion.” We will have better law and better justice if we do not curtail access for those who need it the most. I am most concerned about the little people at the bottom who will, thanks to these measures, not be able to access justice. I hope that the Government will see reason and accept our amendments. If they want to ensure that we continue to have a civilised society, they must support access to justice, and they must support David against Goliath.

[Mr Vara]

I thank all those who have contributed to the debate, and I hope that I can put on the record at least some of the points that I wish to make before the clock runs out at 2.39 pm. I thank my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) and, through him, the legal fraternity for all their help in ensuring that we have tidied up some matters relating to planning.

--- Later in debate ---

[Mr Slaughter]

I hope that the Minister will not read a prepared speech but address a subject that was raised in the debate, which the hon. Member for Halesowen and Rowley Regis (James Morris) rather gave away, namely that the clauses remove the existing balance in the system and weight it in favour of the stronger party. Rather than talking to the chief executive of the local authority, why does the Minister not talk to the care home resident, the small business that is being pulled down because of planning regulations or the homeless person who is not being taken in? Those are the people who are disadvantaged. They are not meritless cases, but people who do not have the necessary resources.

[Mr Vara]

I am addressing the issues concerned. I am sorry that the hon. Gentleman does not like them, but that does not mean that I will not address them. As for making proper speeches, given the personal attacks that he made when he spoke, perhaps he should have better regard for the etiquette of the House. I will not take any lectures from him.

Amendments 29 and 30 probe the scope of clause 55. In practice, the clause will bite on minor procedural defects, because more significant defects will not be highly unlikely to have made a difference to the outcome for the applicant. There is no accepted definition of “procedural defects”, and it would be virtually impossible to arrive at a definition that would stand the test of time because judicial review evolves with each new decision.

Clauses 56 to 61 will rebalance the financial aspects of judicial review. Those involved in bringing judicial reviews should not be able to hide behind a claimant of limited means or an off-the-shelf company to avoid appropriate liability at the taxpayer’s expense. I do not accept that clauses 56 and 57 will prevent meritorious judicial reviews from being brought. As now, non-party funders will be liable only where they also seek to drive or control the litigation in some way.

Clause 58 establishes two presumptions concerning persons who voluntarily intervene in a judicial review: first, that the court must order an intervener in judicial review proceedings to pay their own costs; and, secondly, that the court must order the intervener to pay the reasonable costs that their intervention has caused a party to incur. Where there are exceptional circumstances, the court need not make an order. Amendment 35 would remove the clause in its entirety, and amendments 36 and 37 would remove the second presumption. Amendment 51, which draws from the Supreme Court rules, would allow the court to award costs against an intervener only in exceptional circumstances.

The first presumption—that an intervener will pay their own costs—represents the current position. Interveners already almost invariably cover their own costs. On the second presumption—that an intervener will pay costs they cause a party to incur—it is right that all interventions should be carried out appropriately and reasonably. The Government share the view that interveners add value to proceedings, and clause 58 is not intended to prevent interventions. However, those who intervene should properly consider the cost implications of doing so.

I know that the clause has caused some disquiet and I agreed in Committee to consider further the second presumption, having listened carefully to the points made, particularly those by my hon. Friend the Member for Cambridge (Dr Huppert). I wish to record my gratitude to him for his assistance, and I believe his proposed amendment reflects, in part, what we want to achieve. Although we are not in a position to accept the amendments, we are looking seriously at how to ensure that interveners consider carefully the cost implications of intervening, without deterring those who intervene in appropriate cases and add value. I am happy to commit to continuing discussions to consider further whether the clause needs to be redrafted to target the specific behaviours that we want to address.

Clauses 59 to 61 establish a codified costs capping regime in judicial review proceedings, building on the regime that has been developed by the courts through case law. The usual costs position should be circumvented only in exceptional, meritorious cases involving serious issues of the highest public interest that otherwise would not be taken forward. We are concerned that costs capping orders can currently be made at any stage of a case. If an order is made at an early stage and a judge later decides that the case has no merit and does not grant permission for it to go any further, the claimant will be protected from having to pay the defendant’s costs of defending that unmeritorious claim.

A number of points have been raised by colleagues. I simply say that with judicial review, we are trying to ensure that meritorious claims go ahead. It is unmeritorious claims that we are trying to deal with, such as those where people hide behind a shelf company, or where people front an application for other individuals who are actually behind it and driving it. We want to maintain judicial reviews for meritorious cases, but we want to ensure that unmeritorious claims are dealt with appropriately. We also want to ensure proportionality by making those who wish to intervene take account of the costs, particularly when some of those costs are to be borne by others.

Question put and agreed to.

New clause 52 accordingly read a Second time, and added to the Bill.



New Clause 13

Periods of time for certain legal challenges

‘(1) In section 61N of the Town and Country Planning Act 1990 (legal challenges relating to neighbourhood development orders)—

(a) in subsections (1)(b) and (2)(b), after “beginning with” insert “the day after”;

(b) in subsection (3)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”.

(2) In section 106C of that Act (legal challenges relating to development consent obligations)—

(a) in subsection (1)(b)—

(i) for “during” substitute” “before the end of”;

(ii) after “beginning with” insert “the day after”;

(b) in subsection (1A), after “begins with” insert “the day after”;

(c) in subsections (2)(b) and (3)(b)—

(i) for “during” substitute” “before the end of”;

(ii) after “beginning with” insert “the day after”.

(3) In section 13 of the Planning Act 2008 (legal challenges relating to national policy statements), in subsections (1)(b), (2)(b), (3)(b), (4)(b), (5)(b) and (6)(b)—

(a) for “during” substitute “before the end of”;

(b) after “beginning with” insert “the day after”.

(4) In section 118 of that Act (legal challenges relating to applications for orders granting development consent)—

(a) in subsections (1)(b), (2)(b) and (3)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”;

(b) in subsections (4)(b), (5)(b) and (6)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “day”, wherever occurring, insert “after the day”;

(c) in subsection (7)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”.” —(Mr Vara.)

The provisions amended by the clause allow for legal challenges to certain planning-related decisions and other actions. They stipulate that a challenge may be made during a period of six weeks beginning with the day on which the decision or action challenged occurs. The amendments secure that the six-week period does not start to run until the following day

Brought up, read the First and Second time, and added to the Bill.