Former government lawyers fail to approve Grayling's reforms to judicial review

The Lord Chancellor Chris Grayling has succeeded in forcing through his controversial proposals to the Criminal Justice and Courts Bill after making two late concessions to parliament.

A five-hour debate in the House of Lords in October resulted in a heavy defeat for the government's plans to limit the ability to challenge public decisions via "ill-founded" judicial review proceedings.

In December, during the ping-pong stage of the Bill, Grayling was forced to admit to misleading the Commons having "inadvertently" suggesting clause 64 of the Bill contained a provision for the court to grant permission for judicial review in situations where conduct was highly likely to have not made a difference in "exceptional circumstances".

The justice secretary was successful in the latest Commons vote after agreeing to give judges the final word on whether to grant judicial review, and for a judicial committee to decide when those who assist in funding cases should be identified.

Commenting on the concessions, Grayling told the Commons: "The Bill protects public bodies against cases brought on a technicality. The reforms are not designed to undermine the core purpose of judicial review.

"They will ensure that we apply common sense to the process, and that decisions are taken by the courts only when appropriate. They will ensure that public bodies cannot be in effect blackmailed by a judicial review, and that campaign groups cannot use judicial review to string out a process or to delay change to make a political point."

However, several high-profile government lawyers abstained from the vote, including former attorney general Dominic Grieve who explained that he remained unpersuaded that the amendments would not "excessively fetter judicial discretion".

"Obviously, it leaves a measure of discretion to the judiciary, but one that is in my view nevertheless correct," said Grieve. I will need a lot of persuading that the route he is currently taking is not excessively restrictive. For that reason, I cannot support it at the moment."

Grieve was joined by the former solicitor general Edward Garnier who, while admitting that he agreed with what the Lord Chancellor was trying to accomplish, said he suspected Grayling was "trying to pot the wrong ball".

"Suppose he allowed himself to step back a bit from 'exceptional public interest' - a moderately nonsensical expression, if I may say so - and consider the issue from a different angle. He will come at the right answer, which is the political answer that he and I want to achieve, and the Treasury answer that he has been invited to achieve, and we can then adjust the system of judicial review so that footling, silly cases that for some reason may have slipped through the net."

Garnier continued: "I encourage the Lord Chancellor to have one more think about this issue, because at the moment I am not prepared to vote for the government on it. I will abstain rather than vote against the government, but I urge him to think about some way of bringing me into the lobby."

The Bill was still not without criticism with the shadow justice minister Andy Slaughter commenting: "On the basis of our LASPO experience, I urge caution in accepting any assurance from this government that they have made genuine concessions. The proposed amendments are even less satisfactory. I think that the Lord Chancellor will concede that he has not acquitted himself well in explaining the purpose and effect of this part of the Bill to the House."

The Bill will now pass back to the House of Lords.

John van der Luit-Drummond is legal reporter for Solicitors Journal

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