Andy Slaughter
MP for Hammersmith and Chiswick · Labour · United Kingdom
“I welcome the Bill, and thank the Government for introducing it and bringing it back to the House before the summer recess. It is the result of years of committed campaigning, led by the families of the victims and survivors of Hillsborough.”
“I know that case means a huge amount to the hon. Lady as a constituency MP, and I thank her for all the work she does on the Justice Committee. I think we have only begun to scratch the surface. This Bill will be a transforming piece of legislation. I will make one final comment.”
“This would be a new, independent public body that collated, analysed and followed up on the conclusions and recommendations made after official investigations into deaths and state failings, in order to improve oversight and implementation of them.”
“I think I have taken enough time, but I thank the Member for that intervention. This afternoon, the Justice Committee signed off a new major report on legal aid, which will be published on Friday. Those who are interested can read more there.”
“In the time that I have, I will focus my remarks on clauses 1 to 16, which create a new appeals body for immigration and asylum cases known as the independent immigration appeals authority.”
“From that visit, our diagnosis was that these are operational problems. There are two key questions for the House: will the IIAA fix the problems with the current system, and will it be truly independent from the Home Office?”
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“I do not think that it does. The issue has been raised several times, including today and in the statement, of non-cladding defects in buildings above 11 metres. I am not clear whether these will all be covered, yet all these things represent clear and present dangers of fire and fire spread. What about tall buildings that are not specifically residential, such as hospitals and hotels, but still pose risk to people, including vulnerable people, who sleep in them? What about buildings below 11 metres, which, either because they are of a particular construction or because of their use—for example, care homes and schools—also pose risk? We have heard nothing of that either. This is an example from my own borough, and it is not a rare example. There are often developments where there are interlinked buildings above and below 18 metres.”
“Let me give, in just a few minutes, a non-exhaustive list of the issues that I either still cannot comprehend or know are not properly covered in the Bill. We started off with the building safety fund applying to buildings over 18 metres tall, and that was extended to one type of cladding, aluminium composite material cladding, and then to another, hydraulic power unit cladding. We have now had a recent announcement from the new Secretary of State—I hope I have understood this correctly—that there will be a request to private developers to provide £4 billion, with a veiled threat of enforcing that in some as yet unspecified way, in order to deal with buildings between 11 and 18 metres. I am not even sure whether this covers all types of cladding and external wall issues. Does it cover wooden balconies or wooden panelling, for example?”
“Grenfell led to the identifying of many faults, including external cladding, poor management, poor construction and maintenance, and the people who live in social housing in particular not being taken notice of. It also made us look at the whole issue of fire safety, which is what the Bill purports to do, and in that way Grenfell opened the door on many other issues as well. If the speech of the Minister who opened the Third Reading debate was reflected in the Bill, I would be delighted, because he announced it as a tour de force, or a tour de raison, and said that it would resolve all the issues, but it just does not. The Government’s approach has been piecemeal. It is the proverbial Swiss cheese, still full of holes, and there is a great lack of clarity. I say that with no pleasure at all.”
“There is not an issue before this House that causes me as much concern as the safety of residents living in high-rise blocks from the risk of fire. That has been the case since August 2016 when there was a very serious fire at Shepherd’s Court in my constituency, which I spoke about earlier today. Fortunately, there were no casualties, but a full evacuation of an 18-storey block was required. Then, 10 months later, we had the fire at Grenfell, the absolute horror of which stays with me every day. Grenfell is only about a mile from where I live, and for 72 people to lose their lives in those circumstances is just so appalling that we cannot spend enough time, or do enough, to ensure that that never happens again in the future. Yet we have had other serious fires since that time.”
“The Secretary of State has been asked by both sides of the House about protecting social landlords and tenants from remediation costs. Will he answer that point, bearing in mind that the biggest social landlords have said that their new housing programmes will be cut by 40% over the next five years if they have to cover fire safety costs themselves? Affordable housing is at particular risk, as yesterday’s fire in New York showed. Will he study the lessons from that fire, especially as some of the victims were on the lower floors, which he appears to say are at lower risk, and that lack of compartmentalisation rather than cladding was the cause of most of the deaths?”
“The Attorney General, having recently expressed full confidence in the director of the SFO, has belatedly announced an inquiry, but the Attorney General superintends the SFO and her office line-manages the director, so will the Solicitor General confirm that this inquiry will be fully independent so that it can examine the Attorney General’s own role in this fiasco as well as that of the SFO and the director?”
“Thank you very much, Mr Speaker. It is a pleasure to be shadowing the Solicitor General—we have missed him in Shepherd’s Bush. Last month the Court of Appeal ruled the conviction of Ziad Akle, prosecuted by the Serious Fraud Office, unsafe because there was a material failure of disclosure that significantly handicapped the defence. The court described this as a serious failure by the SFO to comply with its duty and said it was particularly regrettable given that some of the documents withheld had a clear potential to embarrass the SFO. It is difficult to imagine a more damning series of judgments on a prosecuting authority.”
“Around 200 Afghan constituents have contacted me since August. In the main, they have either dependents stuck in Afghanistan or relatives who are at serious risk because they worked in support of coalition forces but do not qualify under the restrictions of the ARAP scheme. Can the Minister explain how those groups will be helped by her scheme? To me, and I suspect to them, it looks like a brick wall.”
“This is the third or fourth attempt by successive Tory Governments to fillet the Human Rights Act, and it is no more coherent than the ones that were abandoned. We know that it is intended to pick on what are perceived as the easier or unpopular targets, but it will mainly disadvantage ordinary citizens of this country who are victims of unlawful decisions by the state. It purports to repatriate powers from Europe, but we are rightly staying in the European convention on human rights, so more decisions will go to Strasbourg. Judges will no longer be bound by the decisions of the European Court of Human Rights, but they are not now. Will he take the opportunity of the consultation to look at that again and see whether the measures are coherent in any way?”
“That is not being addressed because it will not be included in the inquiry, and the Minister will not establish a full inquiry. He needs to order that now. A BBC series on this issue is starting on 3 January; it is not going to go away. He is entitled to his view that the Met is not institutionally homophobic—I would take a different view—but he is not entitled not to investigate that and to sweep this issue under the carpet.”
“The Minister’s response to the urgent question from my right hon. Friend the Member for Barking (Dame Margaret Hodge), which should have been a statement from the Home Secretary, is extremely disappointing. I have dealt with the Met for more than 30 years, as a lawyer and as a politician, and I can remember few cases as serious as this, both because of the callous incompetence of the investigation and because of the consequences in the loss of lives of those young men. All I have heard from the Minister today, and from the senior members of the Met—London MPs are just about to go to talk to them—are platitudes. I have heard platitudes specifically because they will not address the homophobic nature of these murders.”
“Secondly, are the mechanisms there to ensure that the prosecuting authorities are able to enforce these notices and that they do not just become pieces of paper that people can disregard?”
“However, it comes with a whole raft of other changes, such as single justice procedure, where there is less scrutiny of offences, less of an opportunity to have one’s day in court and less public access to the justice system. All of those are risks with fixed penalties. Often these are emotive, quite serious offences. I understand that the fixed penalty notices are intended to deal with those at the lower end, but I wonder if the Minister could say something about this. Could she give us reassurance that, for somebody who believes they are wrongly being given a notice, there will be a proper and clear course they can take that will lead to a judicial process?”
“If time goes by and they are not enforced, the period in which they may be enforced elapses. What I am concerned about is not that fixed penalty notices are being proposed for use; it seems a suitable use. I am concerned about our experience of them at the moment. I entirely understand why the Government want to use them. There is huge pressure on the criminal justice system. The backlog, not only in the Crown court but in the magistrates court as well, was very large before covid. It is now extremely large indeed, and it is not timetabled to come down over any short period of time. I absolutely understand why the Government would look to fixed penalties as a way of trying to deal with the backlog and relieve some of the pressure.”
“It is a pleasure to serve under your chairmanship, Mr Twigg. I congratulate the hon. Member for Romford on the Bill, and I entirely support its principle. I have a brief question for the Minister on the use of fixed penalty notices. They are increasingly being used to do the heavy lifting in the criminal justice system. They clearly have a function, and it is clear what the intended function is here: to fill a gap. The experience with fixed penalty notices over recent years, particularly during covid, has not been a good one on either side. For the Ministry of Justice, if there is not proper recourse to a judicial process, that contains many risks for the alleged offender. On the other hand, if fixed penalty notices are used and not followed up, one gets into the situation where they are issued and there is no consequence.”
“Many constituents have contacted me today outraged by the antics at No. 10 Downing Street. One, a young man of 14, was unable to attend the funeral of his much-loved grandfather during last Christmas’s lockdown. He wants me to ask the Government this: is the Prime Minister heartless and cruel enough not to tell the country the truth and apologise to us all? How will the Secretary of State, at this crucial time, regain the trust of my constituent and that of millions of others that the Prime Minister has lost by his disgraceful conduct?”
“I congratulate my hon. Friend on his Bill. Does he agree that it is a scandal that artists are getting perhaps a quarter of what the big record labels are getting from streaming services? As my hon. Friend the Member for Chesterfield (Mr Perkins) said, we are not talking only about the stars, but about people such as music students looking for a career in music, as well as songwriters and performers. Many in my constituency, where the cost of living is extremely high, are getting no money and they have just had a terrible two years.”
“My local hospitals, Hammersmith and Charing Cross, and their staff are under huge pressure. Until two years ago, the Government’s plan was to demolish Charing Cross hospital, so it is a welcome U-turn that it and Hammersmith hospital are now in the creatively titled 40 new hospitals programme. Leaving aside the fact that Charing Cross has been around for more than 200 years and is thus not really a new hospital, all my constituents want to know is how much investment there will be and when it will finally arrive.”
“It really was a pleasure not only to know him but to see how effective he was as an operator in Parliament. We will all miss him. I know that you will particularly, Mr Rosindell, as a friend. We will all miss him as a friend, a colleague and a wonderful parliamentarian.”
“Further to that point of order, Mr Rosindell. May I associate the Labour party with the remarks of the Minister and Conservative Members about Sir David? I commiserate with the Members of the 2019 intake—because of covid, they probably did not get a chance to know him. But they would have got to know him pretty quickly, with us all being back here. As somebody from a very different political tradition, I worked very closely with him for the last five years through his chairmanship of all-party parliamentary fire safety and rescue group, which was astonishing. We all know that all-party parliamentary groups have a multitude of successes and failures. That was an astonishingly powerful and well-organised body, particularly in the wake of Grenfell.”
“Of course, Parliament is supreme, and there may be a case for looking at the propriety of certain Supreme Court decisions or changing the way that judicial review works, but this is not the proper way to enact measures of such constitutional significance. The bottom line is that if Parliament wishes to modify or overturn legal decisions as significant as those highlighted here, it should do so through a proper and full debate, with a full consultation beforehand, so that it can benefit from a wide range of expert views. Parliamentarians should be empowered to make proper, informed decisions. These rushed provisions undermine the parliamentary process and threaten ill-considered constitutional reforms, with unknown consequences.”
“Gentleman intends is still there, so I will respond to new clause 3 and, in due course, to new clause 5, and say to the Minister that it would be wrong to accept the new clauses, partly because of what they say and partly because of the way they are being introduced at this stage; they should really have come through the usual processes. That is to say nothing about the right of the right hon. Gentleman to table them now to raise the issue. Nevertheless, the provisions are being put to the Committee at a very late stage. The way in which they were tabled leaves no time for substantial parliamentary engagement or the required serious consideration of their merits.”
“Member for South Holland and The Deepings puts himself more in the vindaloo than the korma camp with his comments, but I note that the new clauses that he has tabled are a subset of those in the Policy Exchange document, to which he referred, by Professor Ekins, who was one of the witnesses who gave evidence to the Committee. That document was a very powerful concoction indeed, because it contained 20 suggested new clauses or amendments, which were whittled down to seven on the amendment paper. After excluding those that were not in scope, we are down to two. None the less, the import of what the right hon.”
“The bizarre comparison was made in the context of the Judicial Review Bill, inherited by Mr Raab from Mr Buckland, which aims to clip the wings of the Judiciary over the extent to which they can rule on political decisions, such as Boris Johnson’s suspension of Parliament during Brexit negotiations in 2019.” I will not go on, partly because the article contains some unparliamentary language, and in fairness to the Justice Secretary it ends with the immortal line: “A source close to Mr Raab denied that he had ever compared himself to a vindaloo curry.” The right hon.”
“The right hon. Member for South Holland and The Deepings takes us back into the important constitutional territory with which he started his consideration of the Bill. He also, knowingly or not, revealed something about his taste in curry. For those who are looking slightly amiss about that, I refer to the opening paragraph of the article concerning the Bill that appeared in The Mail on Sunday , which said: “The Justice Secretary, Dominic Raab, regards himself as a spicy ‘Vindaloo’ politician compared to the bland ‘korma’ represented by his predecessor, Robert Buckland, sources in his new ministry have told the Mail on Sunday.”
“I am grateful to the right hon. Gentleman, who made several points there. I am coming on to deal with each of them. I suspect that his new clauses and comments are directed as much—if not more—to his own Front Benchers as to me in putting that marker down, but the Government must have taken some care with the long title of the Bill, which is tightly drawn. Obviously, I do not question the wisdom of the Clerks, but the two new clauses we are debating this afternoon have squeaked through because the long title clearly identifies what is in clauses 1 and 2. With all respect to the other place, and there are more stages still to go, it is not just the deliberation in both Houses that is important when discussing constitutional matters.”
“The new clauses try to address significant, complex areas of law in an overly simplistic way, and many of the apparent problems these new clauses seek to resolve are more complicated than the proposals seem to believe or understand. The rules on evidence disclosure, for example, have developed so that disclosure is tailored in each case to ensure that justice is done, whereas the new clauses take a blunt hammer to this sophisticated scheme. Unfairness is therefore inevitable. The solutions are blunt and may lead to unintended consequences. Although several of the new clauses have been found to be out of scope, they amount to an attack on our constitutional balance. The result would be a great reduction in judicial protection, the disempowerment of aggrieved citizens and a Government who are unacceptably insulated from scrutiny.”
“The measures being taken forward by the Government in this Bill were preceded by extensive consultation and engagement with experts and stakeholders. That includes the work of the independent review of administrative law and contributions from across the sector, including the judiciary. The same cannot be said of these new clauses. In fact, the majority of experts and the Government themselves rejected some of the very measures they propose. For example, the changes to the disclosure duty in new clause 5 were considered but ultimately rejected by the independent review of administrative law. The Government agreed at the time that the reforms were unnecessary.”
“That is enough, apparently—according to the Minister. Having gone through that process, the Government decided to push forward with focused reforms to Cart judicial reviews to modify the nature of discretionary remedies only. This new clause, and indeed new clause 5 and the other new clauses that were not selected, would go much further. If these proposals were being taken seriously, they would be headline provisions in the Bill, not underdeveloped addendum clauses introduced without proper consideration and in their current form. It is inappropriate to being these measures into force as proposed. The new clauses are not supported by, and in some cases go directly against, expert analysis or wider consultation.”
“Absolutely. Parliament is supreme and can will what it likes. That is very clear. Where the balance lies is what is in dispute here. The question is the appropriate role of the judiciary, which is exactly how the doctrine of judicial review has developed.”
“Furthermore, judicial review is an integral part of the UK constitution based on parliamentary sovereignty, ensuring that there is a means to address injustices and abuses of power. It exists separately and in addition to the Executive’s political accountability to Parliament. Ouster clauses risk undermining the effectiveness of judicial review as a means of legal scrutiny of the Executive. No matter how unpopular the cause or the claimant, the rule of law still applies and the Executive should not be able to go beyond their legal limits without the potential for accountability in the courts. In fact, it is precisely for such claimants that judicial review is so crucial.”
“The first thing to note is that there is immediate uncertainty around those exceptions and how they might operate. There is already a problem with the Cart ouster in the main section of the Bill, and I have spoken at length about that in previous sittings. That uncertainty would only be multiplied by this new clause. Judicial review is an essential constitutional remedy, and attempts to introduce and proliferate ouster clauses, as this new clause seeks to do, risk undermining the UK’s constitutional framework and the protection against abuses of Executive power. Judicial review is generally available only where there is no other recourse to an alternative remedy. The effect of ouster clauses is therefore often to shut down all routes to challenge a decision, even if the decision has been based on a misinterpretation of the law.”
“As I have said, this would insert a second ouster clause in the Bill and would be a concerning addition to the restriction of Cart judicial reviews. The new clause includes similar exceptions—bad faith, fundamental procedural defect and so forth—to the ouster in Cart, but crucially they are even narrower than those in clause 2, in that the exception of where the court has acted “in fundamental breach of the principles of natural justice” has been removed. The more restrictive exception of where the court acts in a way “that constitutes a fundamental procedural defect” has been added. The trend suggested is extremely concerning and risks having a serious impact on the ability of individuals to retain redress, not to be subject to unlawful exercise of power, and to hold the Executive to account.”
“I am perfectly open to arguing those issues, but the point is that we happen to disagree: these measures are wrong, and that is what we are going to debate this afternoon. Let me talk more specifically about new clause 3. The new clause would effectively overturn the decision in the Privacy International case by excluding judicial review of the Investigatory Powers Tribunal subject to a number of limited exceptions that broadly, although not exactly, mirror those in clause 2. That means that judicial review would be excluded except where the High Court must consider whether the tribunal had a valid case before it; was properly constituted to hear the case; or acted in bad faith, with actual bias, corruption or some other fundamental procedural defect.”
“No, and even the vindaloo version—the full Ekins version—does not attack the doctrine of judicial review. It is saying that the courts sometimes resolve matters procedurally and sometimes, in relation to specific judgments, the court has got it wrong and it is Parliament’s job to overrule, which Parliament is entitled to do. At the end of this legislative process, Parliament will have made those decisions. What we are debating now is what is or is not appropriate. Specifically, we are debating two discrete issues. The first is the decision in the Privacy International case against the Investigatory Powers Tribunal and whether an ouster should be imposed, and the second is about rather more widespread issues to do with disclosure and witness evidence.”
“The amendment takes a sledgehammer to what should be a carefully crafted and sensitively considered issue. That, in my submission, is not the appropriate way to do good law making.”
“It should not be introduced as a last-minute addendum to an otherwise unrelated set of measures concerning judicial review remedies. This new clause as drafted will generate serious uncertainty. There is also a substantive argument here. In the Privacy International case, the Supreme Court essentially held that it is very difficult for the Government to completely close off judicial review—in this case, concerning decisions of the IPT. The Government should be very careful about reversing that decision: the immediate consequence would be to close off judicial review. If it is thought that the Privacy International decision should be revisited in the future, it should be ensured that parliamentarians are fully aware of any consequences of doing that, and perhaps some middle-ground solution that preserves access to justice could be tried.”
“It is therefore crucial that Parliament has sufficient time to carefully consider the consequences of restricting judicial review in this context, and this last-minute amendment does not afford that. Fundamentally—regardless of what anyone thinks about the merits of the Privacy International case—this is not the way to go about amending it, or even thinking about amending it. Parliamentarians will be asked to vote on what is in effect a very significant legal change, without any real appreciation of the possible effects and consequences and, as above, without the benefit of expert input through consultation and parliamentary examination. A provision such as this should be the headline measure in any Bill; it should be considered and debated seriously and properly; and anyone voting on it should have a full understanding of the issues.”
“Decisions and guidance from the courts can also help to improve policy development and decision making in Government. Judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making, and decision making in Government. Indeed, judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making and then also gives guidance on improving the processes in the future and encouraging good governance. The same applies to the Investigatory Powers Tribunal. The decisions of the Investigatory Powers Tribunal relate to potentially very significant Executive powers in the area of surveillance and privacy rights. In this context especially, the risk of a breach of the fundamental rights of individuals is high.”
“I am grateful for that intervention. I will come in a few moments to the powers of the Investigatory Powers Tribunal, so let us see whether that satisfies the right hon. Gentleman. In relation to the ouster in clause 2, I spoke about judicial review’s role in ensuring good and lawful administration, but as that issue has arisen again I wish to emphasise the point in this new context. Judicial review is an incentive to maintain high standards in public administration by public bodies, because the possibility of judicial review motivates decision makers to ensure that their decisions are lawful. Ouster clauses such as this one remove such motivation and, coupled with the removal of the means through with such decisions could be challenged, risk a decrease in the quality of Executive decision making.”
“I give full credit to the right hon. Gentleman, who has taken the new clause, important and substantial though it is, and turned it almost into a Queen’s Speech. We will have a second judicial review Bill, a repeal of the Human Rights Act 1998, and then a repeal of the Constitutional Reform Act 2005. The Minister will be a very busy man in the new year.”
“That would clearly be to the detriment of the parties and the wider public, and therefore should be resisted. It is also important to note that disclosure of evidence benefits not only the claimant but often the public body, by allowing the defendant public body to show that the decision taken was lawful. Defendant public bodies may also make applications for disclosure and/or oral evidence. Subsection (1) would reduce the ability for claimants to obtain disclosure, which is crucial for claimants to be able to bring a case as well as for defendants to be able to defend it.”
“It is unclear what adding a requirement of “compelling reasons” for ordering disclosures of evidence would do to the existing position. The current test, as set out by Lord Bingham in Tweed v . Parades Commission for Northern Ireland, is: “whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.” On one reading, that would be just an alternative translation of the existing position: a “compelling reason” for adducing oral evidence would be that it is “necessary” to do so. If that is the case, the proposed additional clause is a clear waste of time. However, if it is intended to be a stricter test to raise the threshold for which evidence is admissible, that is problematic in that it would operate to preclude disclosure of evidence required to resolve the case fairly and justly.”
“The new clause goes beyond oral evidence and imposes a bar on judges ordering disclosure of evidence. There is no formal disclosure duty on parties in judicial review proceedings, unless the court orders otherwise. Such orders are already rare and there are many examples of courts refusing applications for disclosure on the basis that they are not necessary. Indeed, the court will not countenance fishing expeditions, where an applicant for judicial review may not have a positive case to make against an administrative decision and wishes to obtain disclosure of documents in the hope of finding something to use to fashion a possible challenge. Where the disclosure power is used by courts, however rarely, it is vital: a judge will only ever order disclosure where it is necessary for the fair resolution of the case.”
“Oral evidence is rarely used in judicial review proceedings. However, the courts retain a discretion to permit oral evidence where it is considered necessary to do so. Judges use that discretion appropriately and frequently deny requests to adduce oral evidence unless it would, in fact, be necessary for the case at hand. Applications for oral evidence can be made by claimants and defendants in judicial review claims, and there is no indication that the impact on public authorities has been thought through. The system works well, generally respecting the unique nature of judicial review while allowing parties—both claimants and public bodies—to adduce oral evidence in rare cases where it is necessary to do so. There is no indication that there is a problem with the system that the proposals seek to address.”
“We will see. Unfashionably, I will confine my comments to new clause 5, which restricts disclosure by public bodies and the use of oral evidence in judicial review proceedings to circumstances where there are “compelling reasons”. In addition, under subsection (2), if a public body argues, or indicates its intention to argue, in relation to or in anticipation of any judicial review proceedings, that the proceedings concern a matter that is non-justiciable or that review is excluded by an enactment, the public body will not be subject to any evidential duty at all until a court regards the matter to be reviewable. Subsection (1) relates to disclosure orders, which are already limited by the courts. Additional legislative provision is unnecessary and may reduce clarity and cause unnecessary litigation.”
“When this is combined with increased difficulty with accessing evidence through disclosure orders, set out by subsection (1), claimants will be denied access to evidence required to advance their case, making many cases unworkable. I therefore hope that the Minister will also resist the new clause.”
“It helps to resolve matters efficiently and effectively. By requiring both parties to undertake full disclosure of relevant information early on in proceedings, it allows for a proper assessment of the merits of the case. That can help public bodies show claimants early on evidence that the decision was taken lawfully, which can lead to an early settlement, withdrawal of the challenge or at least the narrowing of the issues in dispute. That avoids substantial unnecessary costs and use of court time. New clause 5 should have no place in the Bill. Subsection (2) would enable public authorities to disapply the duty of candour where they indicate their intention to argue that the matter is not justiciable.”
“That would make many cases completely un-triable. As I have said, the current form of judicial review, with limited fact-finding and disclosure requirements, works only because the parties are subject to a duty of candour. The duty requires a “cards on the table” approach and, as has been noted, “the vast majority of the cards will start in the authority’s hands”. For claimants to have the ability to get over the starting line and bring judicial review proceedings, the defendant body must be subject to the duty of candour. The duty ensures that all relevant information and material facts are before the court, and that any information or material facts that either support or undermine their case are disclosed. As the “Administrative Court Judicial Review Guide” recognises, compliance with the duty of candour is “very important”.”
“In effect, weakening those disclosure powers weakens the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies feel that they do not need to comply with the duty, it will severely weaken the position of claimants, contribute to an inequality of arms in judicial review proceedings and risk completely barring, in practice, the ability for the claimant to bring a judicial review. For all sorts of reasons, including funding, the tight restrictions on bringing claims and the difficulties of bringing claims, there are already substantial problems for any claimant in beginning judicial review proceedings. Subsection (2) would enable a public authority to effectively disapply the evidential duties, including the duty of candour, by indicating its intention to argue that the matter is not justiciable.”