Below is the speech delivered by Jim Allister during the debate on the Planning Bill last night:
Yesterday, we witnessed a power smash-and-grab raid with amendment No 20. Today, with amendment No 26, the new tool of tyranny is to gag the citizens. To underscore that, the amendment not only gags the citizens but circumvents the courts to make sure that the opportunities that currently exist to challenge executive authority are neutered. For decades, nay centuries, the courts have played a vital role as a restraint on the abuse of executive power, and that is why the function of judicial review has evolved over many years. However, the obvious effect and purpose of amendment No 26 is to remove from the citizen the right to have recourse to that remedy in the manner that he or she currently has.
Mr Weir sought to excuse all that by telling us that no current judicial review will be affected. One might say, “So what?” The future judicial reviews that can unfold will most certainly be affected in a fundamental way. To have a check and balance on the abuse of unlawful or inappropriate exercise of executive power, judicial review provides a remedy that, if the court can be convinced that that which is being challenged is unlawful by reason of being irrational, or is so unreasonable that no reasonable body could have reached that decision, by virtue of its unlawfulness, it will be overturned. That has been a primary function of judicial review down the years. That predates any rights under any European Convention on Human Rights, because that form of judicial review existed long before we had the European Convention on Human Rights.
Therefore, if you say that you can still challenge it if your convention rights are suppressed or some EU legislation is not properly acknowledged, again I say: “So what?” What you cannot challenge any longer under this tyrannical proposition is that a proposal that is unlawful by virtue of being irrational cannot be stopped or challenged by the courts.
Mr Poots: I thank the Member for giving way. Would the Member accept that, in some instances, the judicial review process has been abused and that, very often, it is one developer using technicalities in law against another developer? I could make reference, for example, to cases where that has happened. We have seen cases being drawn out for many years as a result of that. Instead of this being a developers’ charter, as the Member is suggesting, he wants it to be a lawyers’ charter, where fat cat lawyers can make fortunes out of stopping jobs coming to Northern Ireland. That has been the case in quite a number of instances.
Mr Allister: The Minister is the walking embodiment of a little knowledge being a dangerous thing.
If there are problems with judicial reviews or instances of abuse of judicial reviews — and the law, like politics, can be abused; there are instances of that in both — you address the cause of the abuse. You do not liquidate the right. If I recall correctly, the Minister has been judicially reviewed once or twice. His desire is to liquidate the right of judicial review and to say to the citizen: “How dare you challenge what I say? How dare you have recourse to the courts in this land? I am the Minister. What I say is right, because I say it.” That is the arrogance of the attitude that lies behind amendment No 26. That was evident when the First Minister, back on 25 September 2012, was quoted in ‘The Belfast Telegraph’ as saying that he wanted the Executive to investigate how judicial reviews could be limited or avoided. That is a staggering thing to say: that he wants to remove a remedy of centuries of posterity; that he wants to be able to remove the right to challenge the Executive in the courts; that he wants to avoid the possibility of anyone daring to assert that the Executive just might have got something wrong.
Mr Poots: I thank the Member once again for giving way. We had a very important vote last night — actually, it was this morning. The potential for that to be judicially reviewed is very clear. We have a situation in which the House has decided that it is not in support of the redefinition of marriage. Will the Member support that being judicially reviewed and those rights? He knows that there is an awful lot of it going on. However, very often it is a lawyers’ charter being paid for by legal aid. In the instance of planning, very often you have one developer using judicial review, not because they are interested in badgers or newts, but because they are interested in ensuring that someone else does not take up a commercial opportunity that might impinge upon their commercial viability.
Mr Allister: In fact, I do not think that there is any serious threat from a judicial review on the same-sex marriage issue, but even if there were, what any executive, government or legislature does must be capable of withstanding the scrutiny of the courts. To think otherwise, to say otherwise or to do otherwise is to embrace tyranny and dictatorship, and that cannot be right. That is why it is frightening that there are Ministers in this House who are so anxious and so eager to ride roughshod over the rule of law. Access to judicial review is part of the rule of law. Make no mistake about that. Sadly, there are those in this House who are doing the bidding of whoever it is who has that ambition. That is a most retrograde step, and one that reflects most adversely on those who take that stance.
I am particularly surprised — well, “surprised” maybe is not the right word, because I am going to talk about Sinn Féin. Sinn Féin has been the champion of running to the courts at every whim for a judicial review. If it gets a coroner’s decision that it does not like, it judicially reviews it. If it gets a Parades Commission decision that it does not like, it judicially reviews it. Yet, here its Members are as co-signatories of amendment No 26 to shut down, as far as planning is concerned, judicial review. These great libertarians who, when it suits them, proclaim that particular outlook are the fellow conspirators with those advancing the developers’ charter to suppress judicial review. Is that, too, not quite surprising?
Let us be very clear, Mr Deputy Speaker. This suppression of judicial review does not relate just to the matter that we discussed yesterday, the matter of planning decisions taken in an economically defined zone. This attack on judicial review applies to every planning decision, whether it is made in a couple of years’ time by a council or made by the Planning Appeals Commission or made by the Department. All of them are now going to be relieved of the threat of judicial review. What is that but an invitation to unchallengeable decisions and, therefore, bad and corrupted decisions? If you have no court to look over your shoulder and to say that that is irrational or unlawful, and if you gag the courts and gag the citizen from going to the courts to say that, what sort of a dictatorship are we creating? What sort of a monster are we seeking to introduce in this legislation? I think that it is quite, quite staggering in that regard.
Let us take an example. Let us root it in amendment No 20 of yesterday. Let us say that OFMDFM, in its all-knowing, unchallengeable wisdom, decides that a particular ASSI — something very close to the heart of the Member for South Down Mr Wells, who is not here at present — should, even though it is an ASSI, become a classified zone, where any class of planning permission that OFMDFM decrees can be given, will be given. As I said yesterday, that is without recourse to issues such as location, siting or design. People are exercised, outraged and beside themselves because of the impact that it will have on them, their environment or where they live.
There are those in the House who are prepared to say that not only should those people have no third-party right of appeal but that they should have no right of appeal to the courts. So they have no recourse to challenge or say that they want someone to look at this independently from the legal perspective to see whether procedures have been followed. One thing that results from suppressing judicial review is that even the procedures followed cannot be challenged, never mind whether the decision is unlawful because it is irrational.
Are we seriously saying to this and future generations that that is the way that we want to shape our planning law? For years, developers have wanted to shape it in that fashion and very much resented how the courts acted, on occasion, as brakes on them. At every turn, developers pleaded that it was for the economy, and, more often than not, they meant their economy. Now, under this charter gifted to them by their friends, they are to have free rein. I think that that is wrong.
Mr Weir said that we need not get excited about this because any decision about what class of area is to be exempted from judicial review will have to be approved by a resolution of the Assembly. Let us tear away the nonsense that covers that statement. Anyone who knows anything about how the House and the Executive work — this is true of amendment Nos 20 and 26 — knows that the Members who sit in the House did not draft any of these amendments. There are Members in the House who will vote for these amendments tonight, as they voted yesterday, without even reading them. Some, even if they read the amendments, would probably not even understand them, if you do not mind me saying so, but they will vote for them because they are told to vote for them.
How were the amendments drafted? Some special adviser, elected by no one, cooked up the idea with his political masters, instructed the draftsmen and then agreed — as part of some other wider package, no doubt — with special advisers on the other side of the House that this was the way that they would go. Then, hapless individuals such as Mr Boylan are sent in to propose them, and so they dutifully do, yet the Benches are empty because there is no appreciation of or enthusiasm for any of it. It is what they have been told to do. So when Mr Weir tells us that we should not be concerned about any of this because anything that happens will require a resolution of this House, again, the question is this: so what?
A resolution will be cooked up by the DUP/Sinn Féin cabal — by their special advisers — presented as a fait accompli and voted dutifully through the House. There is no protection there — none whatsoever.
Mr Poots, if he still wants to, can intervene.
Mr Poots: I thank the Member for giving way. I think that the Member is not against economic development; I certainly hope that that is not the case. However, over the past number of years, there has been a series of cases where judicial review has stifled economic development. We just heard today, for example, that the legal aid for lawyers has risen again on both fronts. We can talk about fat cat developers, but there are fat cat lawyers out there. We could throw accusations about who people’s lawyer friends are and who is defending lawyers here today. I am not accusing the Member; I am asking a question. Has he no association whatsoever with any law bodies any more? Has he resigned all that and is, therefore, free to speak without declaring any interest whatsoever in those bodies? Planning and other issues have dragged on and have been held back by judicial process for a very long time. In some instances, I am not sure where the added value has come. So, I do not think that the planning system, as it has existed, has been good for opportunities in Northern Ireland, vis-à-vis the Republic of Ireland and other places where potential opportunities for development have come. However, the Member may view that differently, and I would like to hear whether he does.
Mr Allister: I assure Mr Poots that if I had an interest to declare, I would be declaring it. Has he any interests to declare? Has his party anything to declare from development donors? Is his party saying to the House that it has no development donors? If so, things must have changed, Mr Deputy Speaker. Is that what he is saying to the House?
Mr Poots, again, cannot get his blinkered view past the fact that there have been judicial reviews that did not turn out the way he wanted them to turn out. Therefore, his answer is to abolish them.
I had an interest to declare from another life. I had many clients, and things did not turn out the way that they wanted them to. They ended up in jail but they could not abolish the courts. They could not say, “Let’s have no more judges, let’s have no more juries.” No — there is such a thing as the rule of law. I am sorry, Mr Poots, there is such a thing as the rule of law in the check and balance on Executive authority. It is presently called judicial review, and it affects most gravely those people and their attachment to the fundamentals of our system to the extent that they want to shred and remove it. That is what they will vote for tonight. There is no doubt about that. The Health Minister’s erudite contribution is now to say, “Nonsense”. However, the Minister’s actions will show who is talking the nonsense, because the Minister’s actions will be to vote to suppress — to remove — judicial review. That, of course, comes from someone who might have declared the interest that he has been the object of successful judicial review applications against him.
In that context, I turn to amendment No 24. In its own right —
Mr Givan: Will the Member give way?
Mr Allister: Ah, Mr Givan. [Laughter.] Another walking embodiment.
Mr Givan: I appreciate the Member giving way. Does he want to explain to the public why, for example, he revels in the outcome of a judicial review of the laws pertaining to gay adoption? Why does he revel in the outcome of that judicial review?
Mr Allister: I revel in no such outcome. The problem the Member has, and this goes back to the point about a little knowledge being a dangerous thing, is that he seems to think that if you believe in a court system, you are bound into every decision that is made. It is on the other hand: you are bound into respect for the rule of law and the fact that there should be recourse to inspection and oversight of Executive authority.
So, it is nothing to do with the outcome of judicial reviews, gay adoption or anything else. I disagree with that outcome and hope that the appeal is successful. However, the very fact that you can have a judicial review or that the outcome is not what you like is not a reason for abolishing judicial review. If that is the simplicity and mindset of those who are voting for this, I do wonder what their next proposition will be.
I was turning to amendment No 24. In its own right, I support amendment No 24. I believe in third-party appeals. I believe in them as a matter of equality because the planning process is very much an unequal struggle between the big developers who Mr Poots, before he disappeared, mentioned and the little man, and very often — not always, but very often — the objectors are the little man.
When the big developer does not get his way with the planning authorities on his application, he can appeal to the Planning Appeals Commission. But the little man — oh no; no appeal for him. It is a fundamental question of equality. That is why I have always believed in third-party appeals. However, in the circumstances of this smash-and-grab raid on powers by OFMDFM, and its handmaiden of tyranny — the suppression of judicial review — I find an abundance of extra reasons to believe in third-party appeals.
You cannot say to someone, “Not only will you not have the right to have a third-party appeal but you now will not have the right even to challenge the decision by judicial review.” So, the liquidating of the right to have a judicial review is itself an added reason why, in these circumstances, third-party appeals are more necessary than ever. That is why, tonight, I will support amendment No 24, although steps have been taken to make sure that it will not succeed, and, for the reasons that I have outlined, I will oppose amendment No 26.