Judicial Review and Courts Bill
Monday 21st February 2022
(2 years, 9 months ago)
Lords ChamberJudicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 102-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (21 Feb 2022)
Lord Wolfson of Tredegar
That the House do now resolve itself into Committee.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I beg to move.
Lord Scriven (LD)
On a point of order, my Lords, questions on a Statement should have been for 15 minutes and not for 10 minutes.
Baroness Penn (Con)
My Lords, a Private Notice Question lasts for 15 minutes; a repeat of an Urgent Question lasts for 10 minutes. I believe we are now in Committee on the Bill.
Lord Pannick
Member’s explanatory statement
The purpose of this amendment, along with amendments to page 1, line 15, and page 2, line 2, in the name of Lord Pannick, is to remove the proposed power for the court to prevent a quashing order from having retrospective effect, thereby validating what would otherwise be quashed as unlawful.
Lord Pannick (CB)
My Lords, the reaction of most of your Lordships to Part 1 of this Bill at Second Reading was summed up in the memorable words of the noble Baroness, Lady Jones of Moulsecoomb, whom I am very pleased to see in her place:
“It is not as bad as I expected”.—[Official Report, 7/2/22; col. 1371.]
Part 1 could certainly have been worse, but that of course is no answer to the amendments that we are now debating.
I declare my interest as a barrister practising in the field of judicial review. My Amendments 1, 4 and 5 in this group are concerned with decisions of the court to quash a public law decision, whether in the form of a statutory instrument, a decision of a Minister or a decision of a local authority or any other public authority.
As your Lordships and the Committee know, when a public body is found to have acted unlawfully, the decision is usually—not always—quashed; that is, overturned. This is an important protection of the rights of the citizen and an important deterrent to unlawful action by public bodies.
Clause 1 gives the court a power to decide that the quashing order should not take effect until a date specified in the order—some later date—and a power to remove or limit any retrospective effect of the quashing. I am not troubled by the court being given a power to decide that the quashing order should take effect at a later date. That power was recommended by the noble Lord, Lord Faulks—who is in his place—and his team in their well-informed and wise conclusions in March 2021 after their independent review of administrative law which the former Lord Chancellor, Sir Robert Buckland, had asked the noble Lord to conduct. The noble Lord, Lord Faulks, explained in particular that there may be cases where the court considers it appropriate to suspend a quashing order to enable Parliament to decide whether it wishes to amend the law. That seems entirely acceptable, because it recognises the supremacy of Parliament in our constitution, so there is no difficulty about that.
What the noble Lord, Lord Faulks, and his committee did not recommend and what my Amendment 1 seeks to remove from this Bill is the power in new Section 29A(1)(b), set out in Clause 1, for the court to remove or limit “any retrospective effect” of a quashing order. New Sections 29A(4) and 29A(5) make clear that this would mean that the decision or policy which the court has found to be unlawful is nevertheless to be “upheld” and
“treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
My Amendments 4 and 5 would remove those provisions.
What the Government are proposing would confer a remarkable power on our courts: a power for the court to say that what has been found to be unlawful shall be treated, and treated for all purposes, as having been lawful. Those adversely affected by the unlawful decision, including the claimant in the judicial review, would receive no remedy. If such a remarkable power is to be exercised, it should not be exercised by judges but by Parliament. Your Lordships will recall that one of the causes of the Civil War was Charles I’s use of a dispensing power. The monarch’s claim to such a power was abolished by the Bill of Rights 1689. I do not think it is wise to re-establish such a power in the hands of Her Majesty’s judiciary.
The decision on whether to validate what a court has found to be unlawful raises all sorts of policy considerations which are not for the judiciary to weigh up and determine. Indeed, to confer such an extraordinary power on our judges is, I suggest, inconsistent with this Government’s repeated expressions of concern that judges have or are exercising too much power. As my colleague at Blackstone Chambers, Tom Hickman QC, has pointed out, for the court to have this power to deny retrospective effect for its ruling and to do so permanently, not even only where the defect is technical, would be for the court to exercise a quasi-legislative power, including a power to override primary legislation —that is, the statutory provision which makes the impugned decision or policy unlawful.
Such a judicial power would undermine one of the key functions of judicial review, which is to encourage government to do its best to ensure that it behaves lawfully because it knows that illegality has consequences. It would deter judicial review applications: why bother to complain that the public body has acted unlawfully if the court may say that what was unlawful shall be treated as lawful? New Section 29A(1)(b) would have the effect—indeed, I suspect it has the intention—of seeking to protect government and other public authorities from the basic consequences of their own unlawful actions. I think that is a matter for Parliament and Parliament alone. I beg to move.
Lord Anderson of Ipswich (CB)
My Lords, I am slightly more relaxed than my noble friend Lord Pannick about the prospective-only quashing power in the new Section 29A(1)(b)—it is, in its essentials, already acknowledged in our law—but only so long as the courts are free to use it without constraint or presumption. In the Spectrum case of 2005, Lord Nicholls thought a prospective-only quashing order might be appropriate in some cases where a decision on an issue of law was unavoidable but a retrospective decision would have gravely unfair and disruptive consequences for past transactions. Each of his six colleagues agreed that it would be unwise to rule out the existence of such exceptional cases, even though Spectrum itself was not one of them.
Lord Beith (LD)
My Lords, this is an area of complexity and difficulty and I think the difficulties are added to by the content of the Bill as the Government have brought it before us. It was not broken and it was not necessary to fix it in this respect. The noble Lord, Lord Anderson, has just explained how the previous use of common-law powers has dealt with this matter perfectly satisfactorily.
I share with the noble Lord, Lord Pannick, the dislike of anything that lessens the clear impact of the threat of judicial review on the public service. I say threat not because I am hostile to members of the public service but because it is a necessary discipline that things must be done within the law and they know that, if they are not, what they are bringing forward could well be nullified in the courts. The severity of judicial review is important to its role as the discipline for the rule of law.
There are, however, cases which do not fit easily into this pattern and which make an element of retrospection attractive. I think of licensing measures of various kinds—measures that render lawful things that would otherwise be unlawful. There are quite a lot of them in the area of game shooting, for example, and one caused quite a stir over the last couple of years: the power to shoot a predator bird if it is likely to enter an area where it would disturb the wildlife in a site of scientific interest which is subject to protection. In a recent example, there was indeed the threat of an action which did not take place in the end but which led Natural England to accept that its regulations were defective.
In those circumstances, you have people who have behaved in good faith and—they thought—lawfully, who, when the court in a judicial review determines that the action is not within the law, are left in a rather difficult position. You may say that nobody is going to prosecute them once it becomes clear that the law had been nullified. The case may already have started. However, in the real world, having been found to have acted unlawfully, even unwittingly, is not a good position to be in and not one that an employee wants to find themselves in. It presents some difficulties which I think Amendment 6, from the noble Lord, Lord Ponsonby of Shulbrede, attempts to address in so far as it affects regulations and delegated legislation. I will be interested to hear him set it out more fully and the Minister’s response to it.
That qualification—that we should remember the interests and concerns of people whose actions could unwittingly be rendered unlawful—is only a limited qualification to what, in my view, is the fundamental reason to object to what the Government are proposing, which is that the full rigour of the effects of judicial review should be something that the public service is always aware of.
Lord Hope of Craighead (CB)
My Lords, I find myself in the same position as my noble friend Lord Anderson and I would like to add just a few words to what he said.
One of the points made in the Explanatory Notes—and I am looking at paragraph 21—is that:
“The diverse circumstances of possible cases make it difficult to assume that any one remedy or combination of remedies would be most appropriate in all circumstances.”
My noble friend Lord Pannick invites us to address subsection (1), read together with subsection (4). If one asks oneself what these provisions are driving at, one has to bear in mind that there is a whole range of diverse circumstances, some of which may affect private individuals very much indeed; in which case, one would be very concerned that their remedies were not being cut out. Other cases deal with administration and circumstances where individuals probably are not affected at all, but the good administration or even the security of the country is very much at stake when a quashing order is made.
I hope I can be forgiven for coming back to the case of HM Treasury v Ahmed in 2010, which I was involved in. I mentioned it at Second Reading and when I was addressing this subject at an earlier stage. It is worth dwelling on that case because it is an illustration of a circumstance where the clauses that are under attack by these amendments could be valuable. It was a case where the Treasury had pronounced an order to give effect to our international obligations under the United Nations Act 1946, designed to freeze the assets of suspected terrorists. That was our international obligation and, understandably, the Treasury made the order. But when the case came before the Supreme Court, it was pointed out that there was no parliamentary authority for such an extreme measure. The Supreme Court unanimously decided that the order should be set aside.
I suggested in the course of the hearing and, indeed, at the end of my speech—the leading speech in the main case—that we should suspend the effect of the order to give time for the Government to remedy the situation in order to avoid the terrorists dissipating their assets. The risk was that the banks that were holding the assets under the order that was under attack would release them under demand from the terrorists. Clearly, that would not be desirable.
I was overruled by six to one for a reason which, I think, demonstrates why these provisions are needed. My noble and learned friend Lord Brown of Eaton-under-Heywood was in the majority of the six against me so perhaps he can explain more fully what their reasoning was. As I understand it, they were saying that if you quash the order you are declaring what the law always was; in other words, the Treasury order was of no effect at all—that was the effect of the order—and, as I think the noble and learned Lord, Lord Phillips, said, it would indeed undermine the effect of the quashing order to suspend it because it would be suspecting that there was something wrong with the decision to quash the order.
I could not understand that and I still cannot understand the sense of it. Indeed, one of the broadsheet papers, having spotted what was going on, asked: has the Supreme Court gone mad? I remember that certain people were rather discomfited by that but it was a very strange thing to do because there was no question of the banks releasing the money. But it was just as well to suspend the order so that they would be comforted by the fact that we were not actually making the order until Parliament had come in and produced a proper remedy to sort it out.
There you are. If you look at subsection (4), the “impugned act” was this order and what I wanted to do was to, in effect, allow the impugned act to be maintained—or, as subsection (4) puts it, “upheld”—so that the matter could be corrected. I cannot see anything objectionable to exercising the power in subsection (1)(b) in a circumstance of that kind. I wish we had had that power available to us at the time. It would have made my life a good deal easier in our discussions. It was not there and any idea that the common law could do that had really been exploded by the decision of the majority.
There is a problem and it would arise time and again if people were looking at the majority decision. There are, or could be, cases where for the protection of the public and in the interests of good administration the possibility of suspending the effect of the order so that the impugned act is regarded as valid until the defect can be corrected will be valuable. I suggest, with great respect to my noble friend, that it would be unwise to remove these provisions from the Bill.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I feel I have to rise at this juncture. I supported Clause 1 at Second Reading and continue to do so today. Like other noble Lords who have spoken since, the noble Lord, Lord Pannick, I suggest, puts the case against the clause altogether too high. I say that Clause 1 and the powers that it confers on the judiciary valuably would add to the judges’ discretion, their powers to do justice not just to the claimant in a particular case but on a wider basis. I, too, was in the Spectrum case—Lord Nicholls’ case with the noble and learned Lord, Lord Hope, and others—and it was not a case in which we thought at that stage and in that context we should exercise this power, assuming we had it, to develop the law.
I am going to disappoint the Committee because I have insufficient recollection—I shall come back to this on Report, I promise or threaten—to deal now with the point from the noble and learned Lord, Lord Hope. But I see the force of what he says and, in a rather different context, I, too, wish to reminisce. I go back even further, a quarter of a century, to a case called Percy v Hall. It was so long ago that Mr Keir Starmer was the second junior with a very white wig. It was a case about by-laws in respect of Menwith Hill, a listening post, a secure station for GCHQ and the Americans, and the by-laws, not surprisingly, precluded public entry.
Baroness Jones of Moulsecoomb (GP)
My Lords, I love these debates with our legal eagles, especially when they disagree. My only reminiscence of a court was when I was in the dock for not paying my poll tax. Being a very respectable housewife, having made a statement, obviously I paid.
I am feeling a little generous toward the Government —perhaps that is just the effect of recess—so I will accept that there could be situations where a court might usefully add constraints to a quashing order that either delay its effect or limit its retrospective effect. However, the way in which the Government have done this in the drafting of Clause 1 is far too prescriptive. Rather than giving courts these options as tools to deploy in the interests of justice and good government, the Government are trying to force them into being the default position.
Obviously, my legal knowledge is zero, but I will try to inject a little politics into all this, because the reason that the Government are bringing this is, as the noble Lord, Lord Paddick, said earlier, that they are trying to stop their own mistakes. It is already difficult for people to bring judicial reviews. They must be brought as soon as possible and within three months of the decision being complained of. This new scheme in Clause 1 would mean that for many judicial review cases, even if a claimant wins, they lose. That does not make any sense.
The Government have approached the whole issue by seeing judicial review as an enemy to good governance rather than as a fundamental part of enforcing good government. Judicial review is a fundamental part of the checks and balances of the UK’s messy constitution, and the idea that public decisions which are either unlawful, irrational, or procedurally unfair should be left to stand is anathema to good governance. If the Government want to lose fewer judicial reviews, they should simply make better decisions. I know that is not easy for them. I have a lot of sympathy, but they are making a mess. If their decisions are lawful, rational, and procedurally fair, then the Government will not lose. That seems obvious to me. They should not be asking Parliament and the courts to validate their unlawful decisions. To do so is to unpick the rule of law and the delicate system of checks and balances, and now the Government seem absolutely determined to push the UK constitution to breaking point.
Of course, the Green Party’s view is that we should have a constitutional convention and produce a clear written constitution which can be understood by everyone. However, until then, we will oppose the Government’s attempt to stop exposure of their bad decisions. I do not understand why this has been put in when it is so clearly an effort by an elected dictatorship to shut people up.
Lord Faulks (Non-Afl)
My Lords, I have the disadvantage of being a lawyer, an interest which I declare, and I was the chairman of the Independent Review of Administrative Law. Our task, as we saw it, was to review whether the balance of our constitution was fairly reflected in particular by the scope of judicial review. We did not make radical suggestions, but one suggestion that we did make—and it was simply a suggestion—was that legislation on what remedies would be available in response to a successful application for judicial review would be required if the courts are to have the option of awarding a suspended quashing order, as the possibility of issuing a suspended quashing order in a judicial review case was ruled out by the UK Supreme Court in Ahmed—and of course, there was one noted dissension, from whom we have heard this afternoon, the noble and learned Lord, Lord Hope.
That was our suggestion. We were not prescriptive as to how best that power should be given to the courts, but what seemed important to us was that there should be some flexibility to stop some of the hard edges which can arise with a quashing order. What seems fundamental to the way the Government have framed this clause is the use of “may” on more than one occasion. The judge, when he or she looks at the act which is being impugned, has the power to do various things and to take into account the sort of things that a judge would probably take into account anyway. We suggested that that flexibility would help do justice to claimants and to defendants, and one should not lose sight of either party in these claims. We have heard the relevant quotation from the judgment of Lord Justice Schiemann on how third parties can be affected by these orders—people order their affairs—but, equally, I accept that it is very important that claimants should not have their remedies in any way frustrated by judges taking an overprescriptive view.
In one of the amendments put forward by the noble Lord, Lord Ponsonby, on behalf on the Labour Party, he is concerned, I think, about potential convictions based on something that might be regarded—retrospectively, at least—as invalid. We considered this in the report, and said the following on page 75:
“in the case where a claimant who brings a civil case against a public defendant, and the public defendant seeks to justify its conduct by reference to some rule or decision under which it operated, the ‘metaphysic of nullity’,
referred to by the noble and learned Lord, Lord Brown, at Second Reading,
“allows the claimant to argue that that rule or decision was null and void and cannot provide a defence to his or her claim.”
We were not concerned about this because, as stated in paragraph 3.67, the
“possibility of such collateral challenges could easily be retained under the more flexible approach to the consequences of unlawful administrative action that we favour. The courts could simply take the position that an administrative rule or decision cannot be relied on as a basis for criminal proceedings, or as a defence in civil proceedings, if it would have been the subject of a quashing order or a declaration of nullity had that rule or decision been the subject of a timely application for judicial review.”
So, I understand the concern; I simply do not think it exists in the way the clause is framed.
I am afraid I simply fail to follow why the noble Baroness says this clause is creating an elected dictatorship. It is giving judges a power to do what is appropriate in the particular case. In some ways, it may allow judges to make quashing orders they might have been reluctant to make before, because of the hard edges of a quashing order. As it is, they have sufficient flexibility to tailor the remedy to what is appropriate in the case in order to reflect the balance between the claimant and the defendant. I am disappointed too that the noble Lord on the Labour Front Bench opposes this clause entirely. Some of the rhetoric about the ability or desire to constrain judicial review did not seem to be reflected at all in the way this Bill is framed.
Governments of all colours, from time to time, to some extent resent judicial review. For example, we looked at a great many comments by the Labour Government—even that of the noble Lord, Lord Blunkett, who is no longer in his place—about the inappropriate comments by judges and restrictions on the ability of the Government to govern. There is the example of the Human Rights Act preventing the Government—so they said—from doing what they needed to do to deal with the threat of terrorism. All Governments from time to time find this irksome. Simply to oppose a provision in a Bill because it has the subject of judicial review does not seem to me to be a very scrupulous and sensible way to approach legislation.
Baroness Jones of Moulsecoomb (GP)
Before the noble Lord sits down, may I correct him? I did not say that this clause suggested an elected dictatorship. I am saying that an elected dictatorship is running the country at the moment, and we see that in every single Bill that comes to this House.
Lord Faulks (Non-Afl)
I am grateful for that clarification, but I am afraid to say that I still fail to follow how bringing forward a fairly balanced Bill is somehow the Government reflecting an elected dictatorship. But I hear what the noble Baroness says.
Lord Falconer of Thoroton (Lab)
My Lords, this is a very important debate and in this part of it, I will focus only on whether it is appropriate to empower a delayed quashing order—as proposed in new subsection 1(a)—and whether it is appropriate to give a power to say it shall be prospective only. My overall position is that if the courts want these powers, let the courts develop them. Do not do it by legislation.
Lord Hope of Craighead (CB)
The noble and learned Lord was kind enough to refer to the case that I was referring to. However, I was suggesting that the court should have power, in effect, to direct that the order made under the United Nations provisions be treated as valid until Parliament could introduce a measure giving authority to the making of the order. That is indeed what happened afterwards; Parliament had to remedy the problem and some time was needed to allow it to do that.
The banks were holding on to the money; of course, they were not going to release it unless it was demanded by these suspected terrorists, but had they demanded it, it might have been quite difficult for the banks to refuse to release some money. My point was that something should be done to prevent that happening. The last thing one wanted was to give these terrorists the opportunity to make off and dissipate all the assets that had been protected by the order made under the international obligation.
The problem that the noble and learned Lord is grappling with is that there is a huge range of circumstances in which these provisions may come into effect, some of which, I quite agree, would be offensive. I would hope that the courts would be sensible enough not to exercise the power. There are various provisions later in the Bill, which we will discuss and which might be better removed to preserve the court’s flexibility. The question is whether the power should be there at all. My point was that, yes, it should be there because there can be cases where the interests of good administration, and possibly national security, require the possibility of doing that to prevent the event—or whatever it was that the defective order was designed to prevent—taking effect.
Lord Falconer of Thoroton (Lab)
New subsection (1)(a) deals with that point. The effect of the order stood until the Supreme Court set it aside, and everybody would accept that that is the position. If the Supreme Court had had new subsection (1)(a)—which it could have—it could have said that the order freezing the money continues for six more months and in six months’ more time it is then quashed. That is my understanding of a (1)(a) order: the quashing order means getting rid of the restraint on dealing with the money and does not take effect until the date specified in the order.
If the Supreme Court had said, “This order stands until six months’ time”, and a bank had then been approached and told, “Excuse me, the terrorists want their money now”, the answer would have been no because there would still, in effect, be a restraining order. It would have dealt with the problem that the noble and learned Lord posits; I think Clause 1(1)(a) would have dealt with it.
Lord Hope of Craighead (CB)
I recommend that the noble and learned Lord refers to Treasury 2 because I made exactly the point that he was trying to make and I was overruled by the others. They said, “You can’t do that”, and they would not make the suspended order. We are in Committee and we cannot prolong the discussion, but that is the problem that I was faced with. I tried to do exactly what the noble and learned Lord suggested but I was overruled. That is the problem that I think the Government are trying to address; the Minister will correct me if I am wrong.
Lord Marks of Henley-on-Thames (LD)
My Lords, I enter this discussion with some trepidation. Nevertheless, it raises very important points of principle, which have been essentially analysed in the last few minutes and the last few exchanges. As we have heard, the effects of Amendments 1, 4 and 5, in my name and those of the noble Lords, Lord Pannick and Lord Ponsonby, would be to remove from the Bill the power to make a quashing order prospective only. That is the problem: it is prospective only. We are not arguing for the removal of the power to delay. I will come back to that in a moment, but I start from the position that I agree entirely with the analysis of the noble and learned Lord, Lord Falconer, that a (1)(a) order could solve all the problems outlined by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson.
I venture to suggest that it is significant that when the committee chaired by the noble Lord, Lord Faulks, considered its recommendations for this type of order, it recommended only the power to delay, not the power to validate past unlawful action in the way that a quashing order made prospective only would do. Our amendments are premised on the proposition that, when the courts find that an Act, or a decision or regulation of any organ of government, is unlawful, it should not then be able to decide only to quash it with future effect. As the amendment’s explanatory statement puts it, and as the noble Lord, Lord Pannick, explained, the proposed power would thereby validate
“what would otherwise be quashed as unlawful”,
and unlawful for all purposes. The noble and learned Lord, Lord Falconer, emphasised the provisions in proposed new Section 29A(4) and (5) for the all-embracing effect of a prospective-only quashing order.
New subsection (4) makes it absolutely clear that the impugned act—which is ex hypothesi an unlawful act because a quashing order is being made—is to be upheld in any respect in which the provision under new subsection (1)(b) prevents it being quashed. That has no flexibility. If the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope—as well as the noble Lord, Lord Faulks, as referred to in his speech—are seeking flexibility, a (1)(a) order is not the way to do it. Our Amendments 1 and 4 do not seek to debar a court on judicial review from permitting either officials to put right a decision taken unlawfully by remedying the unlawfulness or, as the noble Lord, Lord Pannick, pointed out, Parliament to alter unlawful regulations without the need to wield the blunt instrument of a quashing order immediately.
We suggest that the power to suspend by delaying the quashing order eliminates that risk. It mitigates the risk that a quashing order would have the effect of indiscriminately overruling all government action, for example a regulation, without distinguishing between what was lawful, or ought to be lawful, and what was unlawful. We say that enabling a decision to take effect on a delayed basis would enable the law or the government action to be corrected so as to regularise the unlawful government action. So, the quashing order, if it took effect immediately, would be senseless, but it must stand once the delay is over, to deal with the past unlawfulness. It deals with the Ahmed point, as suggested by the noble and learned Lord, Lord Falconer, and it is a far cry from the courts permitting past unlawful action to go uncorrected.
The prospective-only quashing order power undermines the central principle on which judicial review jurisdiction is based: government action is required to be in accordance with law, and if it is not in accordance with law, it will be corrected. The noble Baroness, Lady Jones of Moulsecoomb, sensibly conceded in her speech that there may be conditions or limits but they can all be dealt with by the power to delay. A crucial point that a prospective-only order ignores is that “corrected” means corrected for everyone; that is, all litigants, future and potential, even those who have not yet brought cases.
Lord Faulks (Non-Afl)
I am most interested in the way in which the noble Lord analyses this. Is he essentially saying that this Bill is giving too much power to judges—power that ought to be vested in Parliament—and that a judicial review reform of this nature goes far too far and that judges should not be allowed to have these powers in case they exercise them inappropriately?
Lord Marks of Henley-on-Thames (LD)
It is a two-pronged attack. I do not believe that the judges should have the power to make lawful what they have already found is unlawful with retrospective effect. That means that prospective-only orders are, in principle, wrong. However, if there were a case for changing regulations or for altering government action so as to bring it within the limits that Parliament wanted, that is for Parliament; that is for legislation, as the noble and learned Lord, Lord Falconer, argued. It is not for the courts to say, “We find the act unlawful, but it is only going to take effect as unlawful for the future.” It is, in the example of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, an ex tunc approach; but an ex tunc approach, frankly, is right, whereas the removal of flexibility by ruling out the Part A power—the power to delay—would be a removal of flexibility, which would be unnecessary, and we support that. We do not support the presumption, but that is a different point.
The real important point, about retrospective charges and the points in Amendment 6, in the name of the noble Lord, Lord Ponsonby, is that they accept the unlawfulness—if that was the only amendment that was passed—but would go on to say, “You can rely on the unlawfulness as a defence in criminal proceedings and you can still apply for other financial remedies for judicial review, but the quashing order will only take effect prospectively.” That, in my respectful view, is to fudge the whole point of unlawfulness, and the universality and the universal application of judicial review, which lies at its heart.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I agree with the opening remarks of the noble Lord, Lord Marks—I too enter this discussion with some trepidation. I will first set out the Labour Party’s overall view, since the debate on this group has been fairly wide-ranging. We believe that the proposals for judicial review in Clauses 1 and 2, which we will come to in group 4, are regressive and uncalled-for. More especially, when many aspects of the justice system are in crisis, we do not believe that there is a need for this review in the first place. The Ministry of Justice is trying to fix something that is not broken, a point made by the noble Lord, Lord Beith. We believe that overall, the Government’s changes to the judicial review process will have a chilling effect on justice, deterring members of the public from bringing claims against public bodies and leaving many other victims of unlawful actions without redress. These are proposals that will make it harder for individuals to hold this Government to account. As a result, unlawful decisions made by this Government, or by any government or public body, will go unchallenged.
I put my name to Amendments 1, 4 and 5. The noble Lord, Lord Pannick, as ever, introduced those amendments very fully. The noble Lord, Lord Anderson, asked me about Amendment 3. In my brief, I am embarrassed to say, it says that Amendment 3 is consequential on Amendments 1, 4 and 5; I have had a look at it while the debate has been progressing, and I cannot add any more to that. It may be that what I have been provided with is wrong in that respect.
Amendment 6 would, as set out in the explanatory statement,
“protect collateral challenges by ensuring that if a prospective-only or suspended quashing order is made, the illegality of the delegated legislation can be relied on as a defence in criminal proceedings. This would prevent individuals from being criminalised under defective and illegal ministerial powers.”
The noble Lord, Lord Faulks, said that he did not think that the problem existed. It would be very useful if the Minister could confirm that he too does not think that the problem exists, because, in a sense, it is an inquiry about whether there is any potential for this problem existing. It would be helpful if the Minister were to confirm what the noble Lord, Lord Faulks, has said.
My noble and learned friend Lord Falconer entered into a very interesting debate with the noble and learned Lord, Lord Hope, about the development of suspended quashing orders through common law and whether that was appropriate. My noble and learned friend was very much against proposed new subsection (1)(b); he thought it was quite wrong to give power to judges to, effectively, change the law unilaterally and retrospectively. He argued very strongly that that was not the case.
That point was dwelled on by a number of noble Lords. It is not the point, really, that comes out in this group. We may return to some of the elements which were discussed on that point, but as I said, I enter this discussion with some trepidation, as I understand the amendments in my name—Amendments 1, 4 and 5—much more clearly. We will be debating further amendments to quashing orders in the next group, where we can further look at other prospective amendments. For now, I lend my support to the amendments in the name of the noble Lord, Lord Pannick.
Lord Wolfson of Tredegar (Con)
My Lords, the previous two contributors to the debate noted that they spoke on these matters with some trepidation. In responding to the amendments in this group, I declare a non-interest: unlike so many of your Lordships, I confess that I did not sit on, or even appear in, any of the various cases cited to the Committee. Therefore, with that significant handicap, I will instead start by reminding the Committee of the rationale for including Clause 1 in the Bill. However, in these remarks I will not address the list of factors in subsection (8), or the so-called presumption in subsection (9), because we will deal with those in later groups.
The clause aims to expand the remedies available in judicial review proceedings to provide more flexibility to the courts. As I put it at Second Reading, we want to put another couple of remedial tools into the judicial toolbox so that they can be used when appropriate. I say to the noble Baroness, Lady Jones of Moulsecoomb, that this has nothing to do with dismantling judicial review or an elective dictatorship. The Government and I recognise the importance of judicial review to good government, which is lawful government. But one also has to recognise that, as the noble and learned Lord, Lord Hope of Craighead, reminded us, we have lots of different sorts of cases where we want flexibility of remedy—and that judicial review applies to many decision-makers who cannot sensibly be described as “government” in the way that the noble Baroness was using that word.
The current position is that quashing is typically both immediate and retrospective, depriving the decision of ever having had legal effect. It is as if the decision had never been made; it is a legal nullity. This makes a quashing order something of a blunt instrument, and it can have unintended consequences when applied to nuanced problems.
The clause seeks to give the court a discretion to change quashing orders in two ways, as we have heard. The first is to allow the effects of a quashing order to be suspended for a period, as the court sees fit. The Independent Review of Administrative Law—I listened very carefully to the contribution of its chair, the noble Lord, Lord Faulks—recommended this additional remedial flexibility, and the clause therefore seeks to implement its recommendation. I agree with the noble Lord that the word “may” is critical to the way that this clause operates. The suspended quashing order allows courts to suspend the effect of an order for a period of time to allow the decision-maker to prepare for the effect of the quashing. This could give them time lawfully to make a new decision before the unlawful decision is quashed or to implement some other transitional arrangements.
The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, which aims to remove the whole clause, would remove this new remedy, which I had thought was broadly supported. Although I heard the noble and learned Lord, Lord Falconer of Thoroton, say, “If the judges want this power, they can create it”, we have heard that it is far from clear, to put it at its lowest, that the common law would actually enable the judges to do this. More importantly, there are circumstances where suspending a quashing order will allow the court to provide a remedy that better serves the interests of justice, and we should therefore ensure that it is a tool available to the courts.
The second modification, which would be removed by Amendment 1 and the consequential Amendments 4 and 5 in the name of the noble Lord, Lord Pannick, is the ability to make a quashing order prospective only. I accept that that has been more controversial in the Committee this evening, so I will set out some of the parameters of the debate, as the Government see it.
We have heard examples from those in the other place, and indeed from some noble Lords this evening, where, prima facie, a prospective quashing order could cause significant injustice to the claimant, the applicant or third parties. There will be cases where a prospective quashing order could cause injustice, which is why we are not forcing the courts to use the powers in any case where it would cause injustice or, indeed, be inappropriate. Therefore, I suggest that we leave those discussions aside, because there is remedial flexibility, and concentrate on whether prospective orders make sense in principle, given the wide variety of cases that come before the courts. We could therefore answer the question: are there cases in which their use could be appropriate?
Lord Falconer of Thoroton (Lab)
If the court determines that regulations that impose a tax charge are unlawful but decides that this should be prospective only, is the consequence that the taxes raised before the date are “treated” as having been lawfully raised?
Lord Wolfson of Tredegar (Con)
If the noble and learned Lord will forgive me, I will come to precisely that point later in my speech, because it arises under the amendment put down by the noble Lord, Lord Ponsonby.
Lord Falconer of Thoroton (Lab)
I am raising it now because the noble Lord is placing huge emphasis on the word “treated”. I would be interested to know whether that word means that tax raised under unlawful regulations in the past remains treated as if it were raised lawfully.
Lord Wolfson of Tredegar (Con)
I will come to this point because these are two sides of the same coin. The short answer to the noble and learned Lord’s point is that it would be almost incomprehensible that a court would use a prospective order in circumstances where people have paid taxes that were necessarily unlawfully raised—so the question would not arise. It is a nice theoretical question, but it would not arise. That is why I will deal with it later, and I am happy to take further interventions at that stage, if we can try to deal with the points separately. I see where the noble and learned Lord is going, but at some point one has to live in the real world and consider whether a prospective-only order would be appropriate. Remember, the court has to look at the factors in subsection (8), including paragraph (f), which refers to
“any other matter that appears to the court to be relevant.”
It also has to look at where subsection (9) says
“unless it sees good reason not to do so.”
The idea that that could survive an unlawfully raised tax case is, I suggest, almost incomprehensible.
I will go back to where I was. We are not making an unlawful act lawful. The real question is: what is a remedy at all? In particular, what is a quashing order? This is something that has, frankly, bedevilled public law for some time. It is not clear that public lawyers, or indeed anyone else, have come up with a good answer to it. I suggest, however, that the remedy that the court gives, whether a quashing order or an order of prohibition, does not determine whether something was unlawful or not. It is the judgment and any declaration as to the state of the law that do that. The remedy decides what the effects of that unlawfulness should be, because there are cases where the court will declare that something was unlawful but not actually give a quashing order—but the action is still declared unlawful.
So this new power allows the court to modify the remedial effect of the quashing order so that, up to a point, the action or decision in question would be treated as being valid for all intents and purposes. The court is therefore doing its traditional job of declaring what the law is and what the law was, but it has greater flexibility in determining the real-world effects of its determination. I therefore respectfully agree with the way in which the noble Lord, Lord Anderson of Ipswich, put it. I heard his slightly in terrorem threat as to when we come to the presumption—but I will deal with that at that time.
That approach is consistent with public law as we understand it today. Judges are faced with situations where, despite a finding of unlawfulness, a quashing order does not issue, for a variety of reasons. I do not think therefore that it follows on principle that a finding of unlawfulness should always result in the voiding of the decision ab initio. I am grateful therefore for support on this point from the noble and learned Lords, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, although I will avoid getting into any relitigating in this Committee of either Spectrum or Ahmed—we will leave that for later groups and possibly further editions of memoirs.
We need to avoid an approach which would take us right back into the straitjacket of nullity, and the academically interesting but practically frustrating doctrines that characterised decisions from Anisminic to Ahmed. We are not giving the court a binary choice of quashing retrospectively or giving declarations that state the law but do not necessarily deal with the effects of the impugned decision, even if it is declared to be unlawful. That is my response to the first main point from the noble Lord, Lord Pannick.
His second contention is that the new powers draw the courts into policy questions. I say respectfully that we are simply not doing that. We are asking the courts to do what in many ways they do already, which is to assess the possible effects of their judgment on the parties and the public interest. It may well be the case that having given the courts these two new tools—I think the noble Lord, Lord Faulks, made this point—they do issue quashing orders in cases where they would not have done so if the only option open to them was an ab initio quashing order. Well, so be it. If Parliament has given them these extra tools, that is the way matters will work out. Subsection (8) sets out what we believe to be the pertinent factors, but we made it expressly a non-exhaustive list.
Courts have long recognised the principle that the administrative burden of rectifying the effects of a past decision can outweigh its potential benefits, especially if the Executive are rushed into action. Importantly, there are cases where the courts have recognised that regulations or policies that have a wide effect can create expectations for third parties: plans could have been made, contracts signed and money spent, all in pursuit of what everyone thought was a lawful policy.
We must not get lured into the example of somebody paying tax under regulation which turns out to be unlawful. People might have signed contracts on the basis of a regulation which turns out to be unlawful. They may have spent money or set up businesses. To undo all that could give rise to far more injustice than making sure that present and future situations are rectified. The example I gave at Second Reading, which the noble Lord, Lord Anderson of Ipswich, also mentioned, was the case of BASCA v Secretary of State for Business.
There is a further benefit to good administration, which is really what judicial review is all focused on anyway, which is that public bodies can make good a decision without having to revisit what can sometimes be long and drawn-out policy processes for the sake of a small error.
In cases relating to Heathrow expansion, for example, one point of contention was whether the Government had to take into account the Paris climate agreement. If the court had ended up finding that the decision not to take it into account was unlawful, it would surely have been far better to give a prospective order, so that the overall process of expansion was protected and the decision could be amended properly to take into account the relevant agreement. Quashing retrospectively would mean that the entire process would need to begin again from square one. A prospective remedy would allow the unlawfulness to be corrected at lower cost and in a shorter time, while still recognising—I underline this point—that the initial decision was unlawful.
I also emphasise the points in subsection (8)(c), which ask the court to have regard to
“the interests or expectations of persons who would benefit from the quashing of the impugned act”
and subsection (2), which allows the court to set conditions on the remedy. I hope that those provisions assuage any concerns that individual rights would be prejudiced—on the contrary, they ought to be taken into account by the court.
I have gone into some detail on that point because it was focused on by the Committee. I hope I can deal with the other amendments slightly more quickly with that background.
Amendment 3 removes the ability of the court to attach conditions to a suspended or prospective-only quashing order. These are intended to give the court maximum flexibility. For example, a court might want to make an order prospective only to reduce administrative chaos, but only on condition that parties who may have lost out financially are properly compensated. The conditions may not be necessary in every case, but it is an option for the court where appropriate.
Finally, Amendment 6 aims to ensure that the invalidity of quashed regulations can be relied on in criminal or civil proceedings. As I understand it, the concern of the noble Lord, Lord Ponsonby, is twofold. First, defendants could be prosecuted under regulations that have been ruled to be unlawful yet, because of the powers in this Bill, are treated as valid. That point was made by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.
Secondly, this might mean that claimants or victims would be less able to obtain damages, restitution or compensation. As I have suggested already, the amendment is unnecessary. As the noble Lord, Lord Faulks, said, collateral challenge is not at issue. The Bill does not necessarily prevent such challenges, because it gives the courts powers to formulate the remedies appropriately. In circumstances where provisions which create criminal penalties are being challenged, and have been challenged successfully, I find it very unlikely that a court would decide to use a prospective-only remedy. That is not only because the list of factors includes in subsection (8)(c)
“the interests or expectations of persons who would benefit from the quashing of the impugned act”
and, in subsection (8)(f),
“any other matter that appears to the court to be relevant”.
That would, I think, mean that the court would certainly find a “good reason”—to use the language in subsection (9)—to use a retrospective quashing order, so that any persons, for example, who had paid tax would have a remedy in restitution.
In similar cases where a court considers a suspended remedy, the ability to set conditions on the order would also mitigate any risk of injustice. For example, a court could use a suspended quashing order with the condition that the authority in question does not take any further enforcement action. This goes back to my main point about maximum flexibility. For those reasons, I invite the noble Lords who have tabled these amendments not to press them.
Lord Pannick (CB)
I am very grateful to the Minister and to all those who have spoken in this interesting debate. It is important to emphasise that this is not a technical legal issue. We are concerned here about the integrity of judicial review—a vital safeguard of the rights of all citizens.
I agree with the noble and learned Lord, Lord Falconer of Thoroton, that what is objectionable about Clause 1 is the power of judges to wave a judicial wand and to say that what they have found to be unlawful shall be treated—the word emphasised by the Minister—as if it were lawful.
If there are cases of concern—the noble and learned Lord, Lord Hope, said that there are or may be—a suspended order is quite sufficient to give Parliament time to act. Those in Parliament, not judges, are the appropriate people to validate that which the court has found to be unlawful. New Section 29A(1)(a) meets that need. Indeed, that was the issue in the Ahmed case, where the noble and learned Lords, Lord Hope and Lord Brown of Eaton-under-Heywood, had, as judges say, the misfortune to disagree with each other. It was what the noble Lord, Lord Faulks, recommended in his review.
My noble friend Lord Anderson mentioned the comments of Lord Nicholls for the Appellate Committee in the Spectrum case that prospective overruling might—I emphasise “might”—be appropriate, although not in that case. That was in June 2005. Such a power has never been exercised or come close to being exercised in any case since.
There is an important difference between the common law not ruling out the possibility of prospective overruling and Parliament including such a power in this Bill. I cannot understand why this provision is in the Bill. As I said, it was not recommended by the noble Lord, Lord Faulks. What has provoked the need for new Section 29A(1)(b)? The Minister said that the Government want to put new tools in the judicial toolbox—but why this tool? What case has provoked the need for this provision? When have judges ever lamented the absence of such a power?
My noble and learned friend Lord Brown of Eaton-under-Heywood emphasised the need for flexibility, but Clause 1 is not flexible in an important respect. If this power in new Section 29A(1)(b) is exercised, then under new Section 29A(5), as the Committee has heard, the impugned act
“is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
There is nothing flexible about that. With all due respect, the Minister’s reliance on “treated” is a matter of pure semantics; “for all purposes” means always and for all persons, whatever their circumstances, and even though they have not been represented before the court.
Therefore, I say to the Committee that there is no need for this power in new Section 29A(1)(b). It is inappropriate in principle. But for today, of course I beg leave to withdraw this amendment.
Lord Anderson of Ipswich (CB)
My noble friend just said that no case has come close to applying a prospective-only quashing order since a unanimous House of Lords said in the Spectrum case that they could imagine such cases. How does he explain the British Academy of Songwriters case, which he has heard both the Minister and I develop, and in which Mr Justice Green, as I read his judgment, gave precisely such an order? I should say that that is not the only case.
Lord Pannick (CB)
If he gave such an order, why is there a need for Parliament to step in and deal with the matter? In any event, such an order is more appropriately dealt with by a suspended quashing order so that Parliament, the appropriate authority, can deal with the matter if it sees fit to do so.
The Deputy Chairman of Committees (Lord Lexden) (Con)
Amendment 2, not moved?
“(1A) Provision under subsection (1) may only be made if the court is satisfied that it is in the interest of justice to do so.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will speak to my various amendments quite briefly, because while the detail of the amendments has not been covered, the overall debate around quashing orders has.
Amendment 2 seeks to limit the use of any new remedies issued under Clause 1 to where, in the court’s view, it is in the interests of justice.
Amendment 7 clarifies that the factors which the court considers before making a modified quashing order are a matter for the court’s discretion.
Amendment 8 removes one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. The removal of this factor is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.
Amendment 9 would make an addition to one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration.
Amendment 10 would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.
Amendment 11 would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken. Such actions are too uncertain to form a basis for suspending a quashing order or making it prospective only. Any intentions indicated to the court could change in light of subsequent developments, leaving those affected potentially without any recourse.
The intention behind Amendment 12 is to clarify that the principle of good administration includes the need for administration to be lawful. The Executive and all public bodies are not entitled to act unlawfully. Therefore, in a society based on the rule of law, administration may rationally be categorised as fully good only when it is lawful.
Amendment 15 removes the extra weight which would otherwise be given to subsection (8)(e) by the courts when applying the test created in subsection (9)(b) to establish whether the statutory presumption is applicable.
This range of amendments looks at other aspects of Clause 1. I think we had a wide-ranging debate about Clause 1 in the first group, and I beg to move Amendment 2.
The Deputy Chairman of Committees (Lord Lexden) (Con)
I apologise for getting things into a state of confusion—or nearly—by thinking that Amendment 3 was to be moved.
Baroness Chakrabarti (Lab)
My Lords, I will take the opportunity to jump in briefly at this stage, even though the first three groups to some extent cover similar territory. I know that in the next group we will get into the presumption in particular.
I speak now having had the considerable benefit of listening to the debate on the first group, which the Minister described as being about just giving an extra tool to the judicial toolbox, to be used where appropriate. I think that was the thrust of his remarks. That begs the question of whether it is just a tool in the box and what is and is not appropriate.
It seems that we are dealing with a judicial review of administrative action—of executive action. I know that the Minister said, “Calm down, dears, it’s not all about government as we would understand it; it is about all sorts of administrative action”. I am sure that is right. However, the principle is the same. This is executive action. Some of it is very significant for citizens’ lives and some of it less so. However, it is the job of the judiciary and Parliament, together in different ways, to hold executive action to account.
The traditional method has worked rather well. There are discretionary remedies for the judiciary and the power to legislate for Parliament, including, in extremis, to legislate retroactively. We do not like that, but if anybody is going to do it, it should be Parliament, because it is sovereign and has the democratic legitimacy to do so. That is the debate between my noble and learned friend Lord Falconer of Thornton and the noble Lord, Lord Pannick, on one side, and the Minister and his supporters on the other.
To that, I think the response comes from the Minister, “Actually, the new Section 29A(1)(b) is not doing what you think it’s going to do. This is just remedies; it is not about rewriting history and saying that the unlawful decision or subordinate legislation was always lawful. It is just about the effect of the quashing, not about changing history”. If that is the genuine intention of the Government with this provision, I respectfully suggest to the Minister that some clarification and comfort other than reassurances from the Dispatch Box may be required. That is to deal with the fact that we are not actually giving a retroactive legislative power —let alone duty, to which we will come—to the court.
Maybe, if I can be helpful, there is some room for explicit clarification to that effect. Having listened to the previous group, I too do not see the point of new Section 29A(1)(b) if this is just about giving extra tools to the judicial toolbox to use where appropriate. In all this I am mostly worried about the people not in the courtroom—the people who are not the litigants in the particular case but who rely on that particular judicial review, brought by one individual or a small group of individuals who had the means, either because they had personal means or the benefit of legal aid, which is not widely available these days. I am worried about anything that would shut out the possibility of good administration being provided for all the people—there could be hundreds or thousands or millions—who were not in the room and could then be shut out from justice because of something that it was not appropriate for the court to do. Why? The courts, unlike Parliament, are not best suited to polycentric decision-making. If there is to be emergency legislation because of a particular decision around illegality of regulations and so on, it is better dealt with in Parliament because Parliament will be able to look at all the potential cases in the round and will have the legitimacy to so act. The Government cannot have it both ways.
By the way, I agree with the noble Lord, Lord Faulks: Governments of all stripes get irritated with judicial review from time to time. However, whoever is in power, it is not for politicians to have it both ways and criticise judicial overreach on the one hand but then ask the judges to do their dirty work for them when they have been found to act unlawfully on the other.
Baroness Jones of Moulsecoomb (GP)
I do not see this as a tool in the toolbox but as opening up a nest of snakes. When you use the phrase
“unless it sees good reason not to do so”,
it opens up some real complexity if people start to make further appeals on the basis that there was good reason not to do so or good reason to do so. I do not see that this is any sort of simplification. The Government will probably regret opening this system of quashing because it will add complications when the Government presumably want it to run more smoothly. I cannot see that there is any point to this. I hope that all those legal eagles over there will start circling round our little legal lamb here and explain to him that he has got this completely wrong.
Lord Falconer of Thoroton (Lab)
These are important amendments. They address the botched way that, if these powers are to come in, the exercise of discretion is to be applied. My noble friend Lord Ponsonby is saying that you would use what the noble Lord, Lord Wolfson, describes as the tools in the toolbox only if it is “in the interests of justice to do so”. That is the starting point. That sounds to me a lot more sensible a starting point than the very strange wording in new subsection (9), which is, if the court is to make a quashing order in accordance with new Section 29A(1),
“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so”,
and the condition is that
“as a matter of substance”
an order under new subsection (1) would
“offer adequate redress in relation to the relevant defect”.
Obviously, there is a difference between adequate redress on the one hand and what is the best order in the interests of justice overall on the other. Can the noble Lord tell us why this strange wording has been adopted if all that is intended is the broadest possible discretion in relation to using these two new tools in the toolbox?
My noble friend Lord Ponsonby’s amendments also relate to new Section 29A(8). The Minister said, in reference to prosecutions and taxation, that you would never make a new subsection (1) order, whether a delayed quashing order or prospective only one, and that is clear, he says, from new subsection (8). He relied in particular on new subsection (8)(c), which refers to
“the interests or expectations of persons who would benefit from the quashing of the impugned act”.
If I have been prosecuted under a regulation that was unlawful, I would expect my prosecution to be upheld. But then, new subsection (8)(d), refers to
“the interests or expectations of persons who have relied on the impugned act”.
Therefore, if, for example, it is made unlawful to do a particular thing and I have had my dog put down as a result or I have bought lots of expensive equipment to comply with the criminal law as I thought it was, my interests or expectations under new subsection (8)(d) would be “Let the law stand”. So new subsection (8)(c) points in one direction and new subsection (8)(d) in another. If it is the Government’s intention that all prosecutions brought under unlawful regulations or laws will never be prospective only, and if it is their intention that taxation raised under unlawful regulations will never be prospective only, in my respectful opinion—I may be wrong, in which case let me corrected by the noble Lord, Lord Wolfson—new subsection (8) does not get him anywhere near that. Indeed, it leaves the judge to decide and the judge has to decide on the basis of new subsection (9).
I therefore strongly agree with my noble friend Lady Chakrabarti. A bit more work needs to go into this to get to a point where there is clarity about what the Government intend, if their intention is that these are only two tools in the toolbox, with complete discretion over how to use them. If that is what they want, my noble friend Lord Ponsonby’s amendments are giving them quite a good opportunity of getting there.
Lord Brown of Eaton-under-Heywood (CB)
I hesitate, my Lords, to speak again. I feel that so much of what has been said has been dancing on the head of a pin. I have to say that I have come to see new subsections (1)(a) and (1)(b) in new Section 29A in Clause 1 not as dramatically different things but rather as a continuum. They cover a spectrum; indeed, there is an overlap in between them, in the middle. There is no question here of subsection (5), to which the noble Lord, Lord Pannick, objects so strenuously—the one about being treated, and so forth. It is always subject, be it noted, to new subsection (2) of new Section 29A. Any of these orders under new subsection (1)—in other words, whether it is an order under new subsection (1)(a) or (1)(b)—can be made subject to conditions. Those conditions clearly would control the extent to which there is to be any degree of retrospectivity or retroactivity, call it what one will.
I am a huge admirer and respecter of the noble Baroness, Lady Chakrabarti, but I do not see this as being, so to speak, comparable to Parliament infinitely rarely passing legislation retroactively. We must always remember, must we not, that judicial review is, at the end of the day, a discretionary remedy; you do not actually have to make these orders anyway. I still see this, as the Minister would urge, as a tool in our toolbox, giving us the maximum flexibility and discretion to do what justice requires to all—which includes, of course, to those who are not in the courtroom, who do not have legal aid, and all the rest of it. With criminal convictions—taxation and things—one trusts and assumes that the court is going to behave correctly. In the Percy and Hall case, with the good lady trespasser and PC Hall who was being sued for damages for having arrested people who on the face of it were invading this territory, contrary to apparently valid by-laws, I pointed out in the judgment that, if and insofar as she had actually had criminal convictions, of course they would be set aside. But that is merely an aspect of judges behaving, as one hopes and believes they will, in a judicial manner.
So I respectfully continue to support this clause. I said at Second Reading that I was agnostic or entirely relaxed—I think that was the term used by the noble Lord, Lord Anderson—as to whether it is “may” or “must” in new subsection (9), and I remain so. “Must” simply urges the judges to give attention to this new tool in their armoury or toolbox. But they do not have to, and they will not, unless by all the conditions that they wanted to impose, they have made it clear that what they are doing will not be contrary to justice.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group of amendments, tabled by the noble Lord, Lord Ponsonby, is designed to take the sting out of the provisions in Clause 1, both as to the circumstances on which suspended or prospective-only quashing orders may be made and as to the way in which the discretion should be exercised. If passed, the amendments would each mitigate the damage which in my view is inflicted on the rule of law inherent in Clause 1. However, if all were passed, they would still by no means eliminate it. As has been pointed out, the worst part of Clause 1—in a sense, the elephant in the room of the first two groups—is the presumption, which we shall come to in the next group, which has been spoken to by the noble Baroness, Lady Jones of Moulsecoomb, and the noble and learned Lord, Lord Falconer, and which is, I suspect, opposed by the overwhelming majority of those who have spoken. The noble Lord, Lord Anderson, spoke to it in the last group, and said that his support for the prospective quashing-order power was conditional on the removal of the presumption.
I suggest that there is also a flavour to Clause 1 that is inherently offensive. We are faced with a proposal that not only permits the suspension of a quashing order and the retrospective validation of unlawful acts—and we accept the power of suspension—but dictates to the court, by new subsections (8), (9) and (10), how the court should exercise its discretion. Once again, I have to say that I am impressed but dubious about the optimism expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that the Government are concerned only to give judges tools in their toolbox which they would not use, and that they can exercise their discretion in any way that they wish, because that is not actually how these new subsections work—and they are wrong in principle to dictate the way in which the discretion is exercised. The court when considering judicial review—
Lord Faulks (Non-Afl)
I thank the noble Lord for giving way. Of course, new subsection (8)(f) refers to
“any other matter that appears to the court to be relevant.”
So a court can decide that there are other matters that it thinks are important. This is not restricting or fettering the discretion of the court. Why is it so offensive?
Lord Marks of Henley-on-Thames (LD)
It is absolutely right that the court can consider any other matter, but it must consider all the factors in new subsection (8)(a) to (8)(e). That is mandating the court where some of those factors may not be of any interest to the court at all. The noble and learned Lord, Lord Falconer, was right to point out that there is a potential conflict between the factors in subsection (8)(c) and (8)(d). For Parliament to be telling judges how they should exercise their discretion and what factors they should have regard to without giving them the option of disregarding some factors is wrong.
The court is exercising, as we all know, a supervisory jurisdiction over executive action or the claimed abuse, or excess, of delegated powers. The noble Baroness, Lady Chakrabarti, was right to argue that the way in which judicial review has worked in practice—and I suggest that it is the most important development in civil or administrative law over the past 50 years, above any other development that we have had—is that the judiciary, the Executive and Parliament work not exactly together but in balance, so that the powers are exercised in accordance with the law. With respect to what the noble Lord, Lord Faulks, says, it is inappropriate and regressive for the Executive to tell Parliament what factors they should consider when performing that supervisory role. The courts should be left to consider executive action in accordance with the law passed by Parliament and to grant remedies accordingly. They do not need, and should not be tied down by, restrictive provisions that prevent them doing justice taking into account factors that they think are important.
Amendment 2, moved by the noble Lord, Lord Ponsonby, would at least limit the exercise of the provisions in Clause 1 to powers where the court was satisfied that it would be in the interests of justice to do so. I suspect that that amendment will be opposed on the basis that it would introduce an unnecessary fetter on judicial discretion—and I suggest that that is entirely ironic, because the whole of new subsections (8), (9) and (10) are precisely targeted at fettering the courts’ discretion, and it is to that that we object. It is also ironic that, if passed, this would be the only mention of the interests of justice in the clause.
Amendment 7 would make the new subsection (8) factors permissive, rather than mandatory. Therefore, it removes the point that I made in answer to the intervention of the noble Lord, Lord Faulks, that the court must consider factors which have an inherent conflict.
Lord Wolfson of Tredegar (Con)
My Lords, I will respond to the amendments in this group in grouping order. I start by making a point about the list of factors. The purpose of the list of factors in subsection (8) is, as I said in the previous group, to allow the court to respond flexibly in the interests of delivering justice. However, it is important that the court considers—I emphasise “considers”—whether the remedies to be used are appropriate. These are the factors to which the court must have regard.
Lord Falconer of Thoroton (Lab)
Is the Government’s intention that these two remedies—new subsection (1)(a) and (b)—should be in a different category from every other remedy the court has under judicial review?
Lord Wolfson of Tredegar (Con)
Yes and no, in the sense that this gets us into the argument about the presumption, because the presumption applies to only these two remedies. To that extent, the point made by the noble and learned Lord is correct: that is the nature of the presumption, which we will get to in the next group. We want the court to specifically consider whether these remedies are appropriate and to use them, as the ending of new subsection (9)(b) says,
“unless it sees good reason not to do so.”
Because these are new remedies, we have set out a list of non-exhaustive factors which the court must consider. These are the factors in new subsection (8)—and it is expressly non-exhaustive in new subsection (8)(f). I agree with the noble and learned Lord that, as he put it, these are important considerations. However, we want to encourage consideration of their use; we are certainly not mandating their use in any case.
The other thing we want to do, by putting these factors in the Bill, is to provide consistency in the jurisprudence from the start as to how the remedies are used in the cases which come before the court. I remind the Committee that we consulted on the sort of factors that should be included in the list. We received some very useful contributions in response to that consultation. However, the “must” in new subsection (8)—which is contrary to the proposal in Amendment 7 before the Committee—requires the court to consider each of the factors in the list. Coming to the point made by the noble Lord, Lord Marks of Henley-on-Thames, the “must” does not require the court to find that every factor in the list applies. It does not require the court to say that all the factors are relevant in the instant case. The court may consider that some of these factors in the case before it are not relevant at all; some might have very limited weight or only marginal relevance. All the court must do is to consider them. As the noble Lord, Lord Faulks, pointed out, the court may add to its consideration absolutely anything it wants under new paragraph (f).
Lord Marks of Henley-on-Thames (LD)
I am grateful to the noble Lord for giving way, but is that right in relation to new subsection (8)(c) and (d)? The court must have regard to the interests or expectations of persons who would benefit from the quashing and of persons who have relied on the impugned act. There is nothing voluntary about that. Those interests may be in conflict. Is it right that the court should always need to have regard to those interests?
Lord Wolfson of Tredegar (Con)
First, they may not apply at all, because there may, in a particular case, not be any person who would benefit from, or has relied on, the quashing. Secondly, the court must have regard to it, but only having regard to it, the court can give it such weight as it deems appropriate. Absolutely, some of these matters may be in conflict. That, as we have heard, is nothing novel in the field of judicial review when the court must consider what remedy to issue in every case. Indeed, it goes beyond judicial review. There is nothing new in principle here at all. What we are doing is setting out factors which the court should have regard to. The court can place such weight as it wants on any of these, and the court can have regard to any other factors as well.
Lord Pannick (CB)
I am very grateful to the Minister. He emphasises that the court can have regard to other factors. Does he accept that it would be permissible for the court to ask itself the question set out in Amendment 2? Is it satisfied that it is in the interests of justice to make one of these orders? Is it permissible for the court to say that it would not be in the interests of justice in the circumstances of this case, therefore it will not make one of these orders?
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Lord. I was going to come to interests of justice slightly later, but let me take the point now. I do not want to drift into the presumption, but these issues are related to an extent. If it is not in the interests of justice to make the order, there would be good reason not to do so in new subsection (9). Therefore, the noble Lord’s question answers itself.
Amendments 2 and 9 add further factors to the list, including a condition that the court may use the new remedies only where it is satisfied that their use will be in the interests of justice. In addition to the point I have just made to the noble Lord, Lord Pannick—perhaps I am putting his question in reverse—I struggle to foresee a situation where the court, having considered new subsection (8) and the presumption, would think it appropriate to apply one of the new powers where the court none the less considered it against the interests of justice to do so. Indeed, I am making the same point: you do not get there, because if it is against the interests of justice, there must be “good reason” not to use one of the orders.
Furthermore, coming back to the amendments, if timeliness is relevant to the case, the court can consider that under the current drafting, in particular the factors set out in new paragraphs (c) and (f).
Those amendments sought to add some factors. Amendments 8 and 11 seek to remove a factor from the list and remove an important provision—the need for the court to consider
“any detriment to good administration that would result from exercising or failing to exercise the power”
and the need for the court to consider actions that a public body proposes or intends to take but has not yet taken. The point of clearly specifying that the court should have regard, not only to actions taken but to actions proposed to be taken, is that actions a public body proposes to take could sometimes be a relevant factor. For example, let us say that a government department recognises that regulations may be quashed but has already stated its intention to make new regulations and has announced the date by which they will be in force. This could help a court to reach a decision on whether a suspended quashing order is appropriate in principle and to determine how long the suspension period should be.
Amendment 10 seeks to modify the fourth criterion, paragraph (d), making it so that the defendant is responsible for identifying the interests of those who rely on legislation being quashed. I suggest this amendment is unnecessary. If a suspended quashing order, or a quashing order with limited retrospective effect or none, might be appropriate, it will always be in the interests of the defendant to set out why that is the case. The defendant would want to encourage the court to use that remedy rather than the ab initio quashing order. So, in effect, the onus is already on the defendant or respondent to demonstrate who will be affected if the impugned act is quashed immediately, ab initio; and that would obviously include identifying who has relied or is relying on the impugned act.
Amendment 12 seeks to modify the same factor in paragraph (d) by providing that the principle of good administration includes the need for administration to be lawful. I think I said in the previous group that that really is, if I may say so, motherhood and apple pie. Good administration is lawful administration. We all expect our Government and all decision-makers to abide by a set of lawful principles and duties that are conducive to effective administration. I am therefore not persuaded that legislating to say that good administration is lawful administration adds anything that is not already obvious or, indeed, inherent in the drafting.
Amendment 15 seeks to remove the requirement in subsection (10) for the court to take “particular” account of any action taken or proposed to be taken, or any undertaking given by a person with responsibility, in connection with the impugned act. This is intended to draw the court’s attention to any response the defendant may have already provided, or be in the process of providing, to the relevant defect. We see this subsection as a positive measure which could encourage a defendant to consider how to resolve matters proactively by offering suitable redress where it is appropriate, before the court need order it. It is also aimed at ensuring that the court takes particular care in considering any redress already provided so that defendants do not feel that they have to provide redress twice.
Finally, I come back to the point I was making about tax. I think the noble and learned Lord, Lord Falconer of Thoroton, asked me whether I was satisfied with the phrase “offer adequate redress”. I certainly am satisfied with that phrase, and I think the noble Lord, Lord Anderson of Ipswich, has an amendment in the next group that focuses on it. He certainly raised it at Second Reading, and I will be coming back to that. When I was referring to tax in the previous group, I was saying it would be very unlikely that a court would want to use a prospective remedy in that situation. I did not say “never” for two reasons. First, it is always up to the judge in any particular case. Secondly, one has to consider other effects even in tax cases. There could be cases where, for example, under tax legislation, somebody has not paid, but they have been given a refund, or they have a rebate or a tax credit. In those situations, it may be right, if it is positive to the taxpayer, so to speak, to use a prospective remedy even in tax cases. That is why I do not say “never” but in the case the noble and learned Lord was putting in the previous group, of when people have paid, in no circumstances does it seem likely that a prospective remedy would be appropriate.
I hope I have dealt with all the points raised. For the reasons I have set out, I invite the noble Lord to withdraw his amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all noble Lords who have spoken in this debate. As my noble and learned friend Lord Falconer said, this suite of amendments was really an attempt to get clarity. Some of them were probing amendments, and some we may return to at a later stage. As my noble and learned friend said, there are potential conflicts, and he gave the example of that between subsection (8)(c) and (d). Those two elements would need to be considered within the broader context of the whole of subsection (8).
Member’s explanatory statement
This amendment would remove the presumption that where a suspended or retrospective-only quashing order would offer adequate redress, such a quashing order should be made in preference to an ordinary quashing order.
Lord Anderson of Ipswich (CB)
My Lords, I rise to speak to my Amendment 13. Two of the greatest joys of practice at the Bar are finding oneself on the same side as the noble Lord, Lord Pannick, and feeling that the noble and learned Lord, Lord Etherton, might possibly be with you. On this amendment, I am experiencing both those joys, because both noble Lords, along with the noble Lord, Lord Ponsonby, have signed it.
Amendment 13 would remove the proposed new subsections (9) and (10), by which the Government seek to enlist our aid in watering down the remedies judges might grant in the unfettered exercise of their discretion. Such interference is unjustified as a matter of principle. Judges are skilled technicians who know that every case turns on its particular facts. The Clause 1 remedies are specialised tools, the uses of which are best judged not by remote control but by those dealing on the ground with the infinite variety of cases that human ingenuity throws at them.
Two factors should incline us to particular caution. The first factor is that the Government are themselves a party to most judicial review cases. Subsections (9) and (10) look very like an attempt to tilt the playing field against those who seek to hold public authorities to account for their unlawful actions. The judges can and should be trusted to serve the interests of justice without presumptions designed to serve the interest of their promoters.
The second factor is that the remedies in respect of which the presumption applies have always been treated by the courts themselves as suitable for exceptional cases only, not just in this jurisdiction but in other jurisdictions where they are used; in other words, the Government are attempting to reverse a presumption that the judges have themselves developed in the interests of justice.
Even apparently benign fetters on judicial discretion may have unanticipated consequences. So, despite the good intentions behind it, I am a little wary of the words that would be substituted by Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. Had this been the law, it would no doubt have been argued that the rights-holders must have their pound of flesh from the innocent copiers of CDs, since to restrict the scope of the quashing order could have denied them an effective remedy. I am not sure that would have been a just result.
The Minister, as the consummate advocate he is, knows that his best chance of defending this presumption is to minimise its significance. Indeed, the first time he mentioned it this evening, he described it as a so-called presumption, although the adjective was later dropped, and his Second Reading speech scarcely acknowledged its existence. He preferred to emphasise that it is
“ultimately up to the judge to decide”
whether to take out the tools provided by Clause 1, that
“this does not limit the flexibility of the court”,
and that subsections (8) and (9) are simply
“there to ensure a consistent but rigorous approach to identify the appropriate remedy in each case.”—[Official Report, 7/2/22; col. 1380.]
Yet subsection (9) is not as benign as that. It creates a rebuttable presumption in favour of the Clause 1 remedies in any case where they would offer adequate redress—a phrase whose meaning, as we discussed at Second Reading, is highly uncertain and obscure.
Yes, a robust interpretation by the highest courts might confine it to very limited circumstances. However, such an interpretation would take time to achieve and, in the meantime, the steer inherent in this proposed new subsection will, I am afraid, be picked up and will retain its power to influence and even intimidate the less experienced judge.
Proposed new subsection (10) makes it worse by singling out for a special weight the factor identified in proposed new subsection (8)(e)—a factor that is itself uncertain and problematic, for reasons we have already heard. Particularly troublesome, going back to Amendment 11, is the weight that would have to be placed on action proposed to be taken by a public authority in respect of which no binding undertaking is, however, offered to the court.
However, my point is wider ranging. The particular weight given to one set of factors is in itself objectionable in principle, as a further limitation of the court’s discretion. I sum it up in this way: if proposed new subsections (9) and (10) constrain the free exercise of judicial discretion, they should be resisted on that ground alone; if they do not constrain it, they are pointless clutter and, for that reason, should be removed from the Bill. The underlying point is that there should be nothing in the Bill to discourage judges from holding the Government accountable, where the interests of justice require, for the past consequences of their unlawful acts. I hope that by the time we have finished with it, that is what we shall have.
Lord Beith (LD)
My Lords, if I were to give my apprentice joiner grandson a tool for his toolbox, I would not say, “In all circumstances, other than quite limited circumstances, this is the tool you must use and ignore the ones you already have”. The Government’s toolbox analogy does not seem to work. I am glad to have the opportunity to raise a question before the noble Lord, Lord Faulks, contributes to the debate—as I hope he will—because perhaps he can throw further light on the clarity of the recommendations of the Independent Review of Administrative Law on the issue we are debating. Paragraph 3.69 considered what would happen if the committee’s recommendation for a non-presumed format for these circumstances were followed and stated that, if Section 31 were amended in this way,
“it would be left up to the courts to develop principles to guide them in determining in what circumstances a suspended quashing order would be awarded, as opposed to awarding either a quashing order with immediate effect or a declaration of nullity.”
It was a very clear recommendation, and the Government should have taken that advice, as they took much other advice from the excellent document produced by the Independent Review of Administrative Law.
I will enter one other point into the debate. It was referred to by the former Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton: the issue of adequate redress. The way the phrase appears in proposed new subsection (9)(b)—
“offer adequate redress in relation to the relevant defect”—
worries me. It may not have been drafted with this intention, but there is a very great danger if “adequate redress” is seen as a matter which concerns only the person pursuing the action. It is perhaps too rash to say “most”, but many judicial review cases, by their very nature, have a far wider effect than simply on the individuals involved in the case. That is, indeed, recognised in the Government’s own formulation of proposed new subsection (8). It refers both to those
“who would benefit from the quashing of the impugned act”
and those who had expectations and
“relied on the impugned act”.
There will be large numbers of people in many judicial review cases who will be affected by the outcome, either because an action they have already taken will be deemed to have been unlawful at the time it was taken or, indeed, because the law on which they have relied to enforce a regulation has now been found not to have been good or effective law at the time. The breadth and implications of judicial review cases—which is why the subject arouses such widespread interest—is potentially threatened if the concentration becomes on “We’ve fixed it for the unfortunate person who appears before us in this case” without having proper regard to the very large number of people who will be affected. Now, courts do have regard to it and that is a feature of many of the cases referred to in the debate. I am suspicious that the Government wording appears to discourage them from doing so.
Lord Etherton (CB)
My Lords, as the noble Lord, Lord Anderson of Ipswich, indicated, I am happy to join myself with the amendment. Both the Law Society and the Bar Council oppose the inclusion of proposed new subsection (9), as do many others and for very good reasons. It is worth pointing out at the outset that the provision is not based on any recommendation of the Independent Review of Administrative Law headed by my noble friend Lord Faulks. To my mind, this part of new Section 29A is the critical provision because it colours the appropriateness or otherwise of what has gone before: in particular, the powers under the proposed new subsection (1)(a) and (b). It is objectionable, I suggest, for three reasons: it is unnecessary, it is wrong in principle, and it is potentially dangerous in practice.
It is unnecessary because proposed new subsection (8) sets out a comprehensive list of matters to be taken into account by the court, including, most importantly under (f)
“any other matter that appears to the court to be relevant.”
There is simply no need for any other guidance or mandatory direction to the court if the courts are to be left to choose the most appropriate remedy to right the wrong that has been committed. A problem would arise only if what is intended is that in certain circumstances the judge should not be left to choose the most appropriate remedy but one of the other quashing remedies to be found in the proposed new subsection (1).
As I understood the Minister’s answer to a point raised by my noble Lord, Lord Pannick, if the judge feels it would not be appropriate to impose a quashing order, notwithstanding the trigger in proposed new subsection (9) that would
“as a matter of substance, offer adequate redress”,
because the judge felt there would be injustice, that would be good cause. Well, if the judge feels that the appropriate remedy in all the circumstances to remedy the wrong committed by the public body is different from the quashing orders in proposed new subsection (1)(a) and (1)(b), that would be an injustice. So one asks oneself, “What on earth is the point of it all?” since the answer given by the Minister that I have just mentioned indicates that what one is left with is a free-ranging discretion to be applied in an appropriate judicial manner, having regard to all the circumstances to rectify the wrong that has been committed. So I am afraid I am left at a loss to understand exactly what it is that makes the proposed new subsection necessary or logical.
I have also said that proposed new subsection (9) is dangerous and wrong in principle. First, it provides a precedent for interference by the Executive with judicial discretion. In effect, it politicises the exercise of judicial discretion in carrying out the judicial function of selecting the most appropriate remedy to right, so far as possible, the wrong that has been committed.
Secondly—a point I raised at Second Reading—the trigger for the mandatory direction in proposed new subsection (9), that the court must exercise its powers under subsection (1), the new quashing powers, if that would
“as a matter of substance, offer adequate redress”
is bound to be the subject of dispute and appeals. It introduces a hard-edged objective test, quite different from the judge’s discretion, which will enable disappointed litigants an opportunity to litigate and appeal further, and that surely is something we must avoid if possible.
Lord Pannick (CB)
My Lords, I agree with those who have spoken, and particularly with the noble and learned Lord, Lord Etherton, who said that these provisions will provoke litigation. Speaking as counsel practising in judicial review, these provisions will give ample opportunity for those representing disappointed litigants to bring appeal proceedings based on failures by judges to apply the provisions in a proper way.
I have added my name to Amendment 13, moved by the noble Lord, Lord Anderson, because, if judges are to be given the powers set out in proposed new Clause 29A(1)(a) and (b), it is because Parliament has decided that judges can be trusted to exercise the new functions widely and justly. The Minister emphasised at Second Reading and again today that the exercise of the new powers should cause Parliament no concern because it will be for judges to decide. If Parliament follows that approach, it is then surely unnecessary and inappropriate for Ministers to seek to tilt the balance by creating presumptions to try to influence the judges as to which tools from the toolbox—to use the Minister’s expression—it is appropriate for them to pull out and use. The more the Minister seeks to suggest—as I think he will in replying to this debate—that the presumption is weak, the less clear it is why it is included at all.
I make one other general point. We are considering an important Bill and the amendments we are debating this evening are significant. The Minister, as always, is addressing all relevant points in a most constructive and helpful manner, but it is, at least to me, surprising and regrettable that there are now, and have been for almost all of our debate this afternoon, no noble Lords on the government Back Benches.
Lord Hope of Craighead (CB)
I shall say just a few words. It is very strange that there is nothing in the Explanatory Notes to explain why this presumption is in the Bill at all. I have searched the notes for guidance and can find nothing. That point aside, I stress the point made by my noble and learned friend Lord Etherton about the danger that lurks in proposed new subsections (9) and (10). If one is sitting in a court trying to work one’s way through the various phrases set out there, they create a number of traps—and certainly opportunities for the disaffected litigant to challenge the decision. There are value judgments to make about what is “a matter of substance”; you must address your mind to what is meant by the phrase “adequate redress”; and you must find whether there is a “good reason” for doing or not doing something. These are all things you must face up to, and you must explain yourself, because it is all qualified by the words “is to do” or “must do”. A judgment that is going to stand up to scrutiny in the Court of Appeal will have to work through all those phrases and explain what decision the judge has taken in order to support the decision that is ultimately made.
This remedial tool is being encrusted with so much stuff that it is almost unusable. It really is ridiculous to overwork to this extent the amount of directions being given to the judge. It is not necessary, it is bad legislation and it is extremely dangerous. It is not a remedial tool at all; the Government are trying to create something in their own interest, as has been pointed out already, and make it as difficult and dangerous as possible for judges to use this tool. It should certainly not be legislated for in this form. Therefore, I strongly support the removal of these two subsections.
Lord Faulks (Non-Afl)
My Lords, I feel tempted to respond to the contribution of the noble Lord, Lord Beith. It is absolutely true that this particular form of words does not find its way into our report in any way. That, of course, does not necessarily mean that it is a mistake to include it in the Bill.
The noble Lord, Lord Anderson, gives a choice that is not very inviting: either this is a mere surplusage, in which case it should go, or it is potentially something that an inexperienced judge might get wrong or feel compelled by to make an order that he or she would not otherwise want to make. I wonder if that does not slightly overstate the case. I should say that I am not wholly convinced of its necessity, but I do not think it anything like as damaging as has been described.
After all, before you even get to the question of whether the court is to make a quashing order, a considerable number of hurdles have to be surmounted, as do a number of considerations which we have canvassed during the course of the debate. So, if the “interests of justice”, or whatever term that the judge directs himself or herself to, have allowed them to reach the conclusion that it is not appropriate to make a quashing order, this question of a presumption, whether it is a weak or a strong one, simply does not arise. Of course, the judge can also simply say, “Well, I take into account subsection (9), but I don’t see a good reason for making the order”, having regard to whatever it might be. I do not see it as quite the same hurdle race that the noble and learned Lord, Lord Hope, described it as.
I will listen carefully to the Minister on why it is in there. I do not think it particularly harmful, but there is, as it were, enough here to allow the judges to do what is fair without necessarily including this particular presumption.
Baroness Chakrabarti (Lab)
My Lords, I congratulate the noble Lord, Lord Anderson of Ipswich, on his Amendment 13. He rightly suspected that my Amendment 14 is a little more in the way of a probing amendment. I tabled it because of the concern I expressed earlier about the people not in the room when, by definition, a judicial review is brought by one party against a government department.
My Amendment 14 would be far less preferable to his Amendment 13 if we could clear up the problem with proposed subsection 29A(1)(b). As I said earlier, there is the question of whether that starts engaging the court with a more legislative function in deciding exactly who is and is not to benefit from the wider class of citizens not in the room.
So, we are back to the Minister’s saying that this is just about putting some extra discretionary tools in the judicial toolbox, to be used where appropriate. If that is the case and we could clear up the issue with paragraph (b), I would have no problem with allowing this extra tool, so that, in some cases, the quashing could not take effect until a future date, and the department could sort itself out and effect new regulations or, if necessary, even come to Parliament with emergency legislation. As a former government lawyer, I would have no problem with that possibility—but why all the rest of it?
On the one hand, the Minister talks about trusting the courts; on the other hand, we are all to be tied in knots with our various interpretations of all the various differently tilted tests that follow. That is probably the difference between me and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I say that because I have genuinely changed my mind about various aspects of this during Committee. If it is just a tool in the toolbox, make it an open-textured discretion that allows the suspended quashing order, and leave the rest to the court.
I shall make two further points. The noble Lord, Lord Anderson, made an essential point that is worth repeating: central government is a party to most judicial reviews and certainly the ones that are going to cause concern to the Government. So the Government can relax a little at this stage, knowing that any crucial arguments about the effect of particular discretionary remedies on wider public administration will be put by government lawyers to the court. Finally, the noble Lord, Lord Pannick, talked about the risk of litigation with an overly complex provision. That has to be taken seriously. I hope it will not be said in response that that amounts to a threat. That has been said to me in the past when I have suggested that a convoluted provision will lead to litigation. It is not a threat; it is based on experience of what happens when discretion is tied in knots in that way. Inevitably, that leads to more litigation, not less.
Lord Thomas of Cwmgiedd (CB)
My Lords, I entirely support the amendments put forward, for the reasons that have been given. I do not want to add to them. It seems odd to give judges discretion and say that we trust them, then immediately circumscribe what they can do.
That leads to my concern about new Section 29A(10). When listening to the Minister earlier, I asked myself why new Section 29A(8) was there because all the points are perfectly obvious. I wonder whether we are looking at a new technique here being laid down for future use. Do you list perfectly obvious things in new subsection (8) to bring in the killer in new subsection (10)? I hope the Minister can assure us that we are not going to see in any future legislation dealing with judicial review—who knows whether there will be any—the codification of perfectly obvious principles as a means of bringing in by the back door what one sees here in new subsection (10).
Lord Faulks (Non-Afl)
Perhaps I might briefly add to that point before the noble and learned Lord, Lord Falconer, speaks. An absolutely classic example of legislating for discretion would be Section 33 of the Limitation Act, which courts are applying every single day of the week, which lists a large number of factors which the court may take into account and concludes by saying that it may take any other thing into account. Although I absolutely take the point made by the noble and learned Lord, Lord Thomas, there is nothing particularly unusual about setting out in detail the discretion and then, nevertheless, allowing the court to take into account other matters.
Lord Falconer of Thoroton (Lab)
I have just two points. First, I agree with the noble and learned Lord, Lord Hope, that no reason is given as to why there is the presumption, but it is worth emphasising that the Explanatory Notes accept that there is a presumption. What is being said is, and it is the intention of the Government, that, if a quashing order is to be made—certain sorts of judicial review will always lead to a quashing order; for example, if a power to prosecute people has been given without justification from primary legislation—there is to be a presumption that the quashing will be delayed and that, subject to the condition in new Section 29A(9), you will use either the delay or prospective-only power.
Lord Judge (CB)
My Lords, I had no intention of intervening in this debate, but the question that seems to arise is this: why are we giving a presumption which is in favour of the wrongdoer?
Lord Marks of Henley-on-Thames (LD)
My Lords, I entirely support the removal of the presumption. I will never try to achieve the brevity of the noble and learned Lord, Lord Judge, but he is absolutely right: this is a presumption in favour of the wrongdoer.
The only reason my name is not on Amendment 13 in the name of the noble Lord, Lord Anderson, is that I failed to secure a place among the first four supporters who were rushing to support the amendment. There is no getting away from the fact that, by new Section 29A(9), the Bill proposes making the exercise of the Clause 1 powers, prima facie at least, mandatory. If the “adequate redress” condition is met, and unless the court sees good reason not to do so, it must exercise both powers—not just one of the powers, according to the statute—both to suspend to suspend or delay the quashing order and to make it prospective only.
I agree with the noble and learned Lord, Lord Etherton, that this presumption colours the approach that is required to be taken by judges. I believe that understates the position. He was also right to say that it was dangerous and wrong in principle.
The Minister’s position on behalf of the Government is that the court is not bound to exercise these powers if it sees good reason not to do so. It follows from that that these are therefore wide discretionary powers and that any judges worth their salt—if I may paraphrase what he was saying at Second Reading—would find ways of not applying the presumption. If that is right then the noble Lord, Lord Anderson, is right that subsection (9) is entirely unnecessary. If the judge were to be entitled to exercise a wide discretion, there would be no reason to mandate the exercise of the powers in any particular way and we would be back to the position taken by the noble Lord, Lord Pannick, that the Government should trust the judges. I fear that the only reason the Government want to have the powers exercised on a mandatory basis is to ensure that there is a default position. That is why it has been correctly labelled a presumption. My noble friend Lord Beith’s analogy is absolutely right: if you have a toolbox, you should not be bound to use any particular tool, whether it is right or wrong for the job in hand.
My noble friend Lord Beith was also right on the question of “adequate redress” as an unsatisfactory and difficult-to-interpret test. Not only would it encourage unnecessary appeals, as the noble Lord, Lord Pannick, said, but it is also entirely unclear for whom the redress has to be adequate. The natural meaning of the words would be adequate for the applicant, but that is wrong in a public law case; it has to be adequate for every person materially affected. That is the point made in the amendment put forward by the noble Baroness, Lady Chakrabarti, although she modified her position on it slightly in addressing it today. Other parties affected need to be protected, not just because that is at the essence of public law but because those other parties are, by definition, not before the court and not personally represented when the judicial review application is made.
The Minister’s approach that judges will not regard themselves as bound by the presumption because they have this wide discretion, I suspect, underestimates the loyalty to the law felt by judges. Where there is a paradigm case that calls for the exercise of the power, under the compulsory wording of the Bill judges will strive to give effect to the will of Parliament and the principle that the law is there to be obeyed. That is embedded in their DNA. Therefore, the Government’s view that judges will bend over backwards to find ways around the presumption so as to avoid legalising unlawful acts of government is deeply cynical. It may shed significant light on the Government’s view of the rule of law, but it is completely inaccurate about the approach of the judges, who will apply the presumption if it becomes law lawfully and in so doing will considerably weaken the effect of judicial review.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by noting that my noble friend Lady Chakrabarti said that Amendment 14, to which I have my name, is a probing amendment and I think that she rightly said it is less preferable to Amendment 13 if we can clear up the element of new Section 29A(1)(b) about removing retrospective quashing. I agree with her point on that.
I want to address a different point. It was actually raised in the House of Commons by the government Minister at the time when he talked about unintended consequences. I will read out the briefing I have on this. In Committee, the Minister suggested that limiting the retrospective effect of remedies could mitigate the potential negative and unintended consequences that some public interest judicial reviews could have. For example, if a statutory instrument concerning social security is quashed, immediately it could remove all the social security protections provided for in that statutory instrument because they would no longer have any legal effect. But the argument is not convincing. The mere fact that some judicial reviews could potentially produce unintended consequences does nothing to argue in favour of a presumption. I was amused by the noble Lord, Lord Anderson, picking up that the noble Lord, Lord Wolfson, referred to a so-called quashing order. In the vast majority of cases, a court will not issue a quashing order in any event. In most cases, a court merely declares a statutory instrument to be unlawful and leaves it to the Government to amend the instrument in a way thought necessary by the Government. Indeed, even where human rights were violated between 2014 and 2020, the courts have quashed only four statutory instruments out of 14 successful challenges.
So we are not talking about very many cases and the points made by the noble Lord, Lord Anderson, and in support of his amendment, I think, are absolutely right. I shall listen with interest to the Minister’s response.
Lord Wolfson of Tredegar (Con)
My Lords, I begin by responding to the noble Lord, Lord Pannick, to whom I am grateful for his characteristically kind words and his tender concern that I am replying to these matters not so much on my own and without a Leader as on my own and without any juniors. That is, I am without much support from those Peers who also take the Government Whip. I would not want to make this point publicly, but in the undoubted privacy of these discussions I can perhaps venture the suggestion that the undoubted attraction of a debate with the noble Lord, Lord Pannick, and others, about the finer points of judicial review might possibly have failed to outshine the annual dinner—which has now been awaited for a couple of years—of the Association of Conservative Peers. But that is mere speculation.
More substantively, let me turn to Amendments 13 and 14. These amendments seek to remove subsections (9) and (10), which have come to be known as the presumption, but I stand by calling it a so-called, or low-level, presumption, for reasons that I will set out. As I explained in answer to the question put to me in the previous group by the noble Lord, Lord Pannick, if the court regards there as being good reason not to apply either of the new remedies, then it does not have to; the presumption essentially falls away. The question then put to me, which I will come to, is: why have it in the first place? That is the either/or which a number of contributors have put to me this evening.
The aim, as I have said in previous groups, of Clause 1 is to aid good administration and provide greater flexibility to the court in giving remedies. The new remedies are a very useful addition to the courts’ toolbox —to use that metaphor again—and the presumption, we believe, allows the courts to consider their use and will make sure that a body of case law develops quickly around the appropriate use of new remedies.
The policy intention, therefore, behind the inclusion of the presumption is to encourage judges to use the new remedies where appropriate, and for that I really do make no apology. I do not see that as any fetter on judicial discretion or as the Government intruding into places where they should not be. The independent review, as we have heard, recommended that courts should be given a statutory power to make suspended quashing orders, as it thought that they would be beneficial if used appropriately. We believe that the suspended quashing order and the prospective order are useful additions, but they can only be beneficial to the jurisprudence if the court considers their use.
The presumption is therefore phrased in a way which encourages the court to consider their use, but we are not trying to fetter judicial discretion or to steer—I think that was the word used by the noble Lord, Lord Anderson of Ipswich—the courts to a particular decision. As now, it will remain very much up to the court to decide what remedy is appropriate in the individual circumstances of the particular case.
Lord Beith (LD)
On the basis of what the Minister has just argued, do I understand the Government’s position to be that unless this presumption is included, insufficient use will be made of these provisions and case law will not develop appropriately? Is that the Government’s position?
Lord Wolfson of Tredegar (Con)
The Government’s position is that the presumption will enable the case law to develop more quickly, perhaps, than it might otherwise do, because in each case the court will consider whether these remedies are appropriate. But there will be no case in which the remedy is provided where the court sees a good reason not to do so. In other words, we will not be in the position of Ahmed; that was the opposite. That was where at least some members of the court—in fact, the majority—wanted to do something and could not. We are not—I underline “not”—putting the court in a position where it will say, “We have to do this. We really don’t want to, but we have to”. You simply do not get there under subsections (9) and (10).
Lord Falconer of Thoroton (Lab)
Surely the courts will consider it when it is raised by the Government, and the question of the amount of time and how often the courts consider it will be dependent on the number of times it is raised as a proposition. I do not see why we need the presumption to get the courts to consider this.
Lord Wolfson of Tredegar (Con)
There are two parts of the answer to that. First, there are, as I said earlier, many judicial reviews in which it is not “the Government” in the way that the phrase “the Government” is used.
I am grateful to the noble and learned Lord, because the second point ties into a point I was going to come to. It is, I am afraid, a longer response than the speech which provoked it from the noble and learned Lord, Lord Judge, who said that this is a presumption in favour of the wrongdoer. I will try to answer the two points together. With great respect, I disagree for this reason: the presumption is not a presumption in favour of the wrongdoer. It is a presumption in favour of finding the appropriate remedy for the facts of the case. As we have heard, rightly, from a number of noble Lords, the claimant might not be the person who is actually most affected by the decision in question. There could be a whole class of people who are very severely affected by the decision in question who are not before the court. The claimant, who is before the court, is affected because they are sufficiently affected to have standing, but they may not be affected to the same degree. Therefore, it may not matter too much to the claimant as to whether the remedy is given. It may, on the facts of the case, not even matter too much to the defendant whether this remedy is given, but it may well affect third parties.
Another benefit of the presumption is that the court, so to speak, has to go through that thought process of whether this would be the appropriate remedy, thinking about people—we talked about the factors in subsection (8) earlier—who are not before the court, because on the facts of a particular case, the claimant may not actually be too bothered about whether these remedies are used. The defendant may not be too bothered whether the remedies are used, but it could well affect the position of third parties. Therefore, with respect, I dispute the proposition that this is a presumption in favour of the wrongdoer. It is in favour of the appropriate remedy.
Lord Judge (CB)
Why is the interests of justice test not quite sufficient for your purposes?
Lord Wolfson of Tredegar (Con)
I think I replied to that point in the previous group. The interests of justice test is subsumed here because you can use these remedies only where there is no good reason not to do so; in other words, if there is a good reason not to do so, you cannot use the remedies. Therefore, necessarily, every time you are considering whether to use the remedies, it is in the interests of justice to do so.
If I may repackage the noble and learned Lord’s question, it really is: why not just say, “in the interests of justice”, or have a freestanding discretion? That point was put by a number of members of the Committee and gets me back to my point that we want jurisprudence to develop, and we want the court positively to consider these remedies. This is not least because there could be cases—the music copyright case is one—where these remedies would be very helpful to third parties, while the instant parties to the case may not be too bothered whether they are used or not.
Baroness Chakrabarti (Lab)
Does the Minister understand that his comments about third parties are now making me feel more nervous again about proposed new section 29A(1)(b)? We are effectively opening the door to judicial legislation in relation to immunising the Secretary of State from further challenges by a whole class of people who are not currently in the court; we are therefore doing the legislative thing in removing or limiting any retrospective effect of the quashing, as opposed to just delaying the quashing for the future.
Lord Wolfson of Tredegar (Con)
With respect, no. The noble Baroness is looking at this in a very negative way. The whole point about the music copyright case was that the prospective-only remedy was there to protect people who have relied on the regulations. One must not look at these cases with the view that you have all these people out there with claims against the Government and the prospective-only remedy insulates the Government from all these other claims. There are lots of cases where a local authority, or the Government, or some other public body has made a decision and people have relied on it. Businesses have been set up, people have taken out bank loans and made investments. In those cases, I ask rhetorically, should all those third-party interests be disregarded merely because in the case of the claimant bringing the judicial review, his bank loan has not been drawn down yet, so he does not mind whether they are upheld, so to speak, prospectively or retrospectively?
As the noble and learned Lord, Lord Hope, said in the very first debate, there is a wide gamut of cases that come before the courts, and we have to give remedial flexibility; that is what all of this is seeking to do.
Lord Falconer of Thoroton (Lab)
That is an interesting answer. If there are two judicial reviews going on and one holds, for example, that the regulations are unlawful—not in accordance with a statutory power—but says prospective-only, it is presumably open to a second judicial review, which might be going on in parallel, to say, “It is unlawful, and I argue for it not to be prospective-only, for the following reasons.” Would it be open to two judicial review courts to come to different conclusions on the same unlawfulness?
Lord Wolfson of Tredegar (Con)
We all know that judicial reviews have to be brought within three months of the act. Therefore, I suggest to the noble and learned Lord that it is highly unlikely that one will have two separate courts adjudicating on the same decision. If there were separate judicial reviews, they would be consolidated.
Lord Wolfson of Tredegar (Con)
The position would still be that proper case management can deal with all of this. The point that the noble and learned Lord makes is no different from the proposition that could apply now. You could have two judicial reviews where one court decides to give a quashing order and the other does not. That point is already out there, so to speak. There is nothing new conceptually added by this Bill.
Lord Pannick (CB)
I am grateful to the Minister for giving way. He expresses the hope that these provisions will enable the judiciary to build up a body of precedent in this area. Can he direct the Committee to any other statutory context which sets out in the way we see here a list of factors that judges are obliged to take into account, and then directs them by way of a presumption as to how discretion should be exercised? I cannot think of any. While I am on my feet, I thank him for being here tonight to deal with these amendments and giving up what would otherwise, I am sure, be an important date in his diary.
Lord Wolfson of Tredegar (Con)
I know that my right honourable friend the Prime Minister is still recovering from my absence from the dinner, but I am sure he will provide the usual entertainment and speech that my colleagues would expect.
On the wording of the new clause, there are two separate points. First: do we have statutes with presumptions? Well, of course we do. Secondly, do we have statutes which set out a list of factors to which the court must have regard on either an exhaustive—rare, I think—or, much more commonly, non-exhaustive basis? Yes, of course we do. My noble friend Lord Faulks gave the example of the Limitation Act—in Section 33, I think, from memory. The noble Lord’s real question is, therefore, do we have an instance where those two are put together? There is a short answer and a longer one. The short answer is that I cannot think of one off the top of my head, but I will have a look. The longer answer, however, is, with great respect: so what? If a presumption is not objectionable in itself, and if a list of factors on a non-exhaustive basis is not objectionable in itself, what, I ask rhetorically, makes it objectionable when those two features are put together? There is nothing objectionable about it.
I suggest that the real point put to me is not that this is objectionable, wrong or sinister, but that it is unnecessary. The answer to that is that it is beneficial for two reasons. First, to repeat the point, the court’s considering these powers will encourage the growth of the jurisprudence. Secondly, as I said to the noble and learned Lord, Lord Judge, the fact that the court has to consider them means that they will be considered in all cases, because there may well be cases where it is not in the interests of the party to the case that they be used, but it could be in the interest of third parties.
That ties into the point I was coming to on Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. I heard what she said—that she would prefer the other amendment but tabled this one on a probing basis—but let me respond to it. In addition to removing the presumption, it would replace it with a precondition that, before exercising the new remedial powers, the court must be satisfied that the modified quashing order would offer an effective remedy to the claimant and any other person materially affected by the impugned act. This proposed precondition is superfluous, because the remedies available in the Bill are more effective and tailored, taking into account the interests of both claimant and third parties. The problem with the wording of her amendment is, as the noble Lord, Lord Anderson, pointed out, the copyright case. The wording used is not very good for third parties.
However, in that context, I should pick up a point made by the noble Baroness and by the noble Lords, Lord Marks and Lord Beith, concerning the phrase “adequate redress”, which was first made by the noble Lord, Lord Anderson of Ipswich, at Second Reading, if I remember correctly. We have heard the argument that we should replace that phrase with the phrase “effective remedy”, as also used in Amendment 14. I said in my closing speech at Second Reading, in response to the noble Lord, Lord Anderson, that I would reflect on this point with officials, and, of course, we have. I hope I can take a moment to explain the rationale behind the drafting.
Baroness Chakrabarti (Lab)
I am hugely and genuinely grateful to the Minister for that, because it cuts to the heart of my residual concern about proposed subsection 29A(1)(b). It is that the Government are thinking of circumstances—copyright and others have been cited—where granting the immediate quashing order, which may be what the applicant in the particular case is seeking, would cause all sorts of problems for other people not in the courtroom, certainly in the Government’s view. Of course, it is the job of the elected Government to think about all of those other classes. Therefore, in that case, the Government would seek to invite the court to make all sorts of detailed delineations to remove or limit any retrospective effect of the quashing, but that would be the Government inviting the judiciary into a quasi-legislative role that it is not best placed to discharge, given that it would be just the Government’s view of those wider interests, not challenged in Parliament, as the Government are.
So, although I am so grateful to the Minister for making that genuine point about the need for polycentric decision-making, there is a limit to what you can ask the court to do. Remember, this would not even be the substantive judicial review hearing; this would just be the argument about remedies.
Lord Wolfson of Tredegar (Con)
I would not say that it is “just” about remedies; as this debate shows, remedies are very important. But I do not think that Mr Justice Green, in the music copyright case, felt that he was legislating in any way. As we heard in the first debate, this issue goes back to Lord Reid and indeed further.
There are two separate issues here. First, should we have prospective-only quashing orders as a matter of principle? We dealt with that in the first group, and I set out the reasons why. Secondly, in this group, should there be any sort of presumption? That is the point that I am seeking to address. But I hope that what I have said on third parties assuages the noble Baroness on both the presumption and prospective quashing orders generally.
The noble and learned Lord, Lord Thomas of Cwmgiedd, asked me whether this will become a standard approach for future legislation. There, I really would be going well beyond my remit. However, going back to what I said earlier, there is nothing conceptually unusual here in either a presumption or a list of factors. There is certainly nothing sinister—a word that was used by someone in that context.
I hope that what I have said goes at least some way to clarifying the concerns that have been raised on the presumption. Of course, I have listened very carefully to what has been said, and I shall reflect on it further. For the moment, I invite the proposers of the amendments not to press them.
Lord Anderson of Ipswich (CB)
I thank all noble Lords who have contributed to this notable debate—notable not just for its quality but for the rare and even forceful unanimity that it evoked among nearly all lawyers who spoke. I exempt, of course, the Minister, who was paid, or possibly not paid, for taking the opposing view.
I thought that the noble and learned Lord, Lord Etherton, put it most pithily when he said that the presumption was unnecessary, wrong in principle and potentially dangerous in practice. He was swiftly outdone by the noble and learned Lord, Lord Judge, who, if I may say so, correctly described it as a presumption on favour of the wrongdoer—the person against whom a quashing order is to be made. Even the noble Lord, Lord Faulks, who attempted a characteristically fair-minded defence of the presumption, confessed that he was not persuaded that it was necessary.
Of its necessity, I was not persuaded by the Minister in his speech. He still seemed unsure whether it is a presumption at all—but if it is not a presumption, what on earth is it, save for a sort of fertiliser for, as he put it, encouraging the growth of jurisprudence, which I think we are all agreed it would be? I hope that the Minister is right that “adequate redress” is broader than “effective remedy”, but, sadly, neither his words, or still less mine, are any substitute for the authoritative judicial ruling that would no doubt take great time and effort to achieve. These subsections are not something that we should have in this Bill, and they would be a damaging precedent for other Bills.
Finally, we are in the extraordinarily privileged position in this Committee to hear from very senior judges whose lives have been devoted to the interpretation of such laws what the practical defects of proposed laws would be. I hope that we will not only hear them but act accordingly when, as we surely will, we come back to this on Report. In the meantime, I beg leave to withdraw the amendment.
“(1A) Notwithstanding subsection (1), subsections (2) and (3) do not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;(b) that party was not of full age or capacity;(c) the appeal before the First-tier Tribunal was not an in-country appeal;(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, a Cart judicial review is where the High Court can, in exceptional circumstances, review a decision of the Upper Tribunal to refuse permission to appeal a decision by the First-tier Tribunal. The purpose of Clause 2 is to oust, or abolish, this type of judicial review. Cart judicial reviews are mostly used in immigration and social security cases to identify serious errors in law; they have prevented the removal of people to hostile regimes, where they risk torture and murder, and have brought justice to benefits claimants who have been treated unlawfully. Cases where Cart judicial reviews have been used concern matters of life and death and are a safeguard, costing a relatively modest amount of money.
On Report in the House of Commons, the Lord Chancellor moved a new amendment to Clause 2 which would narrow the small number of exceptions to the abolition of Cart judicial reviews even further. In particular, the consequences of the amendment are that a legal error made by a tribunal would be regarded as a fundamental breach of natural justice only if that breach related to a procedural defect. The amendment is problematic, because it would exclude courts from considering issues such as actual or perceived bias in a tribunal, or a tribunal’s failure to assess obviously relevant considerations in its decision-making.
There are a range of arguments why Cart judicial reviews should remain, including arguments about the volume and cost of cases and whether it is a proportionate use of judicial resource. Indeed, there are arguments about the criminal courts’ backlog, and how it would be affected—I think the Government make this argument—if judicial resource was used in this way.
Another argument, which I am calling the “bites of the cherry” argument, and which was referred to by the noble Lord, Lord Faulks, at Second Reading, is where a claimant has already had two separate hearings but wishes—the argument says illegitimately—to have a third hearing. This is not an accurate or fair representation of how the process works. A claimant can only pursue such a judicial review when the First-tier Tribunal has made a serious error of law and when the Upper Tribunal has wrongly refused permission to appeal against that error of law; in other words, the Upper Tribunal has taken no steps to correct a serious error in law by the First-tier Tribunal. This is exactly why the Administrative Court must step in. A Cart judicial review represents a situation where a claimant has not had a proper first bite of the cherry—one might say that the first bite was sour—rather than that they are seeking a third bite. Therefore, the reasons given for abolishing Cart cases proceed on a false characterisation and should be reconsidered. It is for this reason that we are against Clause 2 and believe that it should be removed from the Bill.
Returning to my amendments, Amendments 16 and 21 seek to provide a further list of exceptions to the ousting of the High Court’s jurisdiction under Clause 2. These are examples of circumstances in which there must be particular concern about the capacity of the First-tier Tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal. Amendment 17 seeks to clarify that to find a breach of the principles of natural justice, the High Court need not focus only on procedural defects. Amendment 18 would change the test to judicially review a decision of the Upper Tribunal to refuse permission to appeal from a “fundamental” breach of the principles of natural justice to a “material” breach of those principles. Amendment 22 in my name would require the Lord Chancellor to carry out and publish a review of the operation and the consequences of the ouster of Cart judicial reviews.
There are a number of other amendments in this group which I support, but the process of this group is to look at the overall intensions of the Government and then to further look at the individual ameliorating effects, if I can put it like that, within the amendments which I have tabled in this debate. I beg to move Amendment 16.
Lord Faulks (Non-Afl)
My Lords, I do not want to repeat what I said at Second Reading. Suffice it to say that I referred to what Lord Carnwath said in a lecture, essentially that the decision in Cart was incorrect and needed to be reversed. That line of argument was supported by the recently departed—in the physical sense, I hasten to add—noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble and learned Lord, Lord Hope of Craighead.
The question is whether the decision was correctly reached. If one follows the story of Cart, which we did with some care, looking at the decision of the Court of Appeal, Lord Justice Laws was the first judge to break what had been a consensus that the decisions of the Upper Tribunal should not in any way be subject to challenges by way of judicial review.
Lord Ponsonby of Shulbrede (Lab)
Before the noble Lord sits down, just to put the record straight, it is right that David Lammy said that when he was in a previous position. However, what he says now is that he has changed his mind and that he thinks that the whole of Clause 2 should go.
Lord Falconer of Thoroton (Lab)
I disagree quite strongly with what the noble Lord, Lord Faulks, said about how suggesting that this part of the Bill be removed is irresponsible. As the impact assessment put forward by the Government indicates, if this part of the Bill goes forward, between 173 and 180 Upper Tribunal and High Court days would be saved, which they calculate at £400,000. We are talking about a saving of £400,000 if this goes through, according to figures advanced by the Government.
As the briefings we have received from a number of organisations indicate, the effect of Cart judicial reviews has been quite significant. Points of law have been established as being wrongly decided by the First-tier Tribunal and the Upper Tribunal. No criticism of those two tribunals is intended, but that is what happened. They have been of some considerable importance, particularly in relation to human trafficking, duress and asylum status.
In relation to the point about Lord Justice Laws, his judgment in Cart in the Court of Appeal utterly exploded the theory that, simply because it was a superior court of record, there could not be judicial review. It exploded that proposition—which had been the basis of saying that Cart was not the subject of judicial review—so totally that in the Supreme Court, the judges who gave reasoned judgments indicated that he had done such a great job in relation to that that nobody now sought to restore that argument.
I am against this provision in relation to Cart because it does two things which are bad. First, it removes the High Court from considering whether or not the Upper Tribunal has got it wrong. In England—I say nothing about Scotland—it is the High Court that is the absolute cadre that determines the development of the law and the quality of the law, and I am not in favour of it being removed from this for £400,000.
Secondly and separately, as Cart in the Supreme Court said, there are a range of options open to the Supreme Court as to what the test should be for allowing judicial reviews from the Upper Tribunal’s refusal of permission to appeal from the First-tier Tribunal. It considers the ranges, such as exceptional circumstances, or asks whether it should be on the basis of, “We will give judicial review when the Upper Tribunal should have given leave to review it”, or some combination of the two, or a breach of natural justice—something like that. It said that the Supreme Court had a quite broad discretion to determine what the filter should be.
In the report of the group that he chaired, the noble Lord, Lord Faulks, said that the way that judicial review should develop should be on the part of appropriate deference by Parliament to the courts, and by the courts to Parliament. What I took that to mean is that the courts should be very careful to make sure that, in every case they can, they give effect to what Parliament wants. I took the noble Lord’s reference to deference by Parliament to the courts to mean: let the courts develop the precise ambit of the process by which they will judge illegality or not.
I object to Clause 2, because what is happening here is that inappropriate deference is being shown to the courts. The courts have the power to decide what the filter should be. They made that clear in Cart. The Supreme Court can revisit Cart; it is seven years old and, anyway, it can revisit it if it is 10 minutes old. It, not the legislature, should decide what the filter is in relation to this.
The key thing about judicial review is that it is the main means—not the only means, but the main means—by which the courts uphold the rule of law. Our constitution is based on democracy and the rule of law. Although there are functions within government that determine, or try to protect the state from, breaches in the rule of law, the key vindicator of the rule of law is the courts. Why on earth, for £400,000, is the legislature galumphing in to this area when the courts themselves can give the precise limits of this? It is—perhaps the noble Lord will let me finish.
It is such a mistake to do this. It sets out an ouster clause; that may be used in future, but I am pretty confident that the courts will construe ouster clauses against the background, so the wording in one case may well not work in another case. What is wrong here is that the Executive should not be doing this, because the courts have the power to sort it out themselves, and they should. I apologise for not taking the intervention from the noble Lord straightaway.
Lord Faulks (Non-Afl)
The noble and learned Lord does not mischaracterise the conclusions we reached at all. Quite rightly, we emphasised the respect of the various parts of the constitution to each other and the importance of that. However, he omits to mention a fact we stressed: none of the judges who made a submission to us ever suggested that, when Parliament thought a decision was wrong, it was not appropriate to legislate to reverse the effect of that decision. To suggest that does not do violence to any of the principles that we identified—I think the noble and learned Lord and I would agree about those principles. As for the hourly rate of judges, with great respect, whether they are remarkably good value for what they do does not alter the fact that, if something is bad law, it needs reversing.
Lord Falconer of Thoroton (Lab)
There is a fundamental misunderstanding there. Of course, Parliament can reverse a judicial review on its substance. If the courts conclude that some social security regulations do not meet a particular provision, they can change those regulations and come to the same result they wanted to all along, which is fine. I am talking about the fundamental role of the court in relation to determining whether the Government are acting lawfully. In relation to that, namely the ambit in which the court will operate Anisminic onwards, as it were, do not interfere with it. Let the courts determine that. Ultimately, the limits of that have to be set by the courts and not Parliament.
Lord Pannick (CB)
The noble and learned Lord has raised a number of very valid points in opposition to Clause 2. I offer another, in response to the noble Lord, Lord Faulks, who emphasises that there must be finality in litigation. The problem with that argument is that Clause 2 itself recognises the need for exceptions. New Section 11A(4) specifies exceptions, in particular for a
“fundamental breach of the principles of natural justice.”
In my Amendment 19, I suggest we need a further exception for where the Upper Tribunal has made a fundamental error of law. The noble and learned Lord, Lord Falconer, gave a number of examples where there may be important areas of law that raise fundamental issues that go to the safety of the individual who is going to be removed to a place where they may face persecution or torture. I for my part do not understand why a fundamentally unfair procedure is a greater mischief in this context than a fundamental error of law by the tribunal system. In each case, the Upper Tribunal and the Court of Appeal will have declined to intervene. If the judicial review route is nevertheless to remain open, as Clause 2 recognises, for fundamental procedural defects, surely it should remain open for fundamental substantive defects.
I accept of course, as again the noble Lord, Lord Faulks, emphasised, that there will be claimants with no legitimate point who seek to argue that they fall within the exception, but that is equally true of an exception for fundamental procedural defects. In any event, the answer to that concern is to ensure that any application for judicial review, whether of substance or procedure, is looked at and addressed by the judge on the papers and within a very brief time period.
Lord Etherton (CB)
My Lords, may I follow my noble friend Lord Pannick, who has referred to my Amendment 23, which would replace Clause 2 with what I have called a middle course? It is intended to be a middle course between, on the one hand, the provisions of Clause 2 which would abolish—subject to limited exceptions—the Cart supervisory jurisdiction of the High Court in England and Wales and the Court of Session in Scotland and, on the other hand, leaving the full Cart supervisory jurisdiction as it currently exists.
Amendment 23 is tabled on the basis that to abolish all Cart supervisory jurisdiction, subject only to the three limited categories of case specified in subsection (4), could give rise to injustice. On the other hand, it recognises, from my own experience as Master of the Rolls for over four years, that applications for permission to appeal to the Court of Appeal, from the High Court’s exercise of its Cart supervisory jurisdiction, are almost invariably utterly hopeless but nevertheless involve the Court of Appeal judge in question in a considerable amount of work ploughing through the decision of the First-tier Tribunal, the decision of the Upper Tribunal and the decision of the Administrative Court.
The middle course that I am proposing is to retain a supervisory jurisdiction at the level of the High Court, but to prohibit, first, an application to renew or appeal a refusal of permission to bring judicial review; secondly, to prohibit any appeal from a dismissal of the substantive judicial review application; and, thirdly, to prohibit any challenge to, or renewal of or appeal from, any other decision of the High Court such as, for example, in respect of interim relief.
In his reply at the Second Reading debate, the Minister said that he would consider this middle course but that the Ministry of Justice had calculated that abolishing the Cart supervisory jurisdiction would save 180 days of judicial resource in the Administrative Court. I have subsequently had a useful exchange of correspondence about that assertion, and I am extremely grateful to the Minister for answering a large number of questions that I have raised, probing that claim of 180-day savings. I hope the Minister will not take it amiss, but I regard it as perfectly clear that the Minister’s estimate of the saving of judicial time is greatly overstated.
The Ministry of Justice relies on a number of different sources, including a 2015 time and motion study from which it has extrapolated various assumptions. I am very doubtful about the accuracy of the statistics I have been provided with and the extrapolation provided by the ministry’s correspondence but, for what it is worth, the Minister’s response includes a breakdown of Cart cases from 2012 to 2020. It shows that over that nine-year period, 99% of Cart applications for permission to bring judicial review were dealt with on the papers and not at an oral hearing. The Minister’s letter allowed just over 1.3 hours for a judge to consider a paper application. In short, the figures supplied show that on average over the nine-year period, approximately 130 judicial days each year were spent on Cart applications in the Administrative Court.
At full complement and ignoring a substantial number of deputy judges, there are 71 full-time judges of the Queen’s Bench Division available to sit in the Administrative Court, which would mean just under two Cart applications each year per judge. Of course, there are plenty of people here, including the noble and learned Lord, Lord Thomas of Cwmgiedd, who has been Chief Justice, who will say that that is not how the world works because only a certain number of judges sit in the Administrative Court at any one time. On the other hand, it is not the way the world works having a single judge deal with all the Cart cases in a year. The truth is that they are spread among all the judges.
Furthermore, proposed new Section 11A(4) in Clause 2 provides three exemptions for the abolition of the Cart supervisory jurisdiction. I have been told by the Minister that there are no statistics to show how many of the Cart cases in the period 2012-20 fell within one or more of those three categories. In the absence of that information, it is not only utterly futile to suggest that Clause 2 would result in the saving of a specific amount of judicial time; it is clear that any saving would be less, perhaps far less, than even 130 days.
The middle course in the amendment I have tabled would help to avoid injustice while providing a useful curtailment of the Cart supervisory jurisdiction. I suggest that this is a sensible and just solution.
Lord Thomas of Cwmgiedd (CB)
May I add a couple of observations? It seems to me that experience has shown that it was difficult for the Supreme Court to find the right balance. On the other hand, this Bill goes too far and, if I may respectfully agree with the noble Lord, Lord Pannick, it is very easy for a judge to think in the particular circumstances of a case that a point of law is just nonsense. Therefore, having a check where points of law can be brought forward is essential.
I tend to feel that the suggestion made and the amendment put forward by the noble and learned Lord, Lord Etherton, is probably the most pragmatic solution and I would support that. But one thing we cannot do is to leave out of the equation the ability to have a review where there has been a fundamental error of law. Experience has taught me that many people, when looking at the facts of a particular case, think that they are so against it that it is hopeless, but actually there is often something there, and we must preserve that. However, I commend, if I may, the solution of the noble and learned Lord, Lord Etherton.
Lord Trevethin and Oaksey (CB)
May I just ask a question about the middle way proposed by the noble and learned Lord, Lord Etherton? Would the bar he is proposing—which would, as it were, place a lid over the High Court so that matters could not travel from the High Court to the Court of Appeal or the Supreme Court—operate even in a case where the High Court judge who had heard the point that arose in relation to the other tribunal’s refusal to grant permission to appeal considered that it raised an issue of general importance which ought, in fact, to travel upwards for consideration by the Court of Appeal or the Supreme Court? Should there perhaps not be a proviso in the middle-way amendment that would permit the High Court judge, if he or she thought it appropriate, to grant permission so that the matter could go upwards?
Lord Pannick (CB)
That is a very important point. If the noble and learned Lord, Lord Etherton, brings back his amendment on Report, as I hope he will, he may wish to add in a provision along the lines of what we see in relation to criminal matters and under the Administration of Justice Act: that if the judge or the Supreme Court certified that it was a matter of public importance, either the judge or the Supreme Court could give permission for the matter to go straight to the Supreme Court. The judge at first instance may throw out the point, but may nevertheless recognise that it is a point of some significance that perhaps the Supreme Court may wish to consider.
Lord Hacking (Lab)
My Lords, I apologise for the croak in my voice. As two noble Lords have already recognised, the ultimate issue in this batch of amendments is whether Clause 2 remains part of the Bill. Therefore, we should look with some precision at the Bill. Proposed new Section 11A(2) states in respect of the decision of the Upper Tribunal:
“The decision is final, and not liable to be questioned or set aside in any other court.”
That means that any appeal from the Upper Tribunal will now be forbidden. There is a proviso a little further down, in new subsection (4), which can be summarised as “if the Upper Tribunal has behaved improperly or ultra vires”, and there lies an exception, but it is a very strong provision in new subsection (2), as inserted by Clause 2.
At Second Reading, which was the first time I addressed this House after 22 years, I made two points on that issue. I said that, as a matter of principle, it was wrong to shut this out of the judicial process, because no appeals would actually go into the judicial process of our law courts. I argued that it was as a matter of principle wrong, because many of the applicants concerned—and this provision will absorb all the asylum applicants—are among the most vulnerable people who will ever want access to our courts. I argued, secondly, that the processes already in existence were good enough to pick out the unmeritorious applications, which far exceed in number the meritorious applications and which will find no further favour through the judicial process.
Therefore, we should look quite precisely at the decision-making as it now stands. We move from the Home Office decision—asylum or not asylum—to the First-tier Tribunal, then to the Upper Tribunal and then, in limited circumstances, to the single judge, who will make a decision on paper. We then move to an oral hearing, which I think will be in front of the Court of Appeal, and a journey, or a door, into our judicial process. What are the limitations in the present system, which I say are sufficient to sort out the difference between the meritorious and the unmeritorious application?
On the first issue, on the rules relating to the first tier, all issues of fact and law are to be considered by the First-tier Tribunal—but once it has made its decision, there are great limitations on the rights of appeal, and the right to appeal from the First-tier Tribunal is only on errors of law and on the permission of the Upper Tribunal. Of course, that throws out something that is very important, which is any further consideration of the merits of the application. When the matter goes to the Upper Tribunal, there are much more severe restrictions; it is only a paper application and only on the grounds of important principles of law and practice, or for some other compelling reasons. That then brings us, if that can be satisfied, and the law courts accept it, to a single judge—and then it is very limited, with only a paper application and only on the grounds of important principles of law and practice, or for some other compelling reason.
Baroness Jones of Moulsecoomb (GP)
My Lords, I do not have enough experience to talk about this first hand, but I get a lot of very useful briefings from campaign groups. On Clause 2, Liberty summed up the arguments extremely compellingly. I shall not read out the whole paragraph, but I shall read out three sentences.
“Cart judicial reviews are only given permission to proceed where there is ‘an arguable case, which has a reasonable prospect of success”
—that seems perfectly reasonable. Cart reviews
“allow egregious injustices and errors to be caught not just to the benefit of the individual claimant, but the benefit of the system as a whole.”
As the noble and learned Lord, Lord Phillips, put it in the Cart judgment itself, they
“guard against the risk that errors of law of real significance slip through the system”.
I cannot really see any proper way forward than removing Clause 2 in its entirety.
Lord Marks of Henley-on-Thames (LD)
My Lords, if I may, I shall speak first to my Amendment 20, to create an exception to the ending of Cart JRs in cases where the refusal of permission to appeal the decision of the Upper Tribunal
“is likely to lead to the deportation of the applicant to a country where the applicant is likely to be tortured or subjected to inhuman or degrading treatment”.
In such cases, the Cart JR of that refusal is the last hope that an applicant has. If the refusal of permission is wrong in law, I argue that in such a case the decision to refuse permission should not be exempt from review.
These cases are not academic; the injustices are very serious. In the case of G and H against the Upper Tribunal and the Home Secretary in 2016, reported in EWHC 239, Mr Justice Walker considered the case of a Nigerian woman, G, who was a victim of FGM and sex trafficking, who also had a child, H.
The Home Secretary’s decision to deport G and H was appealed to the First-tier Tribunal. It was common ground that, before coming to the UK, G had been the victim of FGM and sex trafficking. The Upper Tribunal dismissed an application for permission to appeal the FTT’s decision. That decision was challenged on an application for JR and the High Court gave permission for a review and found that the decision refusing permission should be quashed, both on grounds of a failure of procedural fairness in the Upper Tribunal decision and that the Upper Tribunal’s refusal of permission to appeal
“involved a material misunderstanding or misapplication of the law.”
In a Scottish case last year of CM v Secretary of State for the Home Department—2021 Court of Session Inner House Cases 15—the Inner House of the Court of Session, on a judicial review application, overturned a decision of the Upper Tribunal refusing permission to appeal an order of the FTT. In that case, the petitioner was a Venezuelan who came to the UK with his wife and young son in 2017, seeking asylum after his friend had been shot in the face by members of the Venezuelan armed forces while they were protesting together. The petitioner had been a witness to the shooting and the security services who had shot his friend knew he had been a witness and had threatened him with dire consequences if he reported their involvement in the shooting. In overturning the refusal, the Court of Session held that the Upper Tribunal had misapplied the law and misunderstood the effect of the evidence.
We know that the vast majority of Cart JRs—92.4% from 2013 to 2020—involve immigration and asylum cases. We also know that a very high proportion of those involve deportation orders and that those orders are often to countries where the country guidance issued by the UK Visas and Immigration section of the Home Office indicates that there is a very high risk of maltreatment on return, not necessarily by the authorities—although often they may be the source of the danger or condone it—but often by traffickers or criminal elements within the countries concerned.
The Government’s arguments—and those of the noble Lord, Lord Faulks, and his committee—in favour of Clause 2 rest largely, first, on the high resources in money and judicial time said to be consumed by Cart JRs and, secondly, on their apparent low success rate. The noble and learned Lords, Lord Falconer and Lord Etherton, have answered conclusively both the points relating to money and judicial time.
As to success rates, it is true that there have only been nine High Court decisions in favour of the applicant on Cart JRs. However, there have been only 13 decisions made at hearings over the relevant period, so 70% of those that have gone to a hearing have succeeded. That puts into perspective the level of success or failure of these JRs. The high failure rate overall is, of course, a reflection of the very high bar that applicants must surmount as a result of the decision in Cart before they get permission to apply for JR.
That explains why, of the balance of nearly 6,000 applications that reach the permission stage, only 6% of 366 were granted permission. The other 94% were refused permission, almost all on the papers. Of the 366 granted permission, 336—approximately 92%—were closed without a hearing, and many of those will have been settled. We do not have the exact statistics on settlement, but I invite the Minister to write to me before Report setting out how many of the applications where permission has been granted have been settled, how many have involved deportation orders, and in how many cases such deportation orders have not been implemented as a result of a challenge being lodged.
I have also added my name to Amendment 19 in the name of the noble Lord, Lord Pannick, which would permit Cart JRs where the Upper Tribunal acts in reliance on a fundamental error of law. I agree with him that there is no justification for a distinction between a fundamental procedural defect and a fundamental error of law. The noble and learned Lord, Lord Thomas, put the same point forcefully when he explained how judges often ignore a fundamental point of law or at least lead themselves to the belief that it does not exist when the facts are strongly one way.
No doubt the Minister will argue that the use of “fundamental” is elastic and that there will be cases where it is open to argument whether there is an error of law which is fundamental. That may be, but judges are very used to considering and determining questions of degree, and it is not hard to leave this one to them. I draw support for that point from the preceding exception in the subsection where
“the Upper Tribunal is acting or has acted … in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.”
If the judges are to determine what constitutes a fundamental breach of natural justice, they can properly be asked to consider what constitutes a fundamental error of law.
Before I turn to the question of whether Clause 2 should stand part of the Bill more generally, I mention that I support the amendments spoken to by the noble Lord, Lord Ponsonby, for the reasons he gave.
I oppose the clause altogether for two fundamental reasons. First, I am simply not persuaded that the reasons for removing the Cart supervisory jurisdiction, limited as it has been by the decision in Cart itself—as pointed out by the noble Baroness, Lady Jones—justify this step. The Government’s argument starts by accepting that the ending of the jurisdiction will cause injustice in some cases. That is not acceptable. I repeat that these are serious cases. What is more, they involve an important principle that decisions should be made lawfully. The limitations on the Cart jurisdiction fully take account of the fact that the Upper Tribunal is an independent specialist tribunal, often presided over by a High Court judge, and that its jurisdiction should not be lightly usurped by interference from the High Court. But usurpation should not be confused with supervision, and I believe the decision in Cart got the balance right. Even if the Government’s presentation of the figures on cost and success rates are exaggerated, they are presented in a one-sided way that does not give sufficient weight to the importance of the issues of principle at stake.
Secondly, as I indicated at Second Reading, I fear that the Government are using Clause 2 as a stalking horse for other ouster provisions in future; this point was taken up by the Minister when I made it. On any view, this is an ouster clause. I see that the Government are trying out new categorical and, they assume, bomb-proof—or at least judge-proof—drafting for this clause in subsections (2) and (3). I note that the Government’s press release indicated that they see these subsections as a template for ouster clauses in the future.
With a few limited exceptions, such as proceedings in Parliament, we on these Benches are against ouster clauses, because they hand power to the Executive to act contrary to law and outside the limits of what the law permits the Executive to do. In that way, they are inimical to the rule of law. In this Bill, I see the Government as having picked a soft target, because this concerns, they say, the ending of challenges to decisions of senior tribunals refusing permission to appeal. However, the drafting of subsections (2) and (3) could be used to frame other exemptions from challenge to Executive action, more unprincipled and more dangerous, in the future. This Bill would then be available to be relied upon as a precedent in the future for such ouster clauses. We should not underestimate the power of precedent. It is a useful tool for lawyers and drafters alike, but in the wrong hands and in the wrong place, precedent can be dangerous for principled lawmaking.
That is why I am attracted to Amendment 23 in the name of the noble and learned Lord, Lord Etherton, which proposes a compromise which does not risk future use as a template. The noble and learned Lord’s proposal that there should be no appeal from a decision of a supervisory court on a Cart JR, but that supervisory jurisdiction should be retained, has much to commend it, but I agree with the proviso proposed by the noble Lord, Lord Trevethin and Oaksey, and supported by the noble Lord, Lord Pannick. That formula would be far less amenable to misuse in later legislation to exempt government action or decision-making from judicial supervision. That protection is not afforded by the present Clause 2.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to comment on Amendment 23 in the name of the noble and learned Lord, Lord Etherton. The amendment retains the Cart supervisory jurisdiction but bars
“any appeal from the court exercising the supervisory jurisdiction or any other challenge to decisions of that court whether by way of renewal or otherwise”,
and the decision of the High Court will be final. As the noble and learned Lord put it, this is a middle way. In a way, it is a shame that it was not degrouped from this group of amendments because, essentially, we have been having two debates in parallel. Also, it might have been more appropriate as a Report stage amendment.
By way of introduction to my comments on the amendment itself, one of the experiences of being a magistrate is that a lot of legal advisors leave magistrates’ courts to go and work in the administrative courts; it is a career progression for a number of them. Some, who I would count as friends, have said to me how utterly hopeless are many of the cases they have to deal with and prepare for the judges; so, interestingly, a number come back to the magistrates’ courts because they prefer the work there. Anyway, that is an aside.
The noble and learned Lord, Lord Etherton, questioned the figures presented by the Minister. I would be interested to hear the Minister’s response to that. A number of noble and learned Lords proposed further amendments. The noble Lords, Lord Trevethin and Oaksey and Lord Pannick, also proposed further amendments, which may come back on Report; we wait to hear. I noted that the noble Lord, Lord Marks, also supports the approach taken by the noble and learned Lord, Lord Etherton. I think that an encouraging statement has been made by all these noble Lords.
As I said earlier, we oppose Clause 2 standing part. I am grateful for the support of the noble Baroness, Lady Jones, and the noble Lord, Lord Evans, on that, but I intend to withdraw my amendment after the Minister has spoken.
Lord Wolfson of Tredegar (Con)
My Lords, I will begin by addressing the clause as a whole before dealing with specific amendments, as a number of Members of the Committee have indicated that they believe the clause should be wholly removed from the Bill.
As the Committee is aware, Clause 2 overturns the Cart and Eba judgments, removing the route of challenge known in short hand as a Cart judicial review. Let us be clear exactly what that is: it is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. The claimant has already had a case before the First-tier Tribunal, which the claimant has lost, and the claimant has then been refused permission to appeal by both the First-tier and Upper Tribunal. A Cart judicial review allows an applicant to challenge in the High Court the Upper Tribunal’s refusal of permission to appeal—and that is not the end of the matter. If permission to apply for judicial review of the Upper Tribunal’s decision is refused by the High Court, that itself opens a route to the Court of Appeal, as we heard from the noble and learned Lord, Lord Etherton.
It should not surprise anyone that the Upper Tribunal, which is a senior and specialist tribunal, in some cases presided over by a High Court judge, appears to get over 96% of its determinations on permission to appeal right. In this context, “right” means that, sometimes, another High Court judge sitting on an application for a judicial review did not give permission. That should not come as a surprise because the Upper Tribunal is a senior court with a specialist jurisdiction, with senior judges sitting on it, so it is well suited to determining those questions of law.
I have heard it argued that we are removing a lifeline for claimants, but that argument can be extended to any system that has a limit—and there must be a limit. The question for Government and Parliament is where to draw the line. It is commonplace in our judicial system, so far as applications for permission to appeal are concerned, for that application to be considered by the original judge and the putative appellate judge, but no more. That is what the tribunal system does already.
Some members of the Committee may remember the decision in Board of Inland Revenue v Haddock, a decision of the Court of Appeal, comprising the Master of the Rolls, sitting with Lord Justice Ratchet and Mr Justice Apple, but reported only by one AP Herbert in his collection Uncommon Law. Subtitled
“Why is the House of Lords?”—
referring, I hasten to add, to this House in its former judicial capacity—the report posed the question why there should be three tiers of appeal: judge, Court of Appeal and then what he referred to, somewhat impertinently, as the
“wild wager on the final race”,
as he described the former Judicial Committee of this House. This metaphor meant that the Court of Appeal was relegated to
“a minor handicap taking place at 3.30”.
However, we have moved on since then. There is often now one tier of substantive appeal. If you want to appeal from a master to a judge, and then from the judge to the Court of Appeal, there are very special rules for second substantive appeals, and even showing that the judge was probably wrong is not enough to get you a second appeal. This is not even a substantive appeal; it is a question of permission to appeal where both the First-tier Tribunal and the Upper Tribunal have refused permission.
As I have said, the Upper Tribunal does not err often, with only 3.4% of claimants who were refused permission to appeal being granted an appeal and then having that appeal found in their favour. That can usefully be compared to a general 30% to 50% success rate for judicial review cases. Due to this, and the sheer number of Cart JRs per year—around 750—the IRAL recommendation was for Parliament to legislate to remove the Cart judicial review process.
I obviously listened very carefully to what the noble and learned Lord, Lord Etherton, said about the time and motion study and the assumptions set out therein. I know that he and my officials have had a number of useful exchanges on this. We have striven to count as accurately as possible the days taken at each point in the process, and we set that out in our impact assessment. I think that the noble and learned Lord omitted the time taken by the Upper Tribunal for reconsideration, which is not insignificant. Whatever the number of cases that reach the Court of Appeal, it must be more than zero. Therefore, I argue that there is a risk that we are actually underestimating the judicial time spent on Cart reviews. But, for present purposes, I can say that I am very happy to continue discussion on these matters ahead of Report. I will also write to the noble Lord, Lord Marks, about the data, if there is any—I do not know whether there is—on the settlements and the other points that he mentioned.
The second contention put against me is that the means by which we propose to implement the recommendation is a dangerous one. There are two points here. First, are ouster clauses appropriate in principle? I know that I will not persuade the noble Lord, Lord Marks, on this but, to put it briefly, parliamentary sovereignty means that an ouster clause can be appropriate in principle, I suggest. Legislation can change any aspect of the law and can also include an ouster clause. Although I respect and understand the argument that they are wrong as a matter of principle, I and the Government do not agree with this argument, and we consider that they are appropriate in particular circumstances.
The question now is: in this case, is the ouster clause the proper measure? We say it is: this is the best way to make Parliament’s intention clear vis-à-vis the relative and respective competences of the Upper Tribunal and the High Court. I absolutely accept that the clause’s drafting has been influenced by the arms race, one might say, between Parliament and the courts on ouster clauses in a series of cases. Parliament says X; the court says, “Did you really mean X? Maybe you meant Y.” Parliament says, “No. We are now saying Y.” “Well, what about Z?” You can see that development of the cases from Anisminic through Privacy International and thereafter. That is why the clause must in the form it is: otherwise, the point from Privacy International will be put: “Why does it say ‘purported’?” I think that was the Privacy International point. That is why the clause is drafted in the way it is.
Amendment 23 in the name of the noble and learned Lord, Lord Etherton, creates a procedural bar, providing that the decision of the High Court or any other supervisory court in reviewing an Upper Tribunal permission to appeal decision is final, preventing any escalation of that point to the Court of Appeal. Although I accept that that approach would create some efficiencies compared with the status quo, they would be significantly fewer than the approach we are taking. It also does not address the conceptual issue, with the High Court overseeing permission to appeal decisions of the Upper Tribunal, which is a senior court of record with specialist subject knowledge.
I am also concerned that some of the nuance in the original ouster clause, which still allows review in certain circumstances, has been lost in that revised version. The procedural bar proposed by the noble and learned Lord would seem to be absolute, not only on the refusal of permission point but, as was identified in the debate, in the substantive disposal were permission granted. As the debate went on, it seemed to me that the lid would not be as tight-fitting as he intended. Indeed, it sounded to me that as more additions and exceptions were built into the amendment, we would be back at either square one or, perhaps at best, at square two. Therefore, although I appreciate that the noble and learned Lord seeks a compromise solution, his amendment, especially with the additions accreted thereto, would not meet the Government’s policy intent.
Amendments 16 and 20 in the name of the noble Lord, Lord Ponsonby, and Amendment 21 from the noble Lord, Lord Marks, add a variety of exemptions to the ouster clause in particular cases but, in short, the Upper Tribunal is well placed to know the circumstances. It deals with matters of immigration law on a regular basis, and I therefore see no justification for treating those circumstances as exceptions to the ouster clause.
Amendments 17 and 18 apply to the natural justice exemption. This provision was amended by the Government on Report in the other place to read in the words now in the Bill. That was not, as my colleague James Cartlidge explained, a change of policy. Our intention is for substantial procedural impropriety to remain reviewable but for errors of fact or law within the Upper Tribunal’s remit to be ousted. The new wording is intended to be clearer. The amendments would undo the clarification on that point. As to whether fundamental breach is particularly different from material breach, that is perhaps something of a moot point. The intention is to set a high bar which will not be susceptible to erosion over time or cause an unnecessary number of applications, which would undermine the entire purpose of the ouster.
In that context, Amendment 19 in the name of the noble Lord, Lord Pannick, which would allow the High Court or the other supervisory jurisdictions to carry out a JR of an Upper Tribunal permission to appeal decision where there is a “fundamental error of law”, risks taking us back, I am afraid, almost to where we started. That amendment attempts the same thing the Supreme Court attempted in Cart itself—to create a route for judicial review on errors of law but with a sufficiently high bar not to create a flood of cases. That attempt obviously failed, and I fear the noble Lord’s amendment will take us back and, essentially, repeat the same mistake.
Lord Ponsonby of Shulbrede (Lab)
My Lords, it is clear we will return to a number of issues on Report. But for this evening, I beg leave to withdraw Amendment 16.