Criminal Justice and Courts Bill

Debate between Lord Carlile of Berriew and Lord Irvine of Lairg

Monday 27th October 2014 Lords Chamber

[Lord Carlile of Berriew]

My thanks to the noble Lord, Lord Thomas. However, I would be the last person to deny those who are opposed to those sometimes controversial schemes the opportunity to question them, if appropriate, by way of judicial review. Taking the contrary view is statism of the most extraordinary kind.

Thirdly, my noble friend’s speech was unjust because it seemed to remove the notion that there should be issues of principle about which people can take dramatic action. He has done it himself twice by changing parties as he moved from old Labour towards the party which he now represents with distinction in your Lordships’ House. However, that is the sort of exercise of principle, on more than one occasion, which the noble Lord, Lord Pannick, was talking about in moving the amendment. These are not pragmatic actions over small sums of damages; they are actions over great issues of principle. Even if some claimants would not actually win their personal actions for judicial review, we know, from the cases which we have all read and in which some in your Lordships’ House have appeared, that enormously important issues of principle for the future arise from them.

I will stray into future amendments, as others have done. Some of those points of principle have been made extremely successfully by interveners—NGOs that have chosen to put in submissions. Some have done so so effectively that their written submissions have changed the course of a case. Surely we should not inhibit justice by these rather mean provisions, which, in my view, my party—the Liberal Democrats—should never have given a single piece of powder or a single piece of shot to support.

[Lord Irvine of Lairg (Lab)]

My Lords, I will make a few remarks in support of the noble Lord, Lord Pannick, my noble friend Lord Beecham and the noble and learned Lord, Lord Woolf. In their consultation paper, which preceded the proposed changes, the Government acknowledged:

“Judicial review is a critical check on the power of the State, providing an effective mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are lawful. The Government will ensure that judicial review continues to retain its crucial role.”

So far, so good. Unhappily, however, to my mind the Bill fails to deliver on that pledge. I shall confine my remarks to Clause 70 but, as other noble Lords have demonstrated, it is only one example of many.

The judiciary is a vital component in our separation of the powers. Judicial review is indispensible in a democracy proud to be governed by the rule of law. It ensures that public bodies act according to law. They cannot be above the law. Ministers, who are politicians, often will be frustrated if their decisions are challenged or quashed, but that is an intrinsic aspect of government subject to the rule of law, as is the need for Ministers to be aware of their duty to comply with the law. A Government who are confident that their decisions cannot be readily challenged risk becoming a Government who no longer have to respect the rule of law. That is a risk that no Secretary of State for Justice, who also bears the title of Lord Chancellor and is under a duty to uphold the rule of law, should be prepared to countenance.

Clause 70 would enable the Government to escape the consequences of unlawful action if they could persuade the courts that it was “highly likely” that they would have taken the same action had they acted lawfully. The current legal position is that where a public body has acted unlawfully the court may in the exercise of its discretion refuse to grant relief if it is satisfied that the decision would inevitably have been the same had the public body acted lawfully. That discretion is very rarely exercised, for good reason.

Procedural failures are more than “mere technicalities”. It is important that decisions are made properly by those entrusted with them by Parliament or Ministers. Procedural protections are built into Acts of Parliament or statutory instruments because of the importance of participation in decision-making by those affected by decisions or by the public at large. If a decision is unlawful because a defendant has acted unfairly, failed to observe a consultation obligation imposed by Parliament or failed to follow a procedure prescribed by Parliament, the rule of law requires that a claimant should have a remedy. To hold otherwise runs the risk of unlawful administrative action going unremedied. To my mind, the current law gets it right. The only exception should be those exceptional cases where a defendant can persuade the court that the same decision would have been inevitable.

Clause 70 is likely to encourage decision-makers to ignore participation rights. Yet the failure to comply with procedural obligations results in worse decisions as the decision-maker will not have taken into account the full range of relevant material before making the decision. It also undermines public confidence in the decision-making process. Those who have had the right to be heard before a decision is made will feel a justified sense of grievance about the fairness and quality of these decisions.

Moreover, and perhaps more importantly, lowering the threshold to “highly likely” will require the court to second-guess government decisions. The court will be required to substitute for the decision that has actually been made the decision it thinks the Secretary of State would make if the evidence that the court has looked at had been looked at by him. That is entirely inappropriate because the role of the judiciary in judicial review is to examine the lawfulness of public decision-making, not to substitute its own decision for that of the original decision-maker.

Finally, law reports are littered with cut-and-dried cases that turned out to be nothing of the sort. The best known expression of this came from that distinguished judge, Mr Justice Megarry, in John v Rees in 1970. He said that,

“experience shows that that which is confidently expected is by no means always that which happens … the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were”,

completely “answered”.

The effect of Clause 70 is best summed up in the words of the senior judiciary of England and Wales in response to the Government’s consultation:

“A lower threshold than inevitability for the application of the ‘no difference’ principle envisages judges refusing relief where there has been a proved error of law and the decision under challenge might have been different absent that error”.

I agree. The threshold defined in Clause 70 would immunise unlawful decisions from challenge before the courts, and I say that it should be rejected.