Access to Justice
Debate between Lord Faulks and Lord Phillips of Sudbury(9 years, 9 months ago)
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Lord Faulks
I will certainly not do that calculation at the Dispatch Box, but I think I understand what the noble Baroness is saying, which is that those systems where the judges are more involved—more inquisitorial as opposed to adversarial—may cost more. None the less, we generally believe that our legal aid costs—as is quite right, because we value access to justice—are more expensive than anything which is remotely comparable elsewhere.
Lord Phillips of Sudbury (LD)
My Lords, does my noble friend the Minister recognise that with the cutbacks in legal aid and fewer solicitors being willing to do it a greater burden rests on the citizens advice bureaux and law centres? Will he contemplate affording them more resources in order to meet the unmet need?
Lord Faulks
My noble friend is right. We have in fact given £107 million via the transition fund; that was last year. We remain concerned that justice should be provided by whatever means and we acknowledge the contribution of the Low commission in identifying different ways of providing help other than by the rather expensive and cumbersome method that is sometimes used.
Criminal Justice and Courts Bill
Debate between Lord Faulks and Lord Phillips of Sudbury(10 years ago)
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Lord Faulks
My Lords, we turn to Part 4 of the Bill, and specifically the clause concerning procedural defects highly likely to have made no substantial difference to the outcome of a judicial review. I pay tribute to this House, and the expertise shown in many corners, which has been brought to bear on these clauses. We have heard from my noble and learned friend Lord Mackay of Clashfern, who brought his unrivalled experience to the debate. He referred to comments of a former Secretary of State, the noble Lord, Lord Adonis, who wrote in his book, Education, Education, Education:
“However, if Parliament was navigated quickly and unobtrusively, the same was not true of the courts. As soon as academy projects became public, opponents seized on judicial reviews as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions”.
My noble friends Lord Horam and Lord Tebbit told us that judicial review does not exist in isolation and has an impact on projects in the real world that deliver employment to people and can significantly affect actual problems. There have, of course, been many contributions far less supportive of the Government’s proposals. For example, the House has heard from a number of distinguished judges with enormous experience of judicial review, including the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Woolf. We heard from the noble Baroness, Lady Campbell of Surbiton, of the important role that judicial review can have when used properly.
Throughout, the Government have listened carefully—more carefully than some of our more trenchant critics suggest. The amendments that we propose in later groups bear, I hope, testimony to that. In the case of financial information we have proposed an amendment, despite having won a substantial victory in the other place. However, I must say to the House that on the matter of this clause the Government have not been persuaded that any amendment is required.
When used appropriately judicial review is an essential part of the rule of law, by allowing for the lawfulness of public bodies’ actions to be tested in court. But it is an area that has been misused, with claims brought with no real prospect of success, and with a view to delaying and adding expense to perfectly lawful acts that are simply disliked. Such challenges place significant burdens on the public purse and strike at the economic development that the country badly needs.
The Government want to restrict judicial review, not abolish it—I must emphasise that. Rather, we want to restrict it to cases that have real merit. Judicial review should not be used as a campaigning tool. It should be concerned with unlawful activity that has or is likely to have a real effect on outcome.
Clause 64 is intended to filter out claims brought on technicalities highly unlikely to have made a substantial difference to the claimant’s position earlier and at a lower cost. Your Lordships’ amendments would, in the Government’s view, undermine the clause. The elected Chamber rejected the House of Lords amendment, voting by 319 to 203 last Monday.
As this House amended it, Clause 64 would permit the court to refuse permission or a remedy where it was considered highly likely that a complained-of flaw would have made no difference to the outcome for the applicant. The Government’s formulation would require the judge to consider an argument that it was highly likely that a complained-of flaw would have made no substantial difference to the outcome for the applicant, and to refuse a remedy or permission where he or she was satisfied that the argument was made out.
Although the clause introduced duties on the court, it retained significant judicial discretion—primarily, of course, in deciding when the “highly likely” threshold is met in a particular case, and where the court is of the view that there is any significant doubt that it is, it can act as it thinks fit. Indeed, we have deliberately avoided defining “highly likely” in the statute, meaning that the judiciary will determine how it will apply in practice.
In the House of Commons, in speeches pitched against the Government’s original position and in favour of the amendment made by your Lordships’ House, it was said that we would be putting the judge in the position of the decision-maker. I simply fail to understand this point. The judge is not being asked to second-guess the decision of the administrative body; he or she is being asked simply to consider whether it is likely that there would have been a substantially different outcome if the impugned decision or the conduct had not occurred. This is very much judicial territory. Judges perform such assessments in all sorts of different circumstances.
The second point made in the House of Commons was that the judge would not be able to come to a decision without a mini-trial or dress rehearsal. I do not accept that point either. At the moment he or she will have to decide in appropriate circumstances whether it is inevitable that the outcome would have been unchanged. Now the bar is slightly higher but the process by which the judge arrives at the conclusion will be very similar, if not the same.
The noble Lord, Lord Pannick, referred to public interest. Of course, public interest plays a part in a number of different legislative provisions in different contexts. But we believe that the threshold established in this clause does best serve the public interest. It will ensure that judicial review cases that progress beyond permission stage are not purely academic and are not based on minor technicalities highly unlikely to make any difference. We therefore think that this strikes the right balance. Indeed, the House’s amendments to the clause could serve to undermine the intended effect, and underestimate the significant safeguards built into the clause as agreed by the other place.
There is a balance between imposing appropriate duties to ensure that these reforms have the intended effect and preserving the important role of judicial decision-making. I strongly believe that this clause gets the balance right between allowing judges to decide matters of judicial review and nevertheless providing appropriate safeguards to ensure that inappropriate and meritless judicial reviews do not proceed further. I beg to move.
Lord Phillips of Sudbury (LD)
Before my noble friend sits down, will he be so kind as to give a little more information about the underlying justification, as he puts it, for the rejection of this amendment? That is, he put it in terms of abuse of the judicial review process, technicalities, academic applications and so on. Has he any statistics or indications as to the extent of that abuse?
Criminal Justice and Courts Bill
Debate between Lord Faulks and Lord Phillips of Sudbury(10 years, 1 month ago)
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Lord Faulks
I am not talking about the residence test at all. I shall come to that shortly, but it is a different issue. Noble Lords are perfectly entitled to ask me questions about it at that stage. I am talking about the suggestion that—regardless of the residence test, which is a separate issue that I shall come to later —the provisions on legal aid for judicial review in some way breach an undertaking that was given to Parliament. That seems to be the burden of what is being suggested.
The power to make changes in the future should not be unnecessarily constrained as proposed. Any changes made to scope, under Section 9, and eligibility, under Section 11, are subject to the affirmative procedure, ensuring full parliamentary debate as appropriate. I am sorry that the affirmative procedure is not considered to be as satisfactory as primary legislation. Nevertheless, it remains a proper way to bring such matters before Parliament.
As I said in Committee, making such changes by primary legislation would be a cumbersome process and a disproportionate use of this House’s time. It would stop the Government of the day making necessary changes without primary legislation, even where change was necessary to ensure that the provisions remained up to date. The House may possibly remember—the noble Lord, Lord Pannick, may well remember—that during the passage of the previous Bill, certain noble Lords, of whom I was one, were anxious that the power should include both improving and increasing the scope of legal aid, if it was considered appropriate, and that became part of the LASPO Act.
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend, but does he not accept that the procedure of dealing with changes via statutory instrument offers no protection whatever? There is no power to amend a statutory instrument; one can only reject it. I simply ask my noble friend: when did this House last reject a statutory instrument?
Lord Faulks
I am unable to answer that specifically. I am afraid that I do not know. I accept that there is a difference in the process, and I am sure that rejection is very rare indeed. However, that does not mean that a statutory instrument is not scrutinised. It is scrutinised, but there just happens to be a different method of scrutinising it—as my noble friend knows only too well.
Furthermore, there is no basis on which to distinguish judicial review from other, equally important, matters for which civil legal aid is available by necessitating primary legislation for such amendments. The approach envisaged by LASPO remains appropriate and effective, ensuring that any restrictions—indeed, any changes to eligibility or scope—whether technical or major, will get the scrutiny they require, but this should not necessitate primary legislation.
Finally, the amendment would have the serious effect of annulling any previous instruments made under Sections 2 or 9 of LASPO that restrict eligibility for, or scope of legal aid for, judicial review, including the provisions of an order debated and approved by Parliament in 2013 to ensure that the exclusions relating to judicial review agreed at the time of LASPO function as Parliament intended. Noble Lords will recall that the relevant amendment made under the 2013 order, which made it clear that legal aid for judicial review is governed by paragraph 19 of Part 1 of Schedule 1 to LASPO—and not any other provision—passed without opposition. The effect of the noble Lords’ amendment would be to annul the provisions for judicial review within the 2013 order, undermining the intention of Parliament.
Justice: Cautions
Debate between Lord Faulks and Lord Phillips of Sudbury(10 years, 9 months ago)
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Lord Faulks
I am sure—as was the Minister who previously answered Questions—that there is a great deal to be learnt from Scotland. Should the opportunity arise, I will certainly take advantage of it.
Lord Phillips of Sudbury (LD)
Might the decline in statistics—I hate even to question it—be down to the almost complete absence of the bobby on the beat?
Lord Faulks
I do not accept that. The use of cautions is widespread. One of the reasons we are making absolutely clear on the statute book the circumstances in which cautions should be used is that it will enable local scrutiny of the use of cautions. Indeed, this will enable the much maligned police commissioners to look at the figures, to be answerable to the community and to ensure that the statistics remain at a satisfactory level.
Social Welfare Law
Debate between Lord Faulks and Lord Phillips of Sudbury(10 years, 10 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I begin by congratulating the noble Lord, Lord Low, on securing this debate and restating my belief, and the Government’s belief, in publicly funded legal services as an integral part of the justice system. All speakers have made valuable contributions to this debate but I am sure that noble Lords will forgive me if I single out the right reverend Prelate the Bishop of Peterborough for his excellent maiden speech. It is clear from his description of the wide variety of people and situations which he encounters in his diocese that he will be able to bring many valuable insights into our debates. I am very glad to welcome him.
Notwithstanding the Government’s continued commitment to the justice system, any discussion on legal aid funding must focus on the spending that taxpayers fund and must recognise the financial realities we continue to face. As noble Lords are aware, legal aid was introduced more than 60 years ago. It has expanded very considerably in scope to become, arguably, something it was never intended to be. The Government were, until recently, spending scarce resources—in effect rather encouraging people to take their problems straight to court rather than trying to achieve successful and often enduring resolution of disputes in different ways.
The Government were forced therefore to take a fresh look and did not embark on the reform programme lightly. However, the fiscal challenge and the spending review settlement required all departments to look critically at where they were spending money, the effectiveness of those interventions and whether they could continue to be justified. A conscious decision was taken, following the public consultation that led to the LASPO Act, that spending the limited taxpayer funding available to the Ministry of Justice on social welfare law matters, when the majority of problems in this area did not require legal expertise to resolve, could not be justified. This and other difficult choices were scrutinised, amended and debated by Parliament after a thorough and wide-ranging public consultation.
People do not always need lawyers in cases involving divorce, employment, education disputes and debt problems, and courts should be a last resort rather than a first one. These are the types of problems that can and should be resolved before tribunals or similar bodies, which are designed to be accessed by unrepresented individuals. However, with the introduction of the LASPO Act—and this is often forgotten—we safeguarded legal aid to ensure that it was targeted to those who needed it most, for the most serious cases, in which legal advice or representation is justified.
We estimate that following the introduction of LASPO around £50 million will still be available in legal aid for social welfare law, which will fund community care and other high-priority debt and housing cases. For those who need or choose to go to court, but who fall outside the scope of the legal aid scheme, there are other resources available in other forms. There are a diverse range of services available that recognise and match the differing needs of individuals, helping them to navigate the system and resolve their problems. I accept that the challenge is to ensure that relevant services continue to be available in a sustainable way. We have seen industries innovate and modernise to address changing needs and environments. It is essential that the advice sector does so too. The noble and learned Lord, Lord Hope, spoke of the increased use of technology. There is also the support for legal initiatives. My noble friend Lord Gold referred to pro bono contributions from young solicitors.
However, the Government have recognised the various pressures that the not-for-profit advice sector would face, as different funding sources were affected as a range of organisations reviewed their funding positions in the light of the changing fiscal environment. That is why the Cabinet Office led a review looking at the long-term sustainability of the not-for-profit advice sector. The Advice Services Review report, published in October 2012, acknowledged that the Government have a role in supporting the sector to adapt to the new funding realities but also made it clear that advice providers would need to take the initiative and change the way they work, adopting often a more collaborative approach with partner organisations across the sector to ensure the long-term sustainability of supply.
In fact, the Government did not wait for the outcome of that report. Since 2010 the Government have provided significant additional support over and above their usual funding to a range of front-line advice organisations such as Shelter, CABs and law centres that provide direct advice to clients on matters such as social welfare law, to help them adapt and make the transition to the new funding climate. This includes providing half of the £68-million advice services transition fund, launched in November 2012 and administered by the Big Lottery Fund, which was referred to by the noble Lord, Lord Low. This fund has provided a total of 228 grants of between £50,000 and £350,000, which are specifically available during 2013-15 to help the sector to address immediate need and help to strengthen organisations for the demands that lie ahead.
The Ministry of Justice itself has worked collaboratively with relevant partners in the sector to ensure that clients continue to be supported even after the introduction of LASPO. In the lead-up to the introduction of LASPO, the MoJ developed a targeted communication strategy to raise awareness of legal aid changes and, in particular, to signpost clients not eligible for legal aid to relevant alternative sources.
My officials also worked closely with other government departments, legal aid providers, advice organisations and relevant third-sector partner organisations to raise awareness and enable them to provide effective information about legal aid changes themselves and details about alternative sources. As part of this, we developed and introduced a new and simple online service. Those words are easy to utter but, having actually tried out this service, I can confirm that it is genuinely simple and can be accessed by those who are not sophisticated in these matters. It is considerably simpler than, perhaps, buying an air ticket from a budget supplier. People can check whether they might be eligible for legal aid. Where they might not be, this service will signpost them to alternative sources. To date, over 194,000 clients have used the site to look for assistance, and we continue to work with legal aid providers and advice organisations on improving awareness.
I turn to the excellent report itself, provided by the noble Lord, Lord Low, and his committee. I have read it with great interest. There are a number of important factors about it. I particularly applaud that it does not simply seek the reinstatement of the status quo ante but rather explores a range of different possibilities. It will be a considerable source of assistance to all the parties as they prepare for the election. The colleague of the noble Lord, Lord Beecham, Andy Slaughter, has said that he will be mining the report for ideas. I know that there have been meetings at No. 10 and that there the noble Lord has met my ministerial colleague with responsibility for these matters, Shailesh Vara. It is an important document that will provide food for thought and inspiration for the way forward.
I welcome the fact that the report does not duck the fact that there are fiscal challenges facing this Government, which necessarily means that fewer resources are available and that hard decisions will have to be made about how they are spent. I also welcome the recognition that the advice and legal aid services sectors are in a period of transition and innovation, which, as the report states, offers scope for agencies to work more collaboratively and in more cost-effective ways in order to help their clients’ needs.
I assure noble Lords that the Ministry of Justice recognises the importance of encouraging decision-makers to get it right first time—a point made in the report and by the noble Baroness, Lady Grey-Thompson, in the course of her speech—and of ensuring that we continue to innovate and improve the current system, as suggested in the report. I can confirm that the Ministry of Justice works closely with other government departments to improve decision-making. We are also considering the recommendations referring to the way in which Her Majesty’s Courts and Tribunals Service hears appeals. The Ministry of Justice has published a strategic work programme for those tribunals that describes how we are working to improve the system in line with efficiency, fairness and accessibility.
We have also established the Administrative Justice Forum, an independent body made up of a range of people who have direct contact and can represent views. We have made considerable progress in the improvement of feedback mechanisms on decision-making to the Department for Work and Pensions, with the introduction of telephone case management and the employment tribunal.
The noble and learned Lord, Lord Woolf, drew an appropriate analogy to his work on access to justice and how that changed the culture and the way that we looked upon the resolution of disputes. That was referred to by the noble and learned Lord, Lord Hope, as well. I am glad to see that the judiciary is referred to specifically in the report of the noble Lord, Lord Low, as providing significant innovation in dealing with litigants in person, which are a reality that we have to face. I refer in particular to paragraph 4.12 of the report. This is the world in which we live: judges would no doubt prefer not to have litigants in person, but they are responding well, using modern technology in assistance to make the system more user-friendly for those who do not have the benefit of legal advice.
There was a great deal of complaint made by the noble Lord, Lord Bach, who I recognise has been a persistent champion of those needing social welfare law. He has also opposed almost every other cut, but I accept that he has made a particular feature of this area. He was critical of the use of the exceptional funding scheme and said that the Government were not, in fact, providing exceptional funding in the way that it was envisaged. I endeavoured to answer questions on that when they were raised in a Parliamentary Question recently. The position is that we think it is working; no doubt the forms might be improved, but we have to provide funding where there is a potential breach under the European convention or EU law. That is the position; that is what is provided by the Act.
There are many other features to which I would like to respond, but time does not permit me to do so. We acknowledge the many useful observations made during this debate and there is a great deal of value in what was suggested in the report itself, particularly in regard to the administrative justice and tribunal system. The Government will, of course, carefully consider these suggestions in the future and continue to incorporate them into our strategic work where it is appropriate to do so.
Lord Phillips of Sudbury
Can the Minister give any reassurance at all to the many who have spoken about public legal education, particularly in schools?
Lord Faulks
I cannot give any formal reassurance as to whether public legal education will be part of any schools curriculum. It is clearly an important feature in the report and is something that will be considered along with other matters.
Legal Aid
Debate between Lord Faulks and Lord Phillips of Sudbury(10 years, 10 months ago)
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Lord Faulks
The Government are aware of the JCHR’s concern about the lack of training. I have been reassured that the employees are appropriately trained and aware of their responsibilities. In terms of the forms, I give the same answer that I gave before, which is that the matter is kept under review. It is believed that the forms are perfectly within the capabilities of solicitors to understand. If one of these forms is inadequately filled in, you are told, whereas with some forms in other contexts you never know which box you failed to tick.
Lord Phillips of Sudbury (LD)
My Lords, can the Minister say whether any research has been done into the number of cases of citizens who would wish to make applications but are unable to find anybody to help them in making those applications?
Lord Faulks
I think it is approximately 61. I will have to write to my noble friend with the precise number who actually made applications. Very often they are given a preliminary view, which they can then take to a solicitor, who will then be able, if he has been given some encouraging words, to take the matter forward.
Defamation Bill
Debate between Lord Faulks and Lord Phillips of Sudbury(11 years, 8 months ago)
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Lord Faulks
My Lords, perhaps I may deal first with government Amendment 2B. Initially, I was very sympathetic to the idea of restricting a company’s right to sue because of the instances of bullying, which are now well known. I have become slightly more troubled by the restriction which is to be imposed in what I hope will not be impolite to call something of a volte-face by the Government in this respect. I understand the reasoning behind it but I seek from the noble Lord, Lord McNally, reassurance about what a company must establish to show that it has been, or is likely to be, caused serious financial loss.
In the well known case of Jameel v Wall Street Journal in 2007, the House of Lords considered, among others, the Derbyshire case. In particular, in his leading speech Lord Bingham said that he was satisfied that it was appropriate for a company not necessarily to prove special damage but to establish that a publication had the tendency to damage. I shall quote from paragraph 26 of his judgment:
“First, the good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even its own staff, make people less ready to deal with it, less willing or less proud to work for it. If this were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. I find nothing repugnant in the notion that this is a value which the law should protect”.
He went on to say:
“I do not accept that a publication, if truly damaging to a corporation’s commercial reputation, will result in provable financial loss, since the more prompt and public a company’s issue of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue”.
What concerns me a little is that a company that has genuinely been damaged in its reputation will often find it very difficult to surmount this hurdle which is inserted in the Bill when it is not easy to produce by reference to a balance sheet an exact equivocation between the damage to a reputation and the damage to a company. It may be much more subtle than that, yet there is genuine damage to a reputation. Therefore, I would welcome some clarification from the Minister about what a company may need to establish short of producing a balance sheet, nevertheless having some evidence of real damage to the company.
There is a problem with the alternative tort of malicious falsehood in that the offer of a mens rea defence is not available. Of course, malicious falsehood requires proof of malice and is a somewhat unsatisfactory hurdle where a defamation action is, on the face of it, more suitable.
As to the amendment suggested by the noble Baroness, Lady Hayter, concerning non-natural persons, I entirely agree with my noble friend Lord Lester. I can add that the courts are currently considering a number of cases where they are patrolling the border, as it were, of the Derbyshire principle and deciding whether, on particular facts, the ratio decidendi of Derbyshire should be applied to a public role or public function having been performed by a particular body. I suggest that it is much better for the law to evolve, as the Minister said, rather than to codify it in this way. Of course, at the moment the courts are generally considering the question of public function in the context of the Human Rights Act and whether the obligations under the convention apply. There are many hybrid cases which are going to make these cases very fact-sensitive, and that is an indication that we should avoid trying to codify.
I strongly oppose Amendment 2D proposed in Motion B2. The initial requirement of seeking the permission of the court is going to add to costs. Largely thanks to the helpful intervention of the CPR—I see the noble and learned Lord, Lord Woolf, in his place—the courts have the flexibility to intervene on questions of meaning. They can strike out the whole or part of a case. In any event, I suggest that there is sufficient flexibility to make this initial hurdle supererogatory. It will be expensive and I fear that it will not in fact achieve what I understand lies behind this amendment, and so I strongly oppose that.
Lord Phillips of Sudbury
My Lords, I shall talk briefly to Amendment 2B and, in so doing, I echo what has been said about my noble friend Lord McNally. I do not know about McNally’s Bill but I certainly knew a Bill McNally, who was one of the finest poachers in Suffolk.
I am not happy with Amendment 2C, in the name of the noble Baroness, Lady Hayter of Kentish Town, but I have a lot of time for her Amendment 2D, supported by the noble Lord, Lord May of Oxford. As was said by my noble friend, there seems to be considerable anxiety around the bullying of corporations, which seems to get worse as time goes by. Some of the largest and wickedest of them are some of the most brutal in the way that they will abuse the law to silence critics.
I want to raise with my noble friend Lord McNally a point on Amendment 2B because this is potentially a Pepper v Hart occasion, where he could say in the most trenchant terms that my concern is misplaced. The amendment enlarges on Clause 1 of the Bill, headed “Serious harm”. It says:
“For the purposes of this section, harm to the reputation of a body that trades for profit”.
I am not absolutely clear that the phrase,
“a body that trades for profit”,
is beyond ambiguity. I am thinking particularly of charities, some of which trade for profit in the mainstream of the work that they do—for example, some schools, some hospitals and gymnasia. There are many areas where charities carry on a trade, but it is a charitable trade and it is, in one obvious and simple sense, for profit because it generates the wherewithal enabling them to run their hospital or whatever it is. I could have chosen language, I think, that would put the meaning beyond doubt, but we have to live with the wording that is here. As I understand it, there is no further opportunity to change the phrasing of this part of Amendment 2B. So I hope that my noble friend Lord McNally will assure me that this wording is specifically designed to exclude from its ambit the work of charities. Otherwise, I think we have a very large problem with this amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Faulks and Lord Phillips of Sudbury(12 years, 8 months ago)
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Lord Faulks
My Lords, I will be very brief. I supported the predecessor of this amendment as it went through the various stages in your Lordships’ House. I did so because, for the reasons that have already been given, I thought it was an important statement of principle that ought to govern the way in which we considered the Bill and ought to be part of the Bill. I remain of that view.
It seems that the real reason for the objection to this amendment is the fear of judicial review, or the rather vaguely described “satellite litigation”. I understand why government lawyers, who are not always right about everything, may consider that there is a risk of judicial review in all sorts of situations: because of the ingenuity of lawyers and perhaps the flexibility of the Human Rights Act. However, given the way in which it is currently framed, it seems absolutely hopeless to think that there could be judicial review in these circumstances. The amendment as formulated makes it entirely clear. We are all familiar with provisions with no such discretion or reference to the Lord Chancellor or the Secretary of State, in which case courts have sometimes said that it is an absolute duty. However, with this proviso it is almost as though the Government have had the benefit of the noble Lord, Lord Pannick, advising them on how to make the matter proof from judicial review.
Lord Phillips of Sudbury
My Lords, I went to the other place to hear our amendments debated. As I am not a former Member of the other place, perhaps my noble friend will take it from me that its consideration of some of our amendments was cursory—and that is putting it quite generously. I admit to being very disappointed that, on such an important Bill as this, the other place allowed so little time for consideration of these amendments that one cannot say that they scrutinised the amendments with the seriousness with which we try to scrutinise.
Having said all that, I am still mystified by this amendment. I agree with my noble friend Lord Faulks, and consequently with my noble friend—well, he is a friend but he is not a friend—Lord Pannick. It seems clear—indeed it was part of the case made by the noble Lord, Lord Pannick—that there is no prospect of judicial review, and he has designed this amendment to cut out that prospect. However, to the extent to which he has been successful—and I think he has been—it makes the clause ineffectual. It has absolutely no practical effect. I am afraid that it is admirable in sentiment but ineffectual in purpose and therefore should not be in the Bill.