Judicial Review and Courts Bill

Lord Howard of Lympne Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Brown, with whom I crossed swords in the courts on a number of occasions many moons ago. I join others in welcoming the noble Lord, Lord Hacking, with whom I often debated in the Cambridge Union even longer ago.

I shall restrict my remarks to the first part of the Bill. I should perhaps give an advance warning that I shall, as is often my wont, strike a discordant note in your Lordships’ deliberations on these issues. I want to preface what I say by making one key distinction, which I am afraid puts me at odds with my fellow Petrean, the noble Lord, Lord Thomas of Gresford. Those of us who have reservations about the growth in judicial review in recent years are sometimes accused of attacking the rule of law. That criticism is entirely misconceived. I yield to no one in my respect for the rule of law, as I hope I demonstrated in my opposition to the Governments internal market Bill. The issue to which the growth of judicial review gives rise is not the rule of law but rather who makes the law. Who is to have the final say on the laws which govern us? Is it to be Parliament, the traditional repository of sovereignty, and, at least as far as the other place is concerned, democratically elected and so accountable to the people, or the judges of the Supreme Court, unelected, unaccountable and the product of a process which in many ways resembles a self-perpetuating oligarchy?

There can be no doubt that judicial review has increased beyond recognition in size and scope over the last 50 years. Both the report of the Review of Administrative Law and Professor Richard Ekins, in one of his many persuasive papers for Policy Exchange’s Judicial Power Project, quote from the introduction to De Smith on administrative law, the standard textbook, which says:

“Public authorities are set up to govern and administer, and if their every act or decision were to be reviewable on unrestricted grounds by an independent judicial body the business of administration could be brought to a standstill. The prospect of judicial relief cannot be held out to any person whose interests may be adversely affected by an administrative action”.


Those words may be regarded as a classic description of what judicial review used to be. But the last time they appeared in De Smith’s book was in 1973. Indeed, as early as 1980 its editor noted,

“a steady increase in the readiness of the courts to intervene”.

Since then, there has been in the words of words of the noble and learned Lords, Lord Neuberger and Lord Clarke, and the noble and learned Baroness, Lady Hale, an explosion of judicial review, and one that has taken place without any parliamentary authority. That this explosion has led the Supreme Court into conflict with Parliament cannot be in doubt. My noble friend the Minister and others have dealt with the Cart case and the Bill makes provision for its reversal. But the case of Privacy International is very similar. In that case it was the Investigatory Powers Tribunal, a specialist court set up to make decisions on sensitive issues relating to national security, which Parliament had sought to protect from judicial review. The Supreme Court set aside that protection and the case is particularly noteworthy for the speech of Lord Carnwath, with whom I once shared a set of chambers. Lord Carnwath said that, if an ouster clause is expressed so clearly as being incapable of being interpreted not to prevent judicial review, it would be open to the courts to decline to give effect to such legislation. A more direct or naked challenge to the principle of parliamentary sovereignty it is difficult to imagine.

Then, of course, we have the two Miller cases, in which the Supreme Court paid lip-service to the supremacy of Parliament and even claimed to be ensuring that Parliament had a say. But Parliament does not need the intervention of the courts to have a say. If the other place had wished to prevent the Prime Minister from exercising the prerogative to prorogue Parliament, it could have done so. If the other place had wished to insist on a vote on Article 50 before it was activated, it could have done so. Of course, the court, in its prorogation case, was only able to reach its decision by the most blatant distortion of the Bill of Rights, which provides that

“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

Prorogation is an event that takes place in your Lordships’ House and which Members of the other place are invited to witness. It is clearly a proceeding in Parliament. The judgment of the Supreme Court stated that the Bill did not apply because prorogation did not involve any decision of Parliament. I venture to suggest that the drafters of the Bill of Rights had as great a command of the English language as Lady Hale. If they had wanted their prohibition to apply only to those proceedings which involved a decision, they could and would have said so. There are many other cases in a similar vein which I do not have time to mention.

Why does all of this matter? It matters because accountability is the key to democracy. Members of the other place are accountable to the electorate. Judges are not. I stood for election to the other place on eight occasions—twice unsuccessfully, six times successfully. On each of the five occasions when I stood for re-election, I had to account to my constituents for the actions I had taken in the previous Parliament. The judges are accountable to no one.

So, given that the only decision the Bill seeks to reverse is the decision in Cart, I find it deeply disappointing. The noble Lord, Lord Pannick, with whom I rarely agree on these matters, described it as minimalist. He was spot on. The Minister, in the other place, said that the Bill was not necessarily the Government’s last word on these issues. I certainly hope that is the case, but I am not holding my breath.

Independent Review of Administrative Law Update

Lord Howard of Lympne Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Howard of Lympne (Con) [V]]

My Lords, I echo the tributes that have been paid to the noble Lord, Lord Faulks. I congratulate him and the panel on their report and I welcome the Government’s response.

Unlike some noble Lords who have spoken, I particularly welcome the Government’s decision to launch a consultation on proposals to examine the use of ouster clauses. As the Lord Chancellor says, the current position on ouster clauses, which is not to give them effect, goes against the intention of Parliament. In many ways, the mother of all ouster clauses is to be found in Article 9 of the Bill of Rights, which provides that

“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”,

a provision to which scant regard was paid by the Supreme Court in the Prorogation case.

Can my noble friend the Minister give us any idea of the timescale of the consultation exercise to which he has referred? When may we expect to see—and, I hope, enjoy—its fruits?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for my noble friend’s comments on the report. I think the consultation period is six weeks. As soon as we have the responses in, we will work at pace to bring back the Government’s response to that consultation.

On ouster clauses and the decision in Miller II, perhaps I should merely stick to what I have said so far. I do not really want to get dragged into an analysis of Miller II this evening.

European Union Referendum (Date of Referendum etc.) Regulations 2016

Lord Howard of Lympne Excerpts

Wednesday 2nd March 2016 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, it is a particular pleasure to follow my noble friend Lord Gilbert of Panteg and to congratulate him on his excellent maiden speech. He and I have known each other for many years, have served our party for many years and share the very considerable advantage of having started our lives in south Wales. On the issue before your Lordships’ House this afternoon we differ, but I echo the hope and aspiration of my noble friend that we can express our differences with courtesy and mutual respect. I think—though others may differ—that we have just about kept to the right side of that line this afternoon during our exchanges, and I hope we will continue to do so in the months ahead, because one thing is absolutely clear: on 24 June—whatever the result of the referendum—the Conservative Party will have to come together. It will continue to have the responsibility of governing our country for at least another four years, and probably, given the current state of Her Majesty’s Opposition, for quite some considerable time after that. So we must, and we will, then come together under the continuing and outstanding leadership of the Prime Minister. We must bear that in mind and, indeed, keep it in the forefront of our minds, over the next four months.

Why is it, then, that on this issue I feel compelled to speak out against the Prime Minister, whom I have known and admired for nearly 25 years? It is partly because I have come to the conclusion that the European Union, in its present form, is a flawed and failing project, which is making its inhabitants poorer than they should be and because it is failing—contrary to what has been said by some of your Lordships this afternoon—to keep its people safe. But it is mainly because, in its present form, it is undermining and eroding our cherished principle of democracy. Of the many gifts which our country has given the world, the gift of democracy—of democratic self-government—is the greatest. At the heart of that democracy is a connection between the votes cast at our general elections, the Governments they elect and the accountability which comes from the ability of the voters to turf out a Government who fail to keep their promises.

[Lord Foulkes of Cumnock]

Does the noble Lord not appreciate the irony of what he has just said in this Chamber?

[Lord Howard of Lympne]

I am talking about the way in which our country is governed and our Government are elected. That principally is the responsibility of the other place. If a Government, having made their promises to the electors, are unable to keep their promises, not as a result of some conscious decision on the Government’s part but as a result of a decision of the unelected European Commission, or the unaccountable European Court of Justice, that crucial connection is broken. That is why our membership of the European Union in its current form undermines and erodes our democracy.

[Lord Ashdown of Norton-sub-Hamdon]

If the noble Lord had not used the word “unelected”, I would not be asking this question, but does he feel no twinge at all about criticising an unelected institution elsewhere when he comes from an institution that bears no connection with democracy whatever?

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[Lord Howard of Lympne]

I have explained the answer to that. Our Government are chosen democratically by the free and fair votes of the people of our country. I believed—and, indeed, continue to believe—that it would be possible to reform the European Union in such a way as to mitigate that damage. But despite the best efforts of the Prime Minister, that is not currently on offer. That is why I shall vote to leave on 23 June.

Our opponents ask us what alternative arrangements we would make if we left. I will quote the words of Jacques Delors. However, bearing in mind the strictures of the noble Lord, Lord Hannay, I will quote him not on the prospects of further integration but on the alternative arrangements that would be available to the United Kingdom. He said:

“If the British cannot support the trend towards more integration in Europe”—

which I think we are all agreed we cannot—

“we can nevertheless remain friends, but on a different basis. I could imagine a form such as a European economic area or a free-trade agreement”.

The impression has been created, not least in this debate—it permeated the speeches of the noble Baroness, Lady Morgan, and the noble Lord, Lord Mandelson—that if we left we would be some kind of supplicant. But we are the fifth biggest economy in the world. We are a market to which everyone wants access. We are, in fact, the biggest market for the rest of the European Union and we run a very substantial deficit in our trade with them. The document Possible Models for the United Kingdom Outside the European Union, which was published today, is replete—page after page is full of this—with the difficulties we would have in obtaining access to the European market. However, it makes scant reference to the need for others to have access to our market in our country—the fifth biggest economy in the world. Of course the Germans would want to continue to sell us their BMWs and Audis. Of course the French would want to continue to sell us their wine. They are sensible people; it is in their interests to trade with us on free and fair terms, so I have no doubt that we would reach an agreement with them in a relatively short period of time. We need to recover our national self-belief; we need to recover our national self-confidence; and we need, above all, to recover control of our nation’s affairs. We can achieve that only by voting to leave on 23 June.

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[Lord Kerr of Kinlochard]

On the second point, I have to correct the noble Lord. The sentence is clearly about further integration inside the eurozone without additional powers being passed by member states outside the eurozone. On the first point, I can only apologise. I had myself thought that the former Chancellor, the noble Lord, Lord Lawson, agreed with the present Chancellor that it was in the interests of the UK that the eurozone market should not collapse and that it was in the interests of the UK economy that these arrangements should survive. That is the policy of this Government. I had thought it was a policy supported by the noble Lord, Lord Lawson.

The exchange with the noble Lord, Lord Mandelson, did not quite bring out the fact that of course we could trade with other third countries on WTO terms. The terms that we trade on now, which have been secured by the EU, are much better than WTO terms, because they have been secured using the muscle of a market of 500 million people. That is a fairly fundamental point. The key point on trade is that if we leave, we lose.

The argument of the noble Lord, Lord Howard, on the other hand, did seem to contain a lacuna, which I greatly welcomed; this time he did not advance what I call the Maurice Sendak theory. The Sendak argument—I call it that in tribute to that great literary work, Where the Wild Things Are—is one that the noble Lord has advanced in public several times; I heard him explaining it on the radio the other day. I think it is a view held by Mr Cummings—not the cartoonist but the conspirator. The argument is that if the nation votes to leave on 23 June, we should not leave but should stay firmly where we are, saying and doing nothing, not invoking Article 50, and the wild things will all come rushing to us as supplicants, saying, to quote from the great book:

“Oh please don’t go—we’ll eat you up—we love you so!”

This is a theory that Mr Boris Johnson advanced a few months ago and then resiled from a few months ago, and then advanced again a fortnight ago and then resiled from this week; his bicycle wobbles but he remains vertical. Sadly, the wild things are fiction. The fact is that the other member states are fed up with us. To them, this week’s European Council on the refugee crisis is much more important than was the Council, and the conclusions, that we are debating now.

It is surreal that any UK Government could decide not to act on a no referendum. It is even more surreal that the French press, which believes that Mr Cameron got away with murder, could agree that in the event of a no, murder should be followed by massacre.

[Lord Howard of Lympne]

The noble Lord says that the French Government are furious at what the Prime Minister got away with, but the French Foreign Minister is on the record as saying that the Prime Minister achieved nothing of substance.

[Lord Kerr of Kinlochard]

I thank the noble Lord for his helpful intervention. I believe that if we were to say no, our decision would be greeted with regret in most EU capitals, but that regret would be accompanied by some relief that all the contingency concessions made to Mr Cameron would automatically fall away—and they would; that is what the European Council’s conclusions text says.

The different argument that the noble Lord, Lord Howard, advanced today is one that I have to take much more seriously. This time it is the rest of the world that comes as supplicants, rather than the EU 27, to a self-confident UK freed of the shackles of the European Union, bestriding the world, trading on our own terms and striking new alliances. The Canadian, Australian, New Zealand, Japanese and Indian Governments have all made clear that they believe it is in their interests and ours that we stay, not go. That is the view of the US Administration, the Government in Beijing and the G20. I do not believe that the rest of the world is waiting to do business with us on our terms.

Despite reservations about the strategy that the Government have followed, I have to say that I warmly endorse and welcome the conclusions of their White Paper: we are better off, safer and stronger in the EU. That is certainly true.

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[Lord Faulks]

In an interview which I saw, the Lord Chancellor suggested that the European Court of Justice—or the CJEU, as it now prefers to be called—is the supreme court in Europe and is above all European institutions in interpreting the law. That is entirely a correct statement of the position. If he suggested—and I am not sure whether he did or did not because it seemed to me that he and the Prime Minister might have been talking about rather different things—that the treaty was not binding on the European Court of Justice, he was right to the extent that it is open to the European Court of Justice to decide that its jurisdiction is determined by the nature of the treaties only. It is highly unlikely that they would do so—highly unlikely because there is a clear agreement evinced by the 28 countries, the members of the European Union. No self-respecting court that had any say for its own reputation would do violence to that agreement.

[Lord Howard of Lympne]

Is it not the case, however, that although all courts these days are unpredictable, the European Court of Justice is more unpredictable than most? Unless and until a case came before the European Court of Justice, we simply do not know what their decision will be.

[Lord Faulks]

Some courts are more predictable than others, but the confident assertion from all legal advisers whose opinion I have read is that, for example, were there to be an argument to the effect that our changes to migration arrangements were somehow contrary to the principle of free movement, there is no way that the European Court would say, “Well, the treaty has freedom of movement, but all the member states have agreed to the contrary that there should be this arrangement for the United Kingdom”. I simply cannot believe that it is arguable that there would be any other conclusion than that there was honouring of the agreement.

Assisted Dying Bill [HL]

Lord Howard of Lympne Excerpts

Friday 16th January 2015 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I strongly agree with what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, just said. We need to recognise that the amendments are not really about clarity but about conferring on the Bill the stigma which traditionally attaches to suicide. The use of the term suicide breaches the Samaritans’ guidance on language, which states that:

“Inappropriate or careless use of language can perpetuate stigma or sensationalise a death”.

The term suicide is inappropriate when discussing the rational choice of a mentally competent terminally ill patient who is seeking a peaceful and dignified death. The American Psychological Association has stated that:

“It is important to remember that the reasoning on which a terminally ill person [whose judgments are not impaired by mental disorders] bases a decision to end his or her life is fundamentally different from the reasoning a clinically depressed person uses to justify suicide”.

The amendments add nothing to what the debate should be about and distract us from discussing the mechanics of the process, which I think we should get on with.

The Bill would legalise the provision of assistance to a dying competent adult to control the time and manner of their death when that death is imminent and unavoidable. It would not legalise assistance with suicide for those who are not terminally ill, and I think that we should leave the Bill as it stands.

[Lord Howard of Lympne (Con)]

My Lords, I am sorry to disagree with the noble Lord, Lord Low, but I do so for the following reason. I have previously declared my interest as chairman of Hospice UK, the umbrella organisation for hospices in this country. The hospice movement has no collective view on the Bill, so inevitably I speak for myself, not for the hospice movement, but I know that the point that I am about to make is widely shared within that movement. To put the matter at its lowest, if the Bill becomes law, the challenges which the hospice movement and the people who work in it will face will be much more complicated. It is therefore essential that clarity is achieved.

The noble Lord, Lord Pannick, in his characteristically powerful speech, said to your Lordships that anyone who reads Clause 1 can be in no doubt about what it means, and he read out Clause 1. That would be a very persuasive argument in a court of law, but I fear that most people who will be faced with the terrible decision which the Bill will legalise will not have read Clause 1. That argument does not advance the issues before your Lordships on the amendments. I believe that clarity is essential, and can best be achieved by agreeing the amendment in the name of the noble Baroness.

[Lord Mawhinney (Con)]

My Lords, as one who has signed several amendments, I will say that I did so not because of conversations with other noble Lords but because I read the Bill. The more I read, the more I was puzzled by its title. I wish that I had thought of the simile that the noble Baroness, Lady O’Neill, used when she talked about the similarity with truth in advertising. I came to the view that the Bill was about assisting suicide rather than assisted dying. I was stimulated along that thought process by two things. One was the speech of my noble friend Lord Howard at Second Reading when he talked about the work of the hospices. I have recently had some involvement with a hospice in Peterborough. The second was correspondence with doctors who work in the palliative medicine field. Both things created in my mind the vision that the noble Lord, Lord Winston, and the noble and right reverend Lord, Lord Harries of Pentregarth, gave of assisted dying being a palliative feature of making the process more comfortable for the patient.

I am just smart enough never to want to tangle on legal matters with the noble Lord, Lord Pannick. I noted the points that he read to us from the Bill in support of his contention that the Bill is perfectly clear. The second thing that caused me to come to the conclusion that I should put my name to the amendments was Clause 4—so let me read just a little bit to your Lordships. It states:

“The assisting health professional must remain with the person until the person has … self-administered the medicine and died”.

Where I come from, I guess that they would call that suicide. The noble Lord, Lord Brennan, introduced the word “euphemism”, which has been at the heart of a lot of the speeches that we have heard. It has taken the form of clarity in telling the truth. I have to say that in all honesty I do not like the euphemism attached to the wording of the Bill when it comes to this point, and I was happy to add my name to the amendments tabled by the noble Baroness.

Crime and Courts Bill [HL]

Lord Howard of Lympne Excerpts

Tuesday 4th December 2012 Lords Chamber

[Lord Pannick]

My Lords, I am in the position which is often that of dissenting judges in the Court of Appeal who say that they have the misfortune to disagree with their judicial colleagues. Eminent though the previous speakers are, I cannot support these amendments. Your Lordships’ Constitution Committee, of which I am a member, reported on judicial appointments in March this year. We set out the scale of the problem. The problem is that about 16% of High Court judges and only 11% of Court of Appeal judges are women. Only one member of the Supreme Court’s 12 justices is female. We found that one of the reasons why there are so few women on the Bench at High Court level and above is the inflexibility of the working arrangements. We observed that there are increasing proportions of women at senior levels in all other professions and that this has occurred in recent years, in part, because of the increasing use of flexible working hours. We concluded that, for the number of women within the judiciary at the highest levels to increase significantly, there needs to be a firm commitment to flexible working and a recognition that many women will want to work part time for family care reasons.

The noble and learned Lord, Lord Lloyd of Berwick, was concerned to emphasise in his remarks at the beginning of this debate that he is in favour, of course, of flexible working: it is part-time working to which he objects. However, I say to the noble and learned Lord that a part-time worker is simply one who needs to work flexibly on a regular basis because of continuing family care commitments that arise every week of the year.

[Lord Howard of Lympne]

Can the noble Lord tell the House to what extent the commendable progress, to which he referred, that has taken place in other professions has been a result of a statutory provision requiring part-time appointment?

[Lord Pannick]

I am not suggesting that it has. The problem, as the noble Lord will recognise, is that the judiciary is way behind other professions in securing that women are represented in high proportions at the senior level. Of course, there is the utmost commitment of those in senior positions to do all they can. This is a fiendishly difficult problem but part-time working has been recognised as one of the central means by which women are able to combine family care commitments with progressing in a profession.