Criminal Justice and Courts Bill

Debate between Lord Paddick and Lord Mackay of Clashfern

Monday 28th July 2014 Lords Chamber

[Lord Paddick (LD)]

My Lords, I rise briefly to speak to this amendment. It will become apparent very quickly that I am not a lawyer, and never have been, but I have been involved in one case of judicial review as a result of becoming a victim of phone hacking.

The fact that I was a victim of phone hacking became known to the police, but the police did not inform either me or other victims when that information came to their notice. As a consequence, together with others, we took the Metropolitan Police to judicial review on two counts: first, over its failure thoroughly to investigate phone hacking in the first instance; and, secondly, on its failure to inform those that it knew were either victims or potential victims of phone hacking to enable them to take steps to guard their privacy. The court found that whether the police should have investigated thoroughly the first time round was entirely a matter for the police. However, on the issue of whether the Metropolitan Police should have informed the victims of phone hacking, the court found that it was under a legal obligation to inform them. That important principle was therefore established through this judicial review.

Bearing in mind that by the time we brought the judicial review we had been informed by the police that we were victims of phone hacking, can my noble friend the Minister confirm that the outcome of that application would not have been substantially different for us? In other words, we already knew that we were victims, but we wanted to establish the principle that the police should have told us earlier. If Clause 64 were enacted, we may not have been able to bring that judicial review and establish the important principle that the police must inform victims of this sort of crime as soon as they become aware of it.

[Lord Mackay of Clashfern]

My Lords, I, of course, have nothing like the width of experience that has been spoken of already by a number of noble and learned Lords and other noble Lords. However, I have a certain amount of responsibility in connection with judicial review from quite an early stage.

Your Lordships will remember that the law of England originally provided for four rights, which were prerogative writs that had the effect of controlling the subordinate powers at the insistence of the High Court. That is because the High Court is a court of universal jurisdiction. The difficulties of these particular prerogative writs were gradually appreciated and, eventually, the judges decided that it would be a good idea to have a new form of procedure called judicial review. They ultimately incorporated it in a rule of court which, as I remember, was called Order 53, and that was the situation for some time. However, it was not long before the judges themselves decided that it was not good enough to have procedure of this kind depending only on an Order 53 rule of court. It was therefore important that this became statutory and that Parliament should have responsibility for the legislation which affects and controls the process of judicial review. It is therefore 100% clear that Parliament has authority to deal with this. That does not necessarily mean, of course, that any particular action proposed to Parliament by a Government is necessarily the best thing to do.

However, I would like to mention one or two aspects of this. The first is from the point of view of planning. I used to practise some planning work in the 1950s, 1960s and 1970s and in the planning legislation there was, I think almost from the start, always a provision empowering an applicant or a person aggrieved by a decision in the planning field to apply to the court. There were two branches of that: first, where there was no power to make the decision; and, secondly, where the decision was the result of a failure of process. I think that the current form is in the Planning and Compulsory Purchase Act 2004, where the second provision is,

“that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement”.

It is important to see that it applies where the interests of the applicant have been “substantially prejudiced” by a failure of procedure.

I think that that system worked well. In due course, of course, as a result of various decisions, including a decision of this House in its judicial capacity, in which I took part, it was held that judicial review was sometimes available even when there was a statutory form of appeal, and therefore judicial review started to be used in the planning field, notwithstanding the provision that I have just referred to. A number of cases came along, one of which the noble and learned Lord, Lord Woolf, will remember, when somebody was faced with a document at the beginning of a hearing before the inspector, and the inspector granted him an adjournment only until lunchtime. Lord Denning and his colleagues, notwithstanding the eloquent defence by Mr Woolf, as he then was, found against the Secretary of State. However, that is a success of the old form and the present form of statutory appeal.

In a more recent case at the Court of Appeal, the leading judgment was given by the judge who was the senior presiding judge in England in my time, Lord Justice Auld, who said, on dismissing the appeal:

“In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited— some might say abused—as a commercial weapon by rival potential developers to frustrate and delay their competitors’ approved developments, rather than for any demonstrated concern about potential environmental or other planning harm. By the time of the hearing of this appeal, as is often the case, the approved scheme in issue is clearly of a piece with—”

what was already there. So, the danger of judicial review as a means of trying to damage competitors was recognised. My noble friend Lord Horam has given a number of cases in which that has actually taken place. That warning was given a considerable time ago and I am delighted to hear that now—this is a fairly recent development—there is a Divisional Court in the High Court with expertise in planning able to deal with planning applications very speedily indeed. That is highly desirable.

The other thing I want to mention is that, when I was first in practice, we did not particularly think that we were not under the rule of law, although there was no judicial review. Another aspect of the law which was quite important was that there were finality clauses in most Acts of Parliament making the decision of the Minister or the authority final and unable to be upset by any judicial procedure. That was a fundamental protection for the Executive, for local authorities and so on—all sorts of bodies had that kind of protection. The Foreign Compensation Commission happened to be the one selected for trial and in Anisminic v Foreign Compensation Commission the judges found the way around this finality clause in such a way that these finality clauses have ultimately disappeared. Therefore, the scope for judicial review is very much greater than for the prerogative writs that were in position originally.

I was involved in one of the early cases on development of judicial review in respect of the standing of, or the right to bring, such a case. Certainly, there is an interesting issue in relation to some of the clauses in this part of the Bill about forming private companies simply for the purpose of promoting a particular judicial review in the hope of protecting perhaps fairly wealthy, not in any way impecunious, people from the possibility of costs. That is a development in relation to judicial review which I think requires consideration.