Queen’s Speech

Lord Thomas of Gresford Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, the noble and learned Lords, Lord Woolf and Lord Hope, quoted the Government’s expressed desire to

“restore the balance … between the executive, legislature and the courts.”

It is also a pleasure to follow the noble Lord, Lord Faulks, with whom I largely agree on this topic. It is misleading to talk in terms of balance rather than of function. In our constitution, the legislature makes the laws, the courts interpret and apply them in specific situations and, in theory, the Government obey them. The problem arises when the Government do not wish to obey the laws that Parliament or the common law have created and seek to reject courts’ interpretation of them.

It is not a question of balance. In a judicial review, the scales of justice do not weigh the interests of the Executive against the strictures of the law. The concept of the scales of justice in a court setting is that, where an individual or organisation seeks judicial review of a government decision, the judge’s duty is to apply the law without favour to either side. If the Government’s purpose in introducing a judicial review Bill is to carry out the recommendations of the committee of the noble Lord, Lord Faulks, it will be unexceptional. No doubt we can argue about the details of the two main areas he recommends. If, on the other hand, the Government pursue the aims outlined in the Lord Chancellor’s statement setting out the further consultation to make areas of policy non-judiciable, that is an entirely different matter. The noble Lord’s committee would not support it, as he has made abundantly clear.

Ouster clauses are not effective because the courts assume that Parliament does not intend to give licence to a Government or to a Minister to break the law. Mr Brandon Lewis, the Secretary of State for Northern Ireland, attempted to introduce clauses that expressly involved the Government in illegality by breaking the Northern Ireland protocol. This episode demonstrated that Parliament will not stand for it. The attempt was defeated overwhelmingly by all parties, including former Prime Minister Theresa May and responsible and experienced Members on the Government Benches in this House.

I suppose it would be possible for the Government to introduce into a Bill or statutory instrument a clause that reads, “On questions of policy, a Minister can do what he likes”—or, to put it rather more formally, “A decision by a Minister under this Act shall not be set aside or voided by reason of illegality”. I very much doubt whether such a clause in its naked simplicity would get past a competent Attorney-General, never mind Parliament itself.

The Government can huff and puff when they lose a case, but that does not change the reality that they function within the rule of law as interpreted by the courts. As for the courts themselves, their decision in a particular case may have implications for the policy that the Executive wish to implement, but it is well understood that the system of judicial review does not permit a judge to substitute his own views or his own decision on the issue. All he or she can do is quash the decision that has been made and invite the decision-maker to think again. As for ousting the jurisdiction of the court, you can sum it up in seven words: “If it is illegal, it is justiciable.”