Independent Review of Administrative Law Update

Lord Woolf Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, on the first point, the words used by the Lord Chancellor are straightforward; I do not think they need any glossing from me. On the second point and as to trust in the judicial review process, it is important that the process does two things. It enables Governments to govern; equally, it enables them to govern well. Judicial review is important for Governments because it makes sure that they govern well, and within the law. That is why we are particularly focused not only on the recommendations of the panel; we want to go to consultation on other matters as well.

On the last point, as to prospective remedies, with great respect, the noble Lord is simplifying what is a more complex matter. It is far from the case that a prospective remedy gives no remedy to the particular litigant in that case. It all depends on how the prospective remedy is furnished and how people affected by the decision can be compensated or otherwise dealt with during the intervening period. That is precisely why we want to go out to consultation: because the current cliff edge of either no remedy or a remedy ab initio, and a quashing from the moment of the decision, leads to unfortunate consequences. That is as the panel has said, as the Government have responded, and indeed, as the noble and learned Lord, Lord Hope of Craighead, explained in his minority judgment in Ahmed.

[Lord Woolf (CB) [V]]

My Lords, like others, I congratulate the Faulks committee on the work it has done and the circumstances in which it did it. I also indicate that there is at least merit in considering further the two matters which the Government propose to act upon. However, I ask the Government to bear in mind that judicial review has, so far, been very much a process which has evolved. It is most important that it is underpinned by discretion in the judges to see how it is applied. I feel that there will be room for improvements to be made. I welcome in particular the proposal that that should be done in certain instances with the assistance of the Civil Procedure Rule Committee, which has great experience in these matters. There is a lot to be careful about in what was contained in the announcement of the response by the Lord Chancellor. But all these matters can be carefully considered and I propose at this stage to say no more.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the comments of the noble and learned Lord, particularly for his support on the two matters he first mentioned. Respectfully, he is certainly right that a number of the suggested procedural reforms would have to go through the Civil Procedure Rule Committee. He made the point that judicial review has evolved over time, and so it has. But, in that context, he may like to see that in the Lord Chancellor’s introduction to the Government’s response, he makes the point in paragraph 6 that an iterative approach to reform is most appropriate. That perhaps chimes with the point which the noble and learned Lord was making about judicial review being a process, and an iterative process at that. Reform will also be iterative.