Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Judicial Review and Courts Bill (First sitting)
Andy Slaughter Excerpts
The Chair
Before we hear from the witnesses, please may I have any declarations of interest in connection with the Bill?
The Chair
We will now hear from the first panel. We have three witnesses, all are appearing virtually. I thank you all for attending today’s evidence session. We will hear from Sir Stephen Laws QC, senior research fellow at the Policy Exchange and former First Parliamentary Counsel; Professor Jason Varuhas, from the University of Melbourne; and Professor Richard Ekins, from the University of Oxford.
Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters in the scope of the Bill. We must stick to the timings in the programme motion that the Committee has agreed. We have until 10.25 am for this session, which gives us just under an hour. Could the witnesses please introduce themselves?
Sir Stephen Laws: My name is Sir Stephen Laws. I spent my career in the Office of the Parliamentary Counsel, starting in 1976. From 2006 until 2012 I was the First Parliamentary Counsel, head of the office and responsible for the offices of the Government business managers. Since retirement, I have been a senior research fellow at the judicial power project at the Policy Exchange.
Professor Varuhas: Good morning, I am Jason Varuhas. I am a professor of law at the University of Melbourne, where I am also the director for the Centre for Comparative Constitutional Studies in the law school. My interests lie in public law, private law and the law of remedies.
Professor Ekins: I am from the University of Oxford. I have led Policy Exchange’s judicial power project for the last few years and have written a fair bit about cases involving judicial review that warrant criticism or are problematic. I have made submissions, as have my colleagues, to the independent review of administrative law and in response to the Government consultation, and most recently another paper for Policy Exchange outlining possible amendments that might be made to the Bill.
The Chair
Sir Stephen, do you want to come back in, because you were cut short by the sound? [Interruption.] We are still having sound issues, so we will try to come back to you later. I do not know whether it is a technical issue at your end or this end. Sorry about that, Sir Stephen. In the meantime, I will take a question from Andy Slaughter.
Andy Slaughter
Q Good morning, gentlemen. I think this is supposed to be a more general session on judicial review, although we also have one eye on what is in the Bill. Lord Faulks, the chair of the independent review, said in this report that,
“overall, the way that judicial review worked was satisfactory”
and that
“any decision to do something about it radically would…be wrong and potentially contrary to the rule of law.”
From some of the answers you have already given, it sounds as though you may not entirely agree with that. Where do you differ from Lord Faulks, if at all? On the contrary view, how do you think judicial review can help to improve decision making by public bodies?
The Chair
Can I ask who that is directed to first, Andy?
The Chair
Who wants to take that question?
Professor Ekins: I will go first, and then my colleagues can take a turn. I am always happiest when agreeing with Lord Faulks, and I am certainly not willing to propose a radical overhaul of judicial review. It is a central institution of our constitution and there would be dangers in trying to put it entirely on a statutory basis—a course of action that has been thought through but that I think would be fraught with difficulty.
The question is whether it has gone too far in some domains and in some directions, and that conclusion is entirely compatible with the idea that you do not want to overhaul it at large and that no radical reform is necessary. A correction could be made in certain cases, where judicial review is extended into the heart of the political constitution, as you saw in the Prorogation case, which I know Lord Faulks was much exercised about and was highly critical of, and in other cases, where the techniques involved—we have talked about some of them already—are difficult to square with parliamentary sovereignty and the primacy of Government decision making in relation to the public interest, and where, rather than a supervisory jurisdiction being in play, one has intrusion into the merits.
One can make some significant corrections on the margins—if you call it the margins—without undermining the central value of judicial review. In relation to its value, Ministers should clearly be subject to the law; they should not exceed the scope of their statutory powers, or go beyond the scope of prerogative powers for that matter. The courts have a vital role to play in vindicating those legal limits and in correcting deficiencies in process, where decision making might have flouted the requirements of natural justice or an extremist has simply made an irrational decision, although one would expect that to be less common. So there is undoubtedly a very valuable role for judicial review to play, but that is consistent with noting—as so some senior and retired judges—that what has gone on in some significant, major, politically salient cases is unjustifiable and warrants a legislative response.
Andy Slaughter
Q Can I follow up on that before the other witnesses come in? Are you saying that, if any amendment is needed, the correct response would be a sort of tit-for-tat response—that is, responding to individual judgments rather than something more systemic? You said that
“the Bill’s measures are a carefully considered, limited response to two important Supreme Court judgments.”
Some of the things that the Lord Chancellor has said in the context of human rights have implied the same thing—that, effectively, there will be a second-guessing or a corrective effect on judgments of the superior courts. Is that how you see this working?
Professor Ekins: In part. With respect, I would not say tit for tat, but judgments that put the law in doubt in significant ways, or break new ground in ways that are constitutionally problematic, deserve a response to correct the law. It is not a response to dress down the judges; it is to restore or make the law to that which Parliament wishes it to be. I think that much good can be done by a systematic response to cases where the law has been changed in difficult ways. That would be the central mode of action.
There is a sense sometimes, though, that one should respond to grounds of action. For example, a legislative response to the Adams case—I have drafted a possible response—would not necessarily, and does not, mention that case by name, but it restates the Carltona principle. It makes it clear that the Carltona principle has a central place in our law and constitution—so, partly just a general change but motivated by cases where this has been put in doubt.
Andy Slaughter
Q I have seen the paper you have written on that. It does appear to imply a sort of ping-pong effect, where you see what the courts do one day and we here do it another day. Obviously, it would be easier if the Government were able to do that by statutory instrument, but it seems like quite a radical departure from the way that we do things normally.
Professor Ekins: With respect, I do not think that it is a radical departure. I think that legislative responses to judgments that put the law in a different place were, maybe not routine, but they are certainly unimpeachable constitutionally. In a sense, this is an opportunity, and it was built to look back across several decades of legal development, or at the least the last decade or two, and make some changes that are worth making in this context. Whether power should be used by statutory instrument, I would be much less comfortable with, in so far as some of the changes we are talking about involve the meaning and application of a judgment.
Andy Slaughter
Q Yes, that is the point. We have all been involved in emergency legislation from time to time. It is relatively rare, and it is something of an occasion, so in that sense it marks things out. The danger would be if that were to become routine and there was effectively an office of Government that is there to be corrective of the courts when Governments get it wrong.
Professor Ekins: I would not ever mention that it needs to be emergency legislation. Sometimes it will have to be, as was the case after the Adams case, where legislation was moved from within a matter of weeks to a number of days, but much more often, we simply need to pay attention and be willing to bring forward legislation in response. Obviously, legislative time is scarce, so that will always be difficult to prioritise, but noting when the law of judicial review has been developed in startling ways that really are not justified in responding is a significant exercise of Parliament’s responsibility.
The Chair
Does any other panel member want to come in to respond to Andy Slaughter’s question? Sir Stephen, have we got you back yet?
Sir Stephen Laws: I think so; I apologise. I think I detected a problem at this end. There are some systematic approaches that need to be adopted. I think it is right that Parliament should retain its ability to react to individual cases, but that is difficult because time is short and, quite often, by the time the courts have set the framework, they have intervened, in a way, in the political argument.
I would like to come back to the point I was trying to make when I was muted. There are distinctions between intervention by judicial review in casework and intervention by judicial review in legislative actions, because the remedies and principles that are applied to legislative actions are themselves legislative. If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function. The systematic approach needs to distinguish more clearly between judicial review of legislative actions and system management issues, and judicial review of casework.
Professor Varuhas: Obviously, there are many cases in the judicial review casework of the courts that raise no problems whatsoever, but the IRAL report identified some problematic areas where there were patterns where courts were potentially exceeding the institutional and constitutional limits of their role. It was acknowledged in the conclusion to the IRAL report that there were some instances where the Supreme Court had exceeded the supervisory conception of review. It is also important to note that IRAL acknowledged very clearly that it was legitimate for Parliament to legislate in the field of judicial review, including the response to particular judgments. I note that the modern machinery of judicial review was established by legislative instruments and statute, particularly the Senior Courts Act 1981. The entire modern machinery of review is owed to legislation.
A number of problematic areas have already been mentioned by my colleagues. One is that the courts have turned from scrutinising individual decisions to scrutinising and evaluating entire administrative systems and invalidating them, without an acknowledgement that the courts lack expertise and experience in the field of design of large administrative systems.
Another area is in proportionality—where the courts strike a balance between competing considerations. That tends to supplant the role of the statutory decision maker, whose role is to weigh up all those considerations. Then there are the areas we have already mentioned, where the court has taken upon itself to speak for the polity in articulating constitutional values. One would expect that is a role for Parliament first and foremost. Also, there is where the courts have used those values to interpret legislation in the light of the concerns they consider normative appealing, rather than necessarily to give effect to the legislative intention that sits behind legislation.
What the IRAL process showed is that it can be very difficult to legislate as to the substance of judicial review at an abstract level, but what can be done is that responses can be made to particular judgments. There are plenty of examples through history where Parliament has done so. Also, the rules governing the procedure and remedies of review have always been housed in the Senior Courts Act—they are the product of Parliament; Parliament has updated and amended those procedures and remedies over time. This latest batch of reforms, particularly the remedial reforms, can be seen as a further incremental development of the remedial system.
Remedies can be important, because they can provide an outlet for wider concerns, such as the public interest or interest in good administration, and they can provide a way to modulate the boundaries of review, to ensure that it does not stray beyond ordinary practicalities and infringe upon fundamental principles. Again, I think that is entirely legitimate and there are many examples of Parliament legislating as to remedies.
Andy Slaughter
Q You are talking on a fairly high level here—I think Professor Ekins mentioned “heart of the constitution” cases, which are obviously very sexy to talk about—whereas most of the submissions we have had are from non-governmental organisations, environmental groups or people dealing with special educational needs, who are concerned that some of the provisions in the Bill may limit the opportunity because either a suspended or a prospective-only order will mean that, for some reason or other, they are unable to get their case before the court. Are you sympathetic to that at all?
Professor Varuhas: These remedies will not prevent anyone from getting in the court door, because they are remedies, which apply after a finding of unlawfulness has been found by a court. I think these remedies are welcome, because they provide for a greater remedial flexibility for courts—for courts to tailor remedies in their discretion, to the exigencies of the particular facts of the case. It is important to bear in mind that these remedies will be discretionary and the courts will take into account a range of relevant considerations in exercising that discretion. Courts are well versed in exercising remedial discretion—courts can be expected to respond to the justice of the particular case. What the Bill does is to give the courts more options.
The most common consequence of a finding of unlawfulness is that the impugned administrative measure is a nullity, which means it never existed. That will suffice in many cases, but in some cases it will be an overly blunt measure that can have very drastic effects. For example, a large infrastructure project may be started and there might be a slight technical or procedural error at the outset.
If the project proceeds and is then nullified as if it never existed, that will have very negative effects on the people who had contracted with the Government and, by being critically disruptive, on the national economic interest, and could lead to significant economic waste. In that sort of case, a suspended order allowing the Government time to respond to the finding of unlawfulness and make relevant provisions to accommodate that finding, or a prospective order that holds that what has gone before remains good and that the nullification takes effect only prospectively, can play an important role in protecting very important public interests, interests of good administration and the interests of third parties who might interact with Government.
Indeed, if something like a large infrastructure project were invalidated, it could undermine the confidence of market players in contracting or working with Government, because the rug could be pulled out from the project at some later point once a lot of money and time has been sunk into it. I think these are very moderate reforms seeking to give the courts greater remedial flexibility to tailor remedial responses to the particular context of the case, in the light of the range of interests implicated.
Sir Stephen Laws: I am sympathetic to people who have a view about what remedies should be granted to litigants in the case in question, but I am not sympathetic to the idea that judicial review should be an extra step in the political debate about whether a piece of legislation should exist or continue to exist. The Unison case provides a startling example of the sort of absurd consequence that you would get from the nullity remedy.
In that case, the courts overturned fees to be charged to people who wanted to take their employment cases to hearing. The result of nullifying the regulations involved a very large amount of money being paid not to the people who were deterred from bringing their cases to employment tribunals, but either to the people who did bring them and lost, or to employers in those litigations who lost and had to pay the fees of the people who had been successful. That was a ridiculous remedy for a mischief that harmed people other than those who got their money back.
Professor Ekins: I agree with my colleagues that clause 1 increases remedial discretion and focuses it to some extent, although one can argue about how it does that. Much of the response to these two clauses has been overstated.
We have not yet spoken about clause 2 and the limitation of review of the relevant decisions of the upper tribunal. Again, that has been a bit misunderstood or framed and received by some groups as though it were an abolition of judicial review at large in some way, but I think it is a restatement of the law that Parliament tried to create in 2007 in the relevant legislation. The Supreme Court sort of glossed that in 2011, and many senior judges have been unhappy with the way that it was decided then and the way it was worked out subsequently.
In limiting review in the way that clause 2 does—with plenty of safeguards, I should add—one is not barring the door to the courtroom, but bringing an end to an otherwise never-ending series of procedural steps. Looking into it, one can always find a benefit from further procedural steps, but it is a perfectly reasonable and proportionate response to limit judicial review in that context, where the decision maker in question is another court. It is not a Minister detaining someone, or something like that; it is the upper tribunal, and as a court, it warrants an immunity from judicial review in that context. People should be much more relaxed than some have been about those two measures.
Andy Slaughter
Q I have just one more question on clause 2, although not on Cart per se. You will be aware, because it has been quoted quite widely, that the press release that accompanied the introduction of the Bill stated that
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
That appears to signal an intent on the Government’s part to use the ouster more commonly in future. Is that how you read it? Do you think that that is a good or bad way of going about things?
The Chair
Who wants to take that one first?
Professor Ekins: I will, since I was talking about Cart just now.
It is true that they have signalled that. I think that this will be an effective ouster clause because it is a perfectly constitutionally irreproachable response to the Supreme Court’s judgment. It restates Parliament’s intention and is protecting a court’s jurisdiction—not an ordinary court’s, but a specialist court’s, albeit one with pretty wide jurisdiction.
I think that it will work as an ouster clause. I do not think that the courts will view it with disdain or try to undercut it as they have done with some other ouster clauses. To that extent, it will provide a framework, partly because it is limited: it is designed to limit judicial review without ousting it altogether. It is a safeguard in relation to true procedural failure, bad faith and so on, which is fine and proper.
I think that it could be used as a framework for other cases. In the Policy Exchange paper that I published last week, I suggested one such context: the Investigatory Powers Tribunal, another specialist court, which was subject to the protection of an ouster clause enacted in 2000, as David Davis mentioned in his Guardian article last week. That ouster clause was undercut by the Supreme Court in 2019, using some of the problematic techniques that we have talked about—openly departing from legislative intent and distorting the meaning of the statute.
I think that Parliament should enact an ouster clause, modelled on clause 2, that protects the Investigatory Powers Tribunal. There will be pretty sharp limits on how often you want to use the clauses, of course—this one is controversial, and they will all be controversial. Whenever there is a suggestion that there is not a proper context for ouster, the controversy will be higher.
We have talked before about intrusions that judicial review has made on some relationships at the heart of the political constitution. There is a case to be made for ouster, or for limitation of review, in that context. You will be aware of the Dissolution and Calling of Parliament Bill, which is making its way through Parliament now. Clause 3 of that Bill is a partial response to the Prorogation judgment, and quite rightly so; it protects the prerogative of Dissolution, when it is restored, from judicial review. I think that that is justified and that you may have to act similarly in relation to Prorogation law on other aspects of the political constitution.
I would not expect the approach to be widely used, but I think that there are contexts in which it is reasonable and justified.
Sir Stephen Laws: I agree with all of that. As a drafter of legislation, whenever I was asked to draft an ouster clause, as I was from time to time, my response was always: “There’s no hope of it ever succeeding, unless you’re presenting a politically and legally justifiable alternative route for people who would otherwise be going to the court.” That, of course, is what the Cart judgment does, for the reasons that Professor Ekins has given: the upper tribunal is a proper court; the Investigatory Powers Tribunal is a proper remedy; and, in the case of the Prorogation judgment, the remedy is political because that is how the constitution is set up. In relation to the major matters of the relationship between Parliament and Government, it is Parliament that has the remedy, ultimately, in being able to pass a vote of no confidence in the Government and require their resignation or a general election.
Professor Varuhas: On clause 2, the first thing that I would say is that it derives from a clear recommendation from the expert independent review of administrative law and has subsequently been subject to a full Government consultation. Former Law Lords have also come out in support of the policy, including Lord Hope, who is the former Deputy President of the Supreme Court, and Lord Carnwath, who—importantly—was the inaugural Senior President of Tribunals and was subsequently a Law Lord on the Supreme Court. He said that the ouster would restore what was always intended: that the upper tribunal should have equal status with the High Court. That was the intention behind its designation as a superior court of record. As colleagues have stressed, that is a really important point: the upper tribunal has equivalent status to the High Court.
There is a further point to be made, which relates to how many bites of the cherry one person might have. It is worth reminding ourselves what a Cart judicial review is. It will have been a claim in the first-tier tribunal that will have been unsuccessful. The claimant will then seek permission to appeal to the upper tribunal. The first-tier tribunal will decline permission, and then the claimant will appeal to the upper tribunal against the declination of permission to appeal to the upper tribunal. The upper tribunal will have declined permission to appeal. It is not clear, given the upper tribunal’s status as a superior court of record, that one then needs a further bite of the cherry by going to the High Court via judicial review, and potentially all the way up the judicial hierarchy.
Whatever the case is more generally, in this instance the clause is justified, and it is a targeted response to a particular problem. Also it is not a pure ouster, because in clause 2(4) the path remains open for claimants to bring a judicial review in the High Court in serious instances of illegality, such as where the upper tribunal acts in bad faith or in fundamental breach of principles of natural justice. That is an important point to bear in mind: there is still a route to the High Court in cases of serious unlawfulness.
Dr Johnson
Q Just to be clear, it is the equivalent of the High Court but it is not treated as such.
Dr Morgan: More or less. I think Lord Justice Laws called it the alter ego of the High Court, but that is not quite the same thing.
Andy Slaughter
Q May I clarify whether, at present, a judge can make a quashing order limiting or eliminating its retrospective effects, or suspend the effect of a quashing order? There has been some debate around that, given the proposals in the Bill.
Dr Morgan: I wrote an article about that in 2019 before IRAL was even thought of. It is not like me to be ahead of the trend. In it, I analysed in particular the Supreme Court’s decision in Ahmed and others v. HM Treasury—the freezing orders case. Ahmed causes enough doubt on the question that legislating to put it beyond question is a worthwhile use of Parliament’s time. There are some precedents the other way—in a case called Liberty, the divisional court suspended a declaration—but on quashing orders, the reasoning of the Supreme Court in Ahmed (No. 2) suggests that it is just not possible to suspend a quashing order. In my view, that is unfortunate, because judicial review remedies are in every other respect discretionary, so why not here? In the debate on IRAL in the House of Lords, Lord Hope said that he was dismayed to be in a “minority of one” when he dissented in Ahmed on postponing it. He certainly approves of clause 1. It is at least a doubtful point, and sufficiently doubtful that the legislation is worth it.
Andy Slaughter
Q You are saying there are two separate issues: whether it is a sensible proviso, and whether there is certainty at the moment.
Dr Morgan: Yes. My position is that it is a sensible remedy, and at the moment, it is certainly not clear whether the courts can do it. Clause 1 will, beneficially, clarify that.
Andy Slaughter
But a court might attempt to impose—
Dr Morgan: For a court below the Supreme Court, the obvious precedent that the applicant would cite would be Ahmed, and it would be very hard for a lower court to get round that, I think.
The Chair
Q I see Professor Feldman nodding his head. Do you want to comment on that point?
Professor Feldman: I think that is completely right. There is a big distinction between quashing orders and declarations for this purpose. What Ahmed (No. 2) did was to eliminate the difference—a quashing order quashes, whereas a declaration can only declare that a body has a duty or has breached a duty or has not breached a duty, and that is something that is not limited as to time. I also agree with Dr Morgan as to the effect of Ahmed (No. 2) on lower courts. However, I think there is a big distinction to be drawn between the suspending of a quashing order where, as the Bill says, the retrospective impact remains when the quashing order eventually takes effect, and a prospective-only order, which seems to me to raise significantly more problems of principle and of practice.
Andy Slaughter
Q Clause 1 gives the courts a discretionary power to grant a full remedy to a claimant, but to limit the retrospective effects of the judgment for any other individual who has not issued a claim before the date of judgment. Is that right? If so, are you concerned that it could lead to unjust outcomes for those already impacted by unlawful decisions?
Professor Feldman: One of the difficulties of having a prospective-only remedy is that it is only prospective, and by definition a remedy of this kind would take effect only if the court had already decided that the claimant had been treated unlawfully. To say to a claimant, “This is going to be prospective only” strongly implies it is not going to protect the claimant himself or herself. Some way would have to be found of protecting the claimant, and other people in the position of the claimant, if one did not want to be stuck in the position of saying, “These people were treated unlawfully, but they are not going to have a remedy.”
In clause 1, there is nothing that makes it explicitly clear that a court could say, “I am going to give you a prospective-only remedy, except that it would be retrospective for the purpose of protecting you.” The court might be able to do that, but then you also have the problem of other people in the same position as the claimant—all those people would have been treated unlawfully. It seems strange to me that they should have to suffer unlawfully because the remedy is only prospective.
The language of clause 1, under which proposed new section 29A(4) of the Senior Courts Act 1981 would state,
“if the impugned act is…upheld”
is very odd. Subsection (5) says,
“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
That makes it quite difficult to see why one should give a remedy to people who are deemed in that case not to have suffered a legal wrong.
I think it is quite a problem, unless the clause is amended to expressly allow a judge to give a remedy to someone who has obtained a prospective-only order, despite the fact that the law and treatment were to be treated as entirely lawful.
The Chair
Have you finished, Professor Feldman?
Professor Feldman: Yes, thank you.
The Chair
Dr Morgan.
Dr Morgan: I agree with what David Feldman said, but perhaps I could suggest a solution. This is an amendment that should be made to clause 1. Proposed new section 29A(2) to the Senior Courts Act 1981 says that the order
“may be made subject to conditions.”
I think the court should have the power to set as a condition of making a prospective-only order or suspending the order that compensation should be paid to the particular applicant. In my view, that would be a way of squaring the circle of postponing the effect of quashing an entire piece of legislation—saying that is not going to happen today, but is going to happen in six months’ time to give the Government time to prepare.
Of course, that would work great injustice on a successful particular applicant who has paid to take their case to court, has won and then does not get any redress at all. However, if the court were empowered to grant compensation, that could be a way of achieving both those things. I am a public lawyer, but I also teach contract and property law. If you get an injunction in a tort case, the court might suspend the injunction for a period of time and, if it does so, it will give compensation during the period of suspension. It is on that sort of model that I think this could work.
You could argue that while proposed new section 29A(2) says orders
“may be made subject to conditions”,
the explanatory notes say that those could be any conditions the court likes. However, given that the courts cannot award compensation for public law wrongs, it is very doubtful whether that implicitly contains a power to award compensation. I think that proposed new section 29A(2) should be amended to say that orders may be “made subject to conditions including, if the court sees fit, compensation.” That might be a way of reconciling those competing objectives.
Andy Slaughter
Q Do I take that to mean that the way the proposed new section is drafted could dissuade individuals from initiating judicial review proceedings, because they may not obtain a remedy?
Dr Morgan: Yes. That point was made by many Members on Second Reading. It could be a real problem, in particular if it became the norm and the court ordinarily postponed orders. In my view, the court should not ordinarily do that; it should be in exceptional cases only. That takes us on to the presumption in subsection (9) —but perhaps we will come back to that at a separate point. There are two problems with it: first, the presumption; secondly, the absence of a compensation power.
Professor Feldman: May I add two things to what Dr Morgan has said? I agree with what he says in principle.
First, the compensation remedy may not be useful to all claimants. If one is about to be deported as a result of having one’s unlawful decision treated as lawful, for example, compensation is unlikely to be an effective and adequate remedy. There are lots of other types of administrative wrong that lead to people suffering loss or injury that cannot readily be financially compensated.
Secondly, if one is going to compensate, one has to consider all the other people who have been treated unlawfully, who are in a similar position to the claimant, but who are not before the court, so the court cannot order compensation for them. Perhaps one needs to consider whether a court should be empowered to require the provision of a compensation scheme for all those in a similar position to the claimant. That could be a lawful step.
It is also true, as Dr Morgan said, that the administrative law of the English system does not treat financial compensation as a readily available remedy. Therefore, some express permission would have to be made to allow the courts to do it.
Andy Slaughter
Q I do have one other question on ouster but, Dr Morgan, just before we leave clause 1, you mentioned a presumption. Do I take it from what you have said already that you are concerned about that provision in clause 1? Is that because of the way that it is drafted, or because of the inclusion of a presumption per se, in this context?
Dr Morgan: I would take the presumption out altogether. I think what this clause is doing—certainly what it should be doing—is enlarging the power of the courts to tailor relief in a way that they see fit, and removing the obstacle that the Supreme Court laid in their path in Ahmed v. HM Treasury (No. 2). Thus, I just do not see why it is there. The Government say that it is to encourage the courts to use this remedy, but I do not see why we should try and push the courts in a particular direction.
I also think, if subsection (9) is taken out, subsection (8) could be taken out as well. At the moment there is a need to try and direct the court what to take into account; the drafting is already getting very complicated. I think that probably everyone who has written you a paper has suggested more paragraphs that could be put in subsection (8); I think it is going to end up very long indeed. We are talking here about High Court judges; it is very senior judges who will be making these decisions, and in my view, they can simply be trusted to make the appropriate decision based on the facts. That is my first point—I would take it out.
If we are going to keep it in, it is virtually doing nothing at all. I think the courts will be very reluctant to find that there is an adequate redress, because they will say, “The claimant is not going to get anything, so that is not adequate redress.” I think if the court does find that it is satisfied, they will say, “There is a good reason to make the quashing order immediate and retrospective, because that is what we ordinarily do. It is important to do that to keep the Government within the limits of its powers.” I think that subsection (9) is not going to do anything other than generate needless litigation about this; it will become a question that has to be considered in every case, whether it is really relevant to the facts or not. Therefore, I suggest that subsection (9) should go.
Andy Slaughter
Professor Feldman, do you agree with that?
Professor Feldman: I do. Subsections (8) and (9) have twin disadvantages. First, they try to create a presumption that something will happen regularly, when we know that it will not, for the reasons that Dr Morgan has given. Secondly, they are unnecessary because the courts are quite capable of making judgements for themselves. Look at subsection (8)(f):
“any other matter that appears to the court to be relevant.”
This opens up the field very nicely; I do not see anything there that is necessary.
Andy Slaughter
Q Finally, I will ask the same question that I asked the previous panel about ouster, and the Government’s comment in a press release that the
“text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
Do you think that is a sensible way to go about legislating?
Professor Feldman: Is that for me?
Andy Slaughter
For either, or both.
Professor Feldman: I will start then, if I may. I think there is a real difficulty about a provision of this kind being used as a template, because there are two questions that arise. First, is this a situation in which it is justifiable to exclude the High Court supervisory jurisdiction? Secondly, have we drafted a provision that will work and have that effect?
In relation to the first, I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law.
I approach this by asking whether this sort of exclusion of review is justifiable. On balance, I think it is, for a combination of reasons. First, because it excludes review of judicial bodies, not of administrative or executive agencies. Secondly, because the number of people who will suffer, although we can never be quite sure, looks as if it will be relatively small compared with the number of people who would suffer generally if we cut off all judicial review. Somewhere around 3.4% of these cases end up being successful, the Government estimate, compared with 30% to 50% in most other judicial review situations. Bearing in mind the need to use judicial time as efficiently as possible, it may be that this is not a proportionate use of judicial time, in which case one might say—although I say this with great disquiet—that the ouster is justified.
Does it work? Yes, I think it does, for roughly those reasons. Courts will not kick against it, given that the claimant will have had two bites at the cherry already before a judicial tribunal. Is it a template? I am not sure that it will be either necessary or perhaps effective to use this sort of thing in situations in which someone is getting review of other types of decision by other types of agency in different circumstances. For example, I note that in another Bill before the House, the Dissolution and Calling of Parliament Bill, there is an attempt to exclude judicial review of decisions concerned with Dissolution of Parliament and purported decisions. Clause 3 of that Bill does not go into any such elaborate provision as are provided here. Presumably, the drafter of that considers that it will work, because of the nature of the decision that is being considered.
Dr Morgan: My position—
The Chair
Very quickly, because four more people want to ask questions. We are running on time.
Dr Morgan: Very briefly, I broadly agree. I think this will work for Cart. I think the Government are mistaken to see it as any kind of template, and that they can put exactly the same words into another Bill about some other different matter and that it will work, because it is not only about the words that Parliament uses but the entire context. Sir Stephen Laws, himself a parliamentary draftsman, made just that point—that it is not only the literal meaning of the words but the whole context. That is why it will work in Cart, but it may not work in another statute, even if precisely the same words were used. I would not see it as a template or model.