Judicial Review and Courts Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

I apologise for getting things into a state of confusion—or nearly—by thinking that Amendment 3 was to be moved.

[Baroness Chakrabarti (Lab)]

My Lords, I will take the opportunity to jump in briefly at this stage, even though the first three groups to some extent cover similar territory. I know that in the next group we will get into the presumption in particular.

I speak now having had the considerable benefit of listening to the debate on the first group, which the Minister described as being about just giving an extra tool to the judicial toolbox, to be used where appropriate. I think that was the thrust of his remarks. That begs the question of whether it is just a tool in the box and what is and is not appropriate.

It seems that we are dealing with a judicial review of administrative action—of executive action. I know that the Minister said, “Calm down, dears, it’s not all about government as we would understand it; it is about all sorts of administrative action”. I am sure that is right. However, the principle is the same. This is executive action. Some of it is very significant for citizens’ lives and some of it less so. However, it is the job of the judiciary and Parliament, together in different ways, to hold executive action to account.

The traditional method has worked rather well. There are discretionary remedies for the judiciary and the power to legislate for Parliament, including, in extremis, to legislate retroactively. We do not like that, but if anybody is going to do it, it should be Parliament, because it is sovereign and has the democratic legitimacy to do so. That is the debate between my noble and learned friend Lord Falconer of Thornton and the noble Lord, Lord Pannick, on one side, and the Minister and his supporters on the other.

To that, I think the response comes from the Minister, “Actually, the new Section 29A(1)(b) is not doing what you think it’s going to do. This is just remedies; it is not about rewriting history and saying that the unlawful decision or subordinate legislation was always lawful. It is just about the effect of the quashing, not about changing history”. If that is the genuine intention of the Government with this provision, I respectfully suggest to the Minister that some clarification and comfort other than reassurances from the Dispatch Box may be required. That is to deal with the fact that we are not actually giving a retroactive legislative power —let alone duty, to which we will come—to the court.

Maybe, if I can be helpful, there is some room for explicit clarification to that effect. Having listened to the previous group, I too do not see the point of new Section 29A(1)(b) if this is just about giving extra tools to the judicial toolbox to use where appropriate. In all this I am mostly worried about the people not in the courtroom—the people who are not the litigants in the particular case but who rely on that particular judicial review, brought by one individual or a small group of individuals who had the means, either because they had personal means or the benefit of legal aid, which is not widely available these days. I am worried about anything that would shut out the possibility of good administration being provided for all the people—there could be hundreds or thousands or millions—who were not in the room and could then be shut out from justice because of something that it was not appropriate for the court to do. Why? The courts, unlike Parliament, are not best suited to polycentric decision-making. If there is to be emergency legislation because of a particular decision around illegality of regulations and so on, it is better dealt with in Parliament because Parliament will be able to look at all the potential cases in the round and will have the legitimacy to so act. The Government cannot have it both ways.

By the way, I agree with the noble Lord, Lord Faulks: Governments of all stripes get irritated with judicial review from time to time. However, whoever is in power, it is not for politicians to have it both ways and criticise judicial overreach on the one hand but then ask the judges to do their dirty work for them when they have been found to act unlawfully on the other.

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[Lord Faulks (Non-Afl)]

My Lords, I feel tempted to respond to the contribution of the noble Lord, Lord Beith. It is absolutely true that this particular form of words does not find its way into our report in any way. That, of course, does not necessarily mean that it is a mistake to include it in the Bill.

The noble Lord, Lord Anderson, gives a choice that is not very inviting: either this is a mere surplusage, in which case it should go, or it is potentially something that an inexperienced judge might get wrong or feel compelled by to make an order that he or she would not otherwise want to make. I wonder if that does not slightly overstate the case. I should say that I am not wholly convinced of its necessity, but I do not think it anything like as damaging as has been described.

After all, before you even get to the question of whether the court is to make a quashing order, a considerable number of hurdles have to be surmounted, as do a number of considerations which we have canvassed during the course of the debate. So, if the “interests of justice”, or whatever term that the judge directs himself or herself to, have allowed them to reach the conclusion that it is not appropriate to make a quashing order, this question of a presumption, whether it is a weak or a strong one, simply does not arise. Of course, the judge can also simply say, “Well, I take into account subsection (9), but I don’t see a good reason for making the order”, having regard to whatever it might be. I do not see it as quite the same hurdle race that the noble and learned Lord, Lord Hope, described it as.

I will listen carefully to the Minister on why it is in there. I do not think it particularly harmful, but there is, as it were, enough here to allow the judges to do what is fair without necessarily including this particular presumption.

[Baroness Chakrabarti (Lab)]

My Lords, I congratulate the noble Lord, Lord Anderson of Ipswich, on his Amendment 13. He rightly suspected that my Amendment 14 is a little more in the way of a probing amendment. I tabled it because of the concern I expressed earlier about the people not in the room when, by definition, a judicial review is brought by one party against a government department.

My Amendment 14 would be far less preferable to his Amendment 13 if we could clear up the problem with proposed subsection 29A(1)(b). As I said earlier, there is the question of whether that starts engaging the court with a more legislative function in deciding exactly who is and is not to benefit from the wider class of citizens not in the room.

So, we are back to the Minister’s saying that this is just about putting some extra discretionary tools in the judicial toolbox, to be used where appropriate. If that is the case and we could clear up the issue with paragraph (b), I would have no problem with allowing this extra tool, so that, in some cases, the quashing could not take effect until a future date, and the department could sort itself out and effect new regulations or, if necessary, even come to Parliament with emergency legislation. As a former government lawyer, I would have no problem with that possibility—but why all the rest of it?

On the one hand, the Minister talks about trusting the courts; on the other hand, we are all to be tied in knots with our various interpretations of all the various differently tilted tests that follow. That is probably the difference between me and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I say that because I have genuinely changed my mind about various aspects of this during Committee. If it is just a tool in the toolbox, make it an open-textured discretion that allows the suspended quashing order, and leave the rest to the court.

I shall make two further points. The noble Lord, Lord Anderson, made an essential point that is worth repeating: central government is a party to most judicial reviews and certainly the ones that are going to cause concern to the Government. So the Government can relax a little at this stage, knowing that any crucial arguments about the effect of particular discretionary remedies on wider public administration will be put by government lawyers to the court. Finally, the noble Lord, Lord Pannick, talked about the risk of litigation with an overly complex provision. That has to be taken seriously. I hope it will not be said in response that that amounts to a threat. That has been said to me in the past when I have suggested that a convoluted provision will lead to litigation. It is not a threat; it is based on experience of what happens when discretion is tied in knots in that way. Inevitably, that leads to more litigation, not less.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support the amendments put forward, for the reasons that have been given. I do not want to add to them. It seems odd to give judges discretion and say that we trust them, then immediately circumscribe what they can do.

That leads to my concern about new Section 29A(10). When listening to the Minister earlier, I asked myself why new Section 29A(8) was there because all the points are perfectly obvious. I wonder whether we are looking at a new technique here being laid down for future use. Do you list perfectly obvious things in new subsection (8) to bring in the killer in new subsection (10)? I hope the Minister can assure us that we are not going to see in any future legislation dealing with judicial review—who knows whether there will be any—the codification of perfectly obvious principles as a means of bringing in by the back door what one sees here in new subsection (10).

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[Lord Wolfson of Tredegar (Con)]

I think I replied to that point in the previous group. The interests of justice test is subsumed here because you can use these remedies only where there is no good reason not to do so; in other words, if there is a good reason not to do so, you cannot use the remedies. Therefore, necessarily, every time you are considering whether to use the remedies, it is in the interests of justice to do so.

If I may repackage the noble and learned Lord’s question, it really is: why not just say, “in the interests of justice”, or have a freestanding discretion? That point was put by a number of members of the Committee and gets me back to my point that we want jurisprudence to develop, and we want the court positively to consider these remedies. This is not least because there could be cases—the music copyright case is one—where these remedies would be very helpful to third parties, while the instant parties to the case may not be too bothered whether they are used or not.

[Baroness Chakrabarti (Lab)]

Does the Minister understand that his comments about third parties are now making me feel more nervous again about proposed new section 29A(1)(b)? We are effectively opening the door to judicial legislation in relation to immunising the Secretary of State from further challenges by a whole class of people who are not currently in the court; we are therefore doing the legislative thing in removing or limiting any retrospective effect of the quashing, as opposed to just delaying the quashing for the future.

[Lord Wolfson of Tredegar (Con)]

With respect, no. The noble Baroness is looking at this in a very negative way. The whole point about the music copyright case was that the prospective-only remedy was there to protect people who have relied on the regulations. One must not look at these cases with the view that you have all these people out there with claims against the Government and the prospective-only remedy insulates the Government from all these other claims. There are lots of cases where a local authority, or the Government, or some other public body has made a decision and people have relied on it. Businesses have been set up, people have taken out bank loans and made investments. In those cases, I ask rhetorically, should all those third-party interests be disregarded merely because in the case of the claimant bringing the judicial review, his bank loan has not been drawn down yet, so he does not mind whether they are upheld, so to speak, prospectively or retrospectively?

As the noble and learned Lord, Lord Hope, said in the very first debate, there is a wide gamut of cases that come before the courts, and we have to give remedial flexibility; that is what all of this is seeking to do.

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and linking “adequate redress” to the relevant defect—the noble Baroness will have picked up that it is not “adequate redress” in relation to the claimant or the parties before the court but in relation to the relevant defect—further emphasises that the imperative is for remedies to be practical and suited to the circumstances, including those of third parties, and not arbitrarily constrained—

[Baroness Chakrabarti (Lab)]

I am hugely and genuinely grateful to the Minister for that, because it cuts to the heart of my residual concern about proposed subsection 29A(1)(b). It is that the Government are thinking of circumstances—copyright and others have been cited—where granting the immediate quashing order, which may be what the applicant in the particular case is seeking, would cause all sorts of problems for other people not in the courtroom, certainly in the Government’s view. Of course, it is the job of the elected Government to think about all of those other classes. Therefore, in that case, the Government would seek to invite the court to make all sorts of detailed delineations to remove or limit any retrospective effect of the quashing, but that would be the Government inviting the judiciary into a quasi-legislative role that it is not best placed to discharge, given that it would be just the Government’s view of those wider interests, not challenged in Parliament, as the Government are.

So, although I am so grateful to the Minister for making that genuine point about the need for polycentric decision-making, there is a limit to what you can ask the court to do. Remember, this would not even be the substantive judicial review hearing; this would just be the argument about remedies.

[Lord Wolfson of Tredegar (Con)]

I would not say that it is “just” about remedies; as this debate shows, remedies are very important. But I do not think that Mr Justice Green, in the music copyright case, felt that he was legislating in any way. As we heard in the first debate, this issue goes back to Lord Reid and indeed further.

There are two separate issues here. First, should we have prospective-only quashing orders as a matter of principle? We dealt with that in the first group, and I set out the reasons why. Secondly, in this group, should there be any sort of presumption? That is the point that I am seeking to address. But I hope that what I have said on third parties assuages the noble Baroness on both the presumption and prospective quashing orders generally.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked me whether this will become a standard approach for future legislation. There, I really would be going well beyond my remit. However, going back to what I said earlier, there is nothing conceptually unusual here in either a presumption or a list of factors. There is certainly nothing sinister—a word that was used by someone in that context.

I hope that what I have said goes at least some way to clarifying the concerns that have been raised on the presumption. Of course, I have listened very carefully to what has been said, and I shall reflect on it further. For the moment, I invite the proposers of the amendments not to press them.