Judicial Review and Courts Bill

Lord Beith Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

I will wait to hear from the noble Lord, Lord Ponsonby, on Amendment 3, but I must say that I am not persuaded in advance. As I mentioned at Second Reading, it is usual in some other jurisdictions for prospective-only quashing orders to be made only on condition that the benefit of the quashing extends to litigants who have already brought similar claims to that being adjudicated upon. For that specific reason and as a matter of general principle, I would not be in favour of diminishing the flexibility of the courts by removing their power to impose conditions. I like much better the noble Lord’s Amendment 6 and wait with interest to hear what the Minister has to say about it.

[Lord Beith (LD)]

My Lords, this is an area of complexity and difficulty and I think the difficulties are added to by the content of the Bill as the Government have brought it before us. It was not broken and it was not necessary to fix it in this respect. The noble Lord, Lord Anderson, has just explained how the previous use of common-law powers has dealt with this matter perfectly satisfactorily.

I share with the noble Lord, Lord Pannick, the dislike of anything that lessens the clear impact of the threat of judicial review on the public service. I say threat not because I am hostile to members of the public service but because it is a necessary discipline that things must be done within the law and they know that, if they are not, what they are bringing forward could well be nullified in the courts. The severity of judicial review is important to its role as the discipline for the rule of law.

There are, however, cases which do not fit easily into this pattern and which make an element of retrospection attractive. I think of licensing measures of various kinds—measures that render lawful things that would otherwise be unlawful. There are quite a lot of them in the area of game shooting, for example, and one caused quite a stir over the last couple of years: the power to shoot a predator bird if it is likely to enter an area where it would disturb the wildlife in a site of scientific interest which is subject to protection. In a recent example, there was indeed the threat of an action which did not take place in the end but which led Natural England to accept that its regulations were defective.

In those circumstances, you have people who have behaved in good faith and—they thought—lawfully, who, when the court in a judicial review determines that the action is not within the law, are left in a rather difficult position. You may say that nobody is going to prosecute them once it becomes clear that the law had been nullified. The case may already have started. However, in the real world, having been found to have acted unlawfully, even unwittingly, is not a good position to be in and not one that an employee wants to find themselves in. It presents some difficulties which I think Amendment 6, from the noble Lord, Lord Ponsonby of Shulbrede, attempts to address in so far as it affects regulations and delegated legislation. I will be interested to hear him set it out more fully and the Minister’s response to it.

That qualification—that we should remember the interests and concerns of people whose actions could unwittingly be rendered unlawful—is only a limited qualification to what, in my view, is the fundamental reason to object to what the Government are proposing, which is that the full rigour of the effects of judicial review should be something that the public service is always aware of.

[Lord Hope of Craighead (CB)]

My Lords, I find myself in the same position as my noble friend Lord Anderson and I would like to add just a few words to what he said.

One of the points made in the Explanatory Notes—and I am looking at paragraph 21—is that:

“The diverse circumstances of possible cases make it difficult to assume that any one remedy or combination of remedies would be most appropriate in all circumstances.”


My noble friend Lord Pannick invites us to address subsection (1), read together with subsection (4). If one asks oneself what these provisions are driving at, one has to bear in mind that there is a whole range of diverse circumstances, some of which may affect private individuals very much indeed; in which case, one would be very concerned that their remedies were not being cut out. Other cases deal with administration and circumstances where individuals probably are not affected at all, but the good administration or even the security of the country is very much at stake when a quashing order is made.

I hope I can be forgiven for coming back to the case of HM Treasury v Ahmed in 2010, which I was involved in. I mentioned it at Second Reading and when I was addressing this subject at an earlier stage. It is worth dwelling on that case because it is an illustration of a circumstance where the clauses that are under attack by these amendments could be valuable. It was a case where the Treasury had pronounced an order to give effect to our international obligations under the United Nations Act 1946, designed to freeze the assets of suspected terrorists. That was our international obligation and, understandably, the Treasury made the order. But when the case came before the Supreme Court, it was pointed out that there was no parliamentary authority for such an extreme measure. The Supreme Court unanimously decided that the order should be set aside.

I suggested in the course of the hearing and, indeed, at the end of my speech—the leading speech in the main case—that we should suspend the effect of the order to give time for the Government to remedy the situation in order to avoid the terrorists dissipating their assets. The risk was that the banks that were holding the assets under the order that was under attack would release them under demand from the terrorists. Clearly, that would not be desirable.

I was overruled by six to one for a reason which, I think, demonstrates why these provisions are needed. My noble and learned friend Lord Brown of Eaton-under-Heywood was in the majority of the six against me so perhaps he can explain more fully what their reasoning was. As I understand it, they were saying that if you quash the order you are declaring what the law always was; in other words, the Treasury order was of no effect at all—that was the effect of the order—and, as I think the noble and learned Lord, Lord Phillips, said, it would indeed undermine the effect of the quashing order to suspend it because it would be suspecting that there was something wrong with the decision to quash the order.

I could not understand that and I still cannot understand the sense of it. Indeed, one of the broadsheet papers, having spotted what was going on, asked: has the Supreme Court gone mad? I remember that certain people were rather discomfited by that but it was a very strange thing to do because there was no question of the banks releasing the money. But it was just as well to suspend the order so that they would be comforted by the fact that we were not actually making the order until Parliament had come in and produced a proper remedy to sort it out.

There you are. If you look at subsection (4), the “impugned act” was this order and what I wanted to do was to, in effect, allow the impugned act to be maintained—or, as subsection (4) puts it, “upheld”—so that the matter could be corrected. I cannot see anything objectionable to exercising the power in subsection (1)(b) in a circumstance of that kind. I wish we had had that power available to us at the time. It would have made my life a good deal easier in our discussions. It was not there and any idea that the common law could do that had really been exploded by the decision of the majority.

There is a problem and it would arise time and again if people were looking at the majority decision. There are, or could be, cases where for the protection of the public and in the interests of good administration the possibility of suspending the effect of the order so that the impugned act is regarded as valid until the defect can be corrected will be valuable. I suggest, with great respect to my noble friend, that it would be unwise to remove these provisions from the Bill.

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[Lord Anderson of Ipswich (CB)]

My Lords, I rise to speak to my Amendment 13. Two of the greatest joys of practice at the Bar are finding oneself on the same side as the noble Lord, Lord Pannick, and feeling that the noble and learned Lord, Lord Etherton, might possibly be with you. On this amendment, I am experiencing both those joys, because both noble Lords, along with the noble Lord, Lord Ponsonby, have signed it.

Amendment 13 would remove the proposed new subsections (9) and (10), by which the Government seek to enlist our aid in watering down the remedies judges might grant in the unfettered exercise of their discretion. Such interference is unjustified as a matter of principle. Judges are skilled technicians who know that every case turns on its particular facts. The Clause 1 remedies are specialised tools, the uses of which are best judged not by remote control but by those dealing on the ground with the infinite variety of cases that human ingenuity throws at them.

Two factors should incline us to particular caution. The first factor is that the Government are themselves a party to most judicial review cases. Subsections (9) and (10) look very like an attempt to tilt the playing field against those who seek to hold public authorities to account for their unlawful actions. The judges can and should be trusted to serve the interests of justice without presumptions designed to serve the interest of their promoters.

The second factor is that the remedies in respect of which the presumption applies have always been treated by the courts themselves as suitable for exceptional cases only, not just in this jurisdiction but in other jurisdictions where they are used; in other words, the Government are attempting to reverse a presumption that the judges have themselves developed in the interests of justice.

Even apparently benign fetters on judicial discretion may have unanticipated consequences. So, despite the good intentions behind it, I am a little wary of the words that would be substituted by Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. Had this been the law, it would no doubt have been argued that the rights-holders must have their pound of flesh from the innocent copiers of CDs, since to restrict the scope of the quashing order could have denied them an effective remedy. I am not sure that would have been a just result.

The Minister, as the consummate advocate he is, knows that his best chance of defending this presumption is to minimise its significance. Indeed, the first time he mentioned it this evening, he described it as a so-called presumption, although the adjective was later dropped, and his Second Reading speech scarcely acknowledged its existence. He preferred to emphasise that it is

“ultimately up to the judge to decide”

whether to take out the tools provided by Clause 1, that

“this does not limit the flexibility of the court”,

and that subsections (8) and (9) are simply

“there to ensure a consistent but rigorous approach to identify the appropriate remedy in each case.”—[Official Report, 7/2/22; col. 1380.]

Yet subsection (9) is not as benign as that. It creates a rebuttable presumption in favour of the Clause 1 remedies in any case where they would offer adequate redress—a phrase whose meaning, as we discussed at Second Reading, is highly uncertain and obscure.

Yes, a robust interpretation by the highest courts might confine it to very limited circumstances. However, such an interpretation would take time to achieve and, in the meantime, the steer inherent in this proposed new subsection will, I am afraid, be picked up and will retain its power to influence and even intimidate the less experienced judge.

Proposed new subsection (10) makes it worse by singling out for a special weight the factor identified in proposed new subsection (8)(e)—a factor that is itself uncertain and problematic, for reasons we have already heard. Particularly troublesome, going back to Amendment 11, is the weight that would have to be placed on action proposed to be taken by a public authority in respect of which no binding undertaking is, however, offered to the court.

However, my point is wider ranging. The particular weight given to one set of factors is in itself objectionable in principle, as a further limitation of the court’s discretion. I sum it up in this way: if proposed new subsections (9) and (10) constrain the free exercise of judicial discretion, they should be resisted on that ground alone; if they do not constrain it, they are pointless clutter and, for that reason, should be removed from the Bill. The underlying point is that there should be nothing in the Bill to discourage judges from holding the Government accountable, where the interests of justice require, for the past consequences of their unlawful acts. I hope that by the time we have finished with it, that is what we shall have.

[Lord Beith (LD)]

My Lords, if I were to give my apprentice joiner grandson a tool for his toolbox, I would not say, “In all circumstances, other than quite limited circumstances, this is the tool you must use and ignore the ones you already have”. The Government’s toolbox analogy does not seem to work. I am glad to have the opportunity to raise a question before the noble Lord, Lord Faulks, contributes to the debate—as I hope he will—because perhaps he can throw further light on the clarity of the recommendations of the Independent Review of Administrative Law on the issue we are debating. Paragraph 3.69 considered what would happen if the committee’s recommendation for a non-presumed format for these circumstances were followed and stated that, if Section 31 were amended in this way,

“it would be left up to the courts to develop principles to guide them in determining in what circumstances a suspended quashing order would be awarded, as opposed to awarding either a quashing order with immediate effect or a declaration of nullity.”

It was a very clear recommendation, and the Government should have taken that advice, as they took much other advice from the excellent document produced by the Independent Review of Administrative Law.

I will enter one other point into the debate. It was referred to by the former Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton: the issue of adequate redress. The way the phrase appears in proposed new subsection (9)(b)—

“offer adequate redress in relation to the relevant defect”—

worries me. It may not have been drafted with this intention, but there is a very great danger if “adequate redress” is seen as a matter which concerns only the person pursuing the action. It is perhaps too rash to say “most”, but many judicial review cases, by their very nature, have a far wider effect than simply on the individuals involved in the case. That is, indeed, recognised in the Government’s own formulation of proposed new subsection (8). It refers both to those

“who would benefit from the quashing of the impugned act”

and those who had expectations and

“relied on the impugned act”.

There will be large numbers of people in many judicial review cases who will be affected by the outcome, either because an action they have already taken will be deemed to have been unlawful at the time it was taken or, indeed, because the law on which they have relied to enforce a regulation has now been found not to have been good or effective law at the time. The breadth and implications of judicial review cases—which is why the subject arouses such widespread interest—is potentially threatened if the concentration becomes on “We’ve fixed it for the unfortunate person who appears before us in this case” without having proper regard to the very large number of people who will be affected. Now, courts do have regard to it and that is a feature of many of the cases referred to in the debate. I am suspicious that the Government wording appears to discourage them from doing so.

[Lord Etherton (CB)]

My Lords, as the noble Lord, Lord Anderson of Ipswich, indicated, I am happy to join myself with the amendment. Both the Law Society and the Bar Council oppose the inclusion of proposed new subsection (9), as do many others and for very good reasons. It is worth pointing out at the outset that the provision is not based on any recommendation of the Independent Review of Administrative Law headed by my noble friend Lord Faulks. To my mind, this part of new Section 29A is the critical provision because it colours the appropriateness or otherwise of what has gone before: in particular, the powers under the proposed new subsection (1)(a) and (b). It is objectionable, I suggest, for three reasons: it is unnecessary, it is wrong in principle, and it is potentially dangerous in practice.

It is unnecessary because proposed new subsection (8) sets out a comprehensive list of matters to be taken into account by the court, including, most importantly under (f)

“any other matter that appears to the court to be relevant.”

There is simply no need for any other guidance or mandatory direction to the court if the courts are to be left to choose the most appropriate remedy to right the wrong that has been committed. A problem would arise only if what is intended is that in certain circumstances the judge should not be left to choose the most appropriate remedy but one of the other quashing remedies to be found in the proposed new subsection (1).

As I understood the Minister’s answer to a point raised by my noble Lord, Lord Pannick, if the judge feels it would not be appropriate to impose a quashing order, notwithstanding the trigger in proposed new subsection (9) that would

“as a matter of substance, offer adequate redress”,

because the judge felt there would be injustice, that would be good cause. Well, if the judge feels that the appropriate remedy in all the circumstances to remedy the wrong committed by the public body is different from the quashing orders in proposed new subsection (1)(a) and (1)(b), that would be an injustice. So one asks oneself, “What on earth is the point of it all?” since the answer given by the Minister that I have just mentioned indicates that what one is left with is a free-ranging discretion to be applied in an appropriate judicial manner, having regard to all the circumstances to rectify the wrong that has been committed. So I am afraid I am left at a loss to understand exactly what it is that makes the proposed new subsection necessary or logical.

I have also said that proposed new subsection (9) is dangerous and wrong in principle. First, it provides a precedent for interference by the Executive with judicial discretion. In effect, it politicises the exercise of judicial discretion in carrying out the judicial function of selecting the most appropriate remedy to right, so far as possible, the wrong that has been committed.

Secondly—a point I raised at Second Reading—the trigger for the mandatory direction in proposed new subsection (9), that the court must exercise its powers under subsection (1), the new quashing powers, if that would

“as a matter of substance, offer adequate redress”

is bound to be the subject of dispute and appeals. It introduces a hard-edged objective test, quite different from the judge’s discretion, which will enable disappointed litigants an opportunity to litigate and appeal further, and that surely is something we must avoid if possible.

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which is the second. There are two important safeguards, so to characterise the presumption as an attempt by the Executive to control the courts or remove their discretion is misleading. We want to make the decision-making process thorough and consistent and, as I say, to enable a body of jurisprudence to arise, which will be in the interests of justice because it will lead, ultimately, to more legal certainty for both claimants and defendants.

[Lord Beith (LD)]

On the basis of what the Minister has just argued, do I understand the Government’s position to be that unless this presumption is included, insufficient use will be made of these provisions and case law will not develop appropriately? Is that the Government’s position?

[Lord Wolfson of Tredegar (Con)]

The Government’s position is that the presumption will enable the case law to develop more quickly, perhaps, than it might otherwise do, because in each case the court will consider whether these remedies are appropriate. But there will be no case in which the remedy is provided where the court sees a good reason not to do so. In other words, we will not be in the position of Ahmed; that was the opposite. That was where at least some members of the court—in fact, the majority—wanted to do something and could not. We are not—I underline “not”—putting the court in a position where it will say, “We have to do this. We really don’t want to, but we have to”. You simply do not get there under subsections (9) and (10).