Judicial Review and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I do not and never did take the view expressed by some that the Government in their stated aim of rebalancing the relationship between the Executive and judiciary were intent on a power grab and on destroying the courts’ supervisory jurisdiction. The Faulks review was a model inquiry producing a model report. Frankly, I had little problem with Robert Buckland, the then Lord Chancellor’s response to it, even though I recognised that in certain respects it went rather further than the Faulks recommendations.

In short, I do not, for the most part share the concerns expressed by the noble Lord, Lord Ponsonby, on behalf of the Labour Party—rather, I support Part 1 of the Bill. It introduces in Clause 1 flexibility and greater discretion in the courts’ supervisory jurisdiction and, at last, will get rid of the troublesome doctrine that a flawed decision, if successfully impugned is null and void to be regarded therefore merely as “a purported decision”. That explains the use of that term, both in this clause and again in Clause 3 of the Dissolution Bill. In short, Clause 1 would give the quietus to what has been called the “metaphysic of nullity”—the constraining theory that any legal error makes a decision or instrument not merely voidable but void ab initio.

I make three brief points. First, there are those who object to the presumption, the word “must” in new subsection (9). The requirement for the court to suspend, or on the rare occasions it does so, make prospective only a quashing order, if that would on appropriate conditions give “adequate redress” unless there is “good reason not to do so”. Such good reason, I suggest in answer to the noble Lord, Lord Thomas, would exist if, for example, an order or instrument was made in bad faith, if the maker recognised that it could well be unlawful. Personally, I am agnostic about new subsection (9), but it seems no more objectionable than Section 8(3) of the Human Rights Act, which I will not read out. Anybody interested can look it up.

Secondly, by being encouraged to make suspended orders, it seems to me the courts would be the readier to find flaws in decisions impugned—this point was hinted at by the noble Lord, Lord Anderson—if in doing so they would then avoid the administrative chaos that can otherwise all too easily flow from annulling ab initio various decisions or instruments, regulations or by-laws.

Finally on Clause 1, as was pointed out in the Faulks report, in paragraph 3.64, the power to make suspended orders,

“would be especially useful in high-profile constitutional cases, where it would be desirable for the courts explicitly to acknowledge the supremacy of Parliament in resolving disagreements”.

I will not read the rest. It is neither healthy nor helpful to have in some quarters potential concern about what is being called “judicial over-reach” or “supremacism”. Clause 1 would go some way to alleviate that.

Turning more briefly to Clause 2, I should mention that I was one of the seven justices in Cart, which is now being over-turned. One knows what we did. In my judgment, as quoted by the Minister on opening, I pointed out that the limitation of the review we were permitting in that case was to conserve judicial resources. Even that formula, however, proved altogether too wasteful of judicial resources. For that reason, it is now best to narrow it down still further to the formula to be found in Clause 2(4).

Of course, Clause 2 is an ouster clause, but not, I suggest, an intended model for future clauses wherever there is legislation. It admirably illustrates that such clauses can in various circumstances be both entirely justified and desirable and, secondly, that they can be limited in their effect, tailormade to the context, as I suggest is Clause 2 here and, in a radically different context, Clause 3 of the Dissolution Bill we come to on Wednesday.

In conclusion, I support Part 1 on the basis that each clause strengthens rather than weakens the judiciary: Clause 1 by increasing powers and discretion; Clause 2 by conserving resources.