Judicial Review and Courts Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Faulks (Non-Afl)]

I am grateful for that clarification, but I am afraid to say that I still fail to follow how bringing forward a fairly balanced Bill is somehow the Government reflecting an elected dictatorship. But I hear what the noble Baroness says.

[Lord Falconer of Thoroton (Lab)]

My Lords, this is a very important debate and in this part of it, I will focus only on whether it is appropriate to empower a delayed quashing order—as proposed in new subsection 1(a)—and whether it is appropriate to give a power to say it shall be prospective only. My overall position is that if the courts want these powers, let the courts develop them. Do not do it by legislation.

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[Lord Hope of Craighead (CB)]

The noble and learned Lord was kind enough to refer to the case that I was referring to. However, I was suggesting that the court should have power, in effect, to direct that the order made under the United Nations provisions be treated as valid until Parliament could introduce a measure giving authority to the making of the order. That is indeed what happened afterwards; Parliament had to remedy the problem and some time was needed to allow it to do that.

The banks were holding on to the money; of course, they were not going to release it unless it was demanded by these suspected terrorists, but had they demanded it, it might have been quite difficult for the banks to refuse to release some money. My point was that something should be done to prevent that happening. The last thing one wanted was to give these terrorists the opportunity to make off and dissipate all the assets that had been protected by the order made under the international obligation.

The problem that the noble and learned Lord is grappling with is that there is a huge range of circumstances in which these provisions may come into effect, some of which, I quite agree, would be offensive. I would hope that the courts would be sensible enough not to exercise the power. There are various provisions later in the Bill, which we will discuss and which might be better removed to preserve the court’s flexibility. The question is whether the power should be there at all. My point was that, yes, it should be there because there can be cases where the interests of good administration, and possibly national security, require the possibility of doing that to prevent the event—or whatever it was that the defective order was designed to prevent—taking effect.

[Lord Falconer of Thoroton (Lab)]

New subsection (1)(a) deals with that point. The effect of the order stood until the Supreme Court set it aside, and everybody would accept that that is the position. If the Supreme Court had had new subsection (1)(a)—which it could have—it could have said that the order freezing the money continues for six more months and in six months’ more time it is then quashed. That is my understanding of a (1)(a) order: the quashing order means getting rid of the restraint on dealing with the money and does not take effect until the date specified in the order.

If the Supreme Court had said, “This order stands until six months’ time”, and a bank had then been approached and told, “Excuse me, the terrorists want their money now”, the answer would have been no because there would still, in effect, be a restraining order. It would have dealt with the problem that the noble and learned Lord posits; I think Clause 1(1)(a) would have dealt with it.

[Lord Hope of Craighead (CB)]

I recommend that the noble and learned Lord refers to Treasury 2 because I made exactly the point that he was trying to make and I was overruled by the others. They said, “You can’t do that”, and they would not make the suspended order. We are in Committee and we cannot prolong the discussion, but that is the problem that I was faced with. I tried to do exactly what the noble and learned Lord suggested but I was overruled. That is the problem that I think the Government are trying to address; the Minister will correct me if I am wrong.

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The Bill does not provide that, when a prospective quashing order is made, the judge is determining or deeming that the decision in question was in fact lawful. In fact, the judge is determining the precise opposite. We must be clear that what the court is doing here is not making an unlawful action lawful—we are thankfully not returning to the days of Charles I. The court, in this clause, is providing how the unlawfulness should be manifested or dealt with—“treated”. This goes back to the nature of remedies—

[Lord Falconer of Thoroton (Lab)]

If the court determines that regulations that impose a tax charge are unlawful but decides that this should be prospective only, is the consequence that the taxes raised before the date are “treated” as having been lawfully raised?

[Lord Wolfson of Tredegar (Con)]

If the noble and learned Lord will forgive me, I will come to precisely that point later in my speech, because it arises under the amendment put down by the noble Lord, Lord Ponsonby.

[Lord Falconer of Thoroton (Lab)]

I am raising it now because the noble Lord is placing huge emphasis on the word “treated”. I would be interested to know whether that word means that tax raised under unlawful regulations in the past remains treated as if it were raised lawfully.

[Lord Wolfson of Tredegar (Con)]

I will come to this point because these are two sides of the same coin. The short answer to the noble and learned Lord’s point is that it would be almost incomprehensible that a court would use a prospective order in circumstances where people have paid taxes that were necessarily unlawfully raised—so the question would not arise. It is a nice theoretical question, but it would not arise. That is why I will deal with it later, and I am happy to take further interventions at that stage, if we can try to deal with the points separately. I see where the noble and learned Lord is going, but at some point one has to live in the real world and consider whether a prospective-only order would be appropriate. Remember, the court has to look at the factors in subsection (8), including paragraph (f), which refers to

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

It also has to look at where subsection (9) says

“unless it sees good reason not to do so.”

The idea that that could survive an unlawfully raised tax case is, I suggest, almost incomprehensible.

I will go back to where I was. We are not making an unlawful act lawful. The real question is: what is a remedy at all? In particular, what is a quashing order? This is something that has, frankly, bedevilled public law for some time. It is not clear that public lawyers, or indeed anyone else, have come up with a good answer to it. I suggest, however, that the remedy that the court gives, whether a quashing order or an order of prohibition, does not determine whether something was unlawful or not. It is the judgment and any declaration as to the state of the law that do that. The remedy decides what the effects of that unlawfulness should be, because there are cases where the court will declare that something was unlawful but not actually give a quashing order—but the action is still declared unlawful.

So this new power allows the court to modify the remedial effect of the quashing order so that, up to a point, the action or decision in question would be treated as being valid for all intents and purposes. The court is therefore doing its traditional job of declaring what the law is and what the law was, but it has greater flexibility in determining the real-world effects of its determination. I therefore respectfully agree with the way in which the noble Lord, Lord Anderson of Ipswich, put it. I heard his slightly in terrorem threat as to when we come to the presumption—but I will deal with that at that time.

That approach is consistent with public law as we understand it today. Judges are faced with situations where, despite a finding of unlawfulness, a quashing order does not issue, for a variety of reasons. I do not think therefore that it follows on principle that a finding of unlawfulness should always result in the voiding of the decision ab initio. I am grateful therefore for support on this point from the noble and learned Lords, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, although I will avoid getting into any relitigating in this Committee of either Spectrum or Ahmed—we will leave that for later groups and possibly further editions of memoirs.

We need to avoid an approach which would take us right back into the straitjacket of nullity, and the academically interesting but practically frustrating doctrines that characterised decisions from Anisminic to Ahmed. We are not giving the court a binary choice of quashing retrospectively or giving declarations that state the law but do not necessarily deal with the effects of the impugned decision, even if it is declared to be unlawful. That is my response to the first main point from the noble Lord, Lord Pannick.

His second contention is that the new powers draw the courts into policy questions. I say respectfully that we are simply not doing that. We are asking the courts to do what in many ways they do already, which is to assess the possible effects of their judgment on the parties and the public interest. It may well be the case that having given the courts these two new tools—I think the noble Lord, Lord Faulks, made this point—they do issue quashing orders in cases where they would not have done so if the only option open to them was an ab initio quashing order. Well, so be it. If Parliament has given them these extra tools, that is the way matters will work out. Subsection (8) sets out what we believe to be the pertinent factors, but we made it expressly a non-exhaustive list.

Courts have long recognised the principle that the administrative burden of rectifying the effects of a past decision can outweigh its potential benefits, especially if the Executive are rushed into action. Importantly, there are cases where the courts have recognised that regulations or policies that have a wide effect can create expectations for third parties: plans could have been made, contracts signed and money spent, all in pursuit of what everyone thought was a lawful policy.

We must not get lured into the example of somebody paying tax under regulation which turns out to be unlawful. People might have signed contracts on the basis of a regulation which turns out to be unlawful. They may have spent money or set up businesses. To undo all that could give rise to far more injustice than making sure that present and future situations are rectified. The example I gave at Second Reading, which the noble Lord, Lord Anderson of Ipswich, also mentioned, was the case of BASCA v Secretary of State for Business.

There is a further benefit to good administration, which is really what judicial review is all focused on anyway, which is that public bodies can make good a decision without having to revisit what can sometimes be long and drawn-out policy processes for the sake of a small error.

In cases relating to Heathrow expansion, for example, one point of contention was whether the Government had to take into account the Paris climate agreement. If the court had ended up finding that the decision not to take it into account was unlawful, it would surely have been far better to give a prospective order, so that the overall process of expansion was protected and the decision could be amended properly to take into account the relevant agreement. Quashing retrospectively would mean that the entire process would need to begin again from square one. A prospective remedy would allow the unlawfulness to be corrected at lower cost and in a shorter time, while still recognising—I underline this point—that the initial decision was unlawful.

I also emphasise the points in subsection (8)(c), which ask the court to have regard to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”

and subsection (2), which allows the court to set conditions on the remedy. I hope that those provisions assuage any concerns that individual rights would be prejudiced—on the contrary, they ought to be taken into account by the court.

I have gone into some detail on that point because it was focused on by the Committee. I hope I can deal with the other amendments slightly more quickly with that background.

Amendment 3 removes the ability of the court to attach conditions to a suspended or prospective-only quashing order. These are intended to give the court maximum flexibility. For example, a court might want to make an order prospective only to reduce administrative chaos, but only on condition that parties who may have lost out financially are properly compensated. The conditions may not be necessary in every case, but it is an option for the court where appropriate.

Finally, Amendment 6 aims to ensure that the invalidity of quashed regulations can be relied on in criminal or civil proceedings. As I understand it, the concern of the noble Lord, Lord Ponsonby, is twofold. First, defendants could be prosecuted under regulations that have been ruled to be unlawful yet, because of the powers in this Bill, are treated as valid. That point was made by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.

Secondly, this might mean that claimants or victims would be less able to obtain damages, restitution or compensation. As I have suggested already, the amendment is unnecessary. As the noble Lord, Lord Faulks, said, collateral challenge is not at issue. The Bill does not necessarily prevent such challenges, because it gives the courts powers to formulate the remedies appropriately. In circumstances where provisions which create criminal penalties are being challenged, and have been challenged successfully, I find it very unlikely that a court would decide to use a prospective-only remedy. That is not only because the list of factors includes in subsection (8)(c)

“the interests or expectations of persons who would benefit from the quashing of the impugned act”

and, in subsection (8)(f),

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

That would, I think, mean that the court would certainly find a “good reason”—to use the language in subsection (9)—to use a retrospective quashing order, so that any persons, for example, who had paid tax would have a remedy in restitution.

In similar cases where a court considers a suspended remedy, the ability to set conditions on the order would also mitigate any risk of injustice. For example, a court could use a suspended quashing order with the condition that the authority in question does not take any further enforcement action. This goes back to my main point about maximum flexibility. For those reasons, I invite the noble Lords who have tabled these amendments not to press them.

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[Baroness Jones of Moulsecoomb (GP)]

I do not see this as a tool in the toolbox but as opening up a nest of snakes. When you use the phrase

“unless it sees good reason not to do so”,

it opens up some real complexity if people start to make further appeals on the basis that there was good reason not to do so or good reason to do so. I do not see that this is any sort of simplification. The Government will probably regret opening this system of quashing because it will add complications when the Government presumably want it to run more smoothly. I cannot see that there is any point to this. I hope that all those legal eagles over there will start circling round our little legal lamb here and explain to him that he has got this completely wrong.

[Lord Falconer of Thoroton (Lab)]

These are important amendments. They address the botched way that, if these powers are to come in, the exercise of discretion is to be applied. My noble friend Lord Ponsonby is saying that you would use what the noble Lord, Lord Wolfson, describes as the tools in the toolbox only if it is “in the interests of justice to do so”. That is the starting point. That sounds to me a lot more sensible a starting point than the very strange wording in new subsection (9), which is, if the court is to make a quashing order in accordance with new Section 29A(1),

“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so”,

and the condition is that

“as a matter of substance”

an order under new subsection (1) would

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

Obviously, there is a difference between adequate redress on the one hand and what is the best order in the interests of justice overall on the other. Can the noble Lord tell us why this strange wording has been adopted if all that is intended is the broadest possible discretion in relation to using these two new tools in the toolbox?

My noble friend Lord Ponsonby’s amendments also relate to new Section 29A(8). The Minister said, in reference to prosecutions and taxation, that you would never make a new subsection (1) order, whether a delayed quashing order or prospective only one, and that is clear, he says, from new subsection (8). He relied in particular on new subsection (8)(c), which refers to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”.

If I have been prosecuted under a regulation that was unlawful, I would expect my prosecution to be upheld. But then, new subsection (8)(d), refers to

“the interests or expectations of persons who have relied on the impugned act”.

Therefore, if, for example, it is made unlawful to do a particular thing and I have had my dog put down as a result or I have bought lots of expensive equipment to comply with the criminal law as I thought it was, my interests or expectations under new subsection (8)(d) would be “Let the law stand”. So new subsection (8)(c) points in one direction and new subsection (8)(d) in another. If it is the Government’s intention that all prosecutions brought under unlawful regulations or laws will never be prospective only, and if it is their intention that taxation raised under unlawful regulations will never be prospective only, in my respectful opinion—I may be wrong, in which case let me corrected by the noble Lord, Lord Wolfson—new subsection (8) does not get him anywhere near that. Indeed, it leaves the judge to decide and the judge has to decide on the basis of new subsection (9).

I therefore strongly agree with my noble friend Lady Chakrabarti. A bit more work needs to go into this to get to a point where there is clarity about what the Government intend, if their intention is that these are only two tools in the toolbox, with complete discretion over how to use them. If that is what they want, my noble friend Lord Ponsonby’s amendments are giving them quite a good opportunity of getting there.

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

I hesitate, my Lords, to speak again. I feel that so much of what has been said has been dancing on the head of a pin. I have to say that I have come to see new subsections (1)(a) and (1)(b) in new Section 29A in Clause 1 not as dramatically different things but rather as a continuum. They cover a spectrum; indeed, there is an overlap in between them, in the middle. There is no question here of subsection (5), to which the noble Lord, Lord Pannick, objects so strenuously—the one about being treated, and so forth. It is always subject, be it noted, to new subsection (2) of new Section 29A. Any of these orders under new subsection (1)—in other words, whether it is an order under new subsection (1)(a) or (1)(b)—can be made subject to conditions. Those conditions clearly would control the extent to which there is to be any degree of retrospectivity or retroactivity, call it what one will.

I am a huge admirer and respecter of the noble Baroness, Lady Chakrabarti, but I do not see this as being, so to speak, comparable to Parliament infinitely rarely passing legislation retroactively. We must always remember, must we not, that judicial review is, at the end of the day, a discretionary remedy; you do not actually have to make these orders anyway. I still see this, as the Minister would urge, as a tool in our toolbox, giving us the maximum flexibility and discretion to do what justice requires to all—which includes, of course, to those who are not in the courtroom, who do not have legal aid, and all the rest of it. With criminal convictions—taxation and things—one trusts and assumes that the court is going to behave correctly. In the Percy and Hall case, with the good lady trespasser and PC Hall who was being sued for damages for having arrested people who on the face of it were invading this territory, contrary to apparently valid by-laws, I pointed out in the judgment that, if and insofar as she had actually had criminal convictions, of course they would be set aside. But that is merely an aspect of judges behaving, as one hopes and believes they will, in a judicial manner.

So I respectfully continue to support this clause. I said at Second Reading that I was agnostic or entirely relaxed—I think that was the term used by the noble Lord, Lord Anderson—as to whether it is “may” or “must” in new subsection (9), and I remain so. “Must” simply urges the judges to give attention to this new tool in their armoury or toolbox. But they do not have to, and they will not, unless by all the conditions that they wanted to impose, they have made it clear that what they are doing will not be contrary to justice.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I will respond to the amendments in this group in grouping order. I start by making a point about the list of factors. The purpose of the list of factors in subsection (8) is, as I said in the previous group, to allow the court to respond flexibly in the interests of delivering justice. However, it is important that the court considers—I emphasise “considers”—whether the remedies to be used are appropriate. These are the factors to which the court must have regard.

[Lord Falconer of Thoroton (Lab)]

Is the Government’s intention that these two remedies—new subsection (1)(a) and (b)—should be in a different category from every other remedy the court has under judicial review?

[Lord Wolfson of Tredegar (Con)]

Yes and no, in the sense that this gets us into the argument about the presumption, because the presumption applies to only these two remedies. To that extent, the point made by the noble and learned Lord is correct: that is the nature of the presumption, which we will get to in the next group. We want the court to specifically consider whether these remedies are appropriate and to use them, as the ending of new subsection (9)(b) says,

“unless it sees good reason not to do so.”

Because these are new remedies, we have set out a list of non-exhaustive factors which the court must consider. These are the factors in new subsection (8)—and it is expressly non-exhaustive in new subsection (8)(f). I agree with the noble and learned Lord that, as he put it, these are important considerations. However, we want to encourage consideration of their use; we are certainly not mandating their use in any case.

The other thing we want to do, by putting these factors in the Bill, is to provide consistency in the jurisprudence from the start as to how the remedies are used in the cases which come before the court. I remind the Committee that we consulted on the sort of factors that should be included in the list. We received some very useful contributions in response to that consultation. However, the “must” in new subsection (8)—which is contrary to the proposal in Amendment 7 before the Committee—requires the court to consider each of the factors in the list. Coming to the point made by the noble Lord, Lord Marks of Henley-on-Thames, the “must” does not require the court to find that every factor in the list applies. It does not require the court to say that all the factors are relevant in the instant case. The court may consider that some of these factors in the case before it are not relevant at all; some might have very limited weight or only marginal relevance. All the court must do is to consider them. As the noble Lord, Lord Faulks, pointed out, the court may add to its consideration absolutely anything it wants under new paragraph (f).

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[Lord Faulks (Non-Afl)]

Perhaps I might briefly add to that point before the noble and learned Lord, Lord Falconer, speaks. An absolutely classic example of legislating for discretion would be Section 33 of the Limitation Act, which courts are applying every single day of the week, which lists a large number of factors which the court may take into account and concludes by saying that it may take any other thing into account. Although I absolutely take the point made by the noble and learned Lord, Lord Thomas, there is nothing particularly unusual about setting out in detail the discretion and then, nevertheless, allowing the court to take into account other matters.

[Lord Falconer of Thoroton (Lab)]

I have just two points. First, I agree with the noble and learned Lord, Lord Hope, that no reason is given as to why there is the presumption, but it is worth emphasising that the Explanatory Notes accept that there is a presumption. What is being said is, and it is the intention of the Government, that, if a quashing order is to be made—certain sorts of judicial review will always lead to a quashing order; for example, if a power to prosecute people has been given without justification from primary legislation—there is to be a presumption that the quashing will be delayed and that, subject to the condition in new Section 29A(9), you will use either the delay or prospective-only power.

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[Lord Falconer of Thoroton (Lab)]

Surely the courts will consider it when it is raised by the Government, and the question of the amount of time and how often the courts consider it will be dependent on the number of times it is raised as a proposition. I do not see why we need the presumption to get the courts to consider this.

[Lord Wolfson of Tredegar (Con)]

There are two parts of the answer to that. First, there are, as I said earlier, many judicial reviews in which it is not “the Government” in the way that the phrase “the Government” is used.

I am grateful to the noble and learned Lord, because the second point ties into a point I was going to come to. It is, I am afraid, a longer response than the speech which provoked it from the noble and learned Lord, Lord Judge, who said that this is a presumption in favour of the wrongdoer. I will try to answer the two points together. With great respect, I disagree for this reason: the presumption is not a presumption in favour of the wrongdoer. It is a presumption in favour of finding the appropriate remedy for the facts of the case. As we have heard, rightly, from a number of noble Lords, the claimant might not be the person who is actually most affected by the decision in question. There could be a whole class of people who are very severely affected by the decision in question who are not before the court. The claimant, who is before the court, is affected because they are sufficiently affected to have standing, but they may not be affected to the same degree. Therefore, it may not matter too much to the claimant as to whether the remedy is given. It may, on the facts of the case, not even matter too much to the defendant whether this remedy is given, but it may well affect third parties.

Another benefit of the presumption is that the court, so to speak, has to go through that thought process of whether this would be the appropriate remedy, thinking about people—we talked about the factors in subsection (8) earlier—who are not before the court, because on the facts of a particular case, the claimant may not actually be too bothered about whether these remedies are used. The defendant may not be too bothered whether the remedies are used, but it could well affect the position of third parties. Therefore, with respect, I dispute the proposition that this is a presumption in favour of the wrongdoer. It is in favour of the appropriate remedy.

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[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.

[Lord Falconer of Thoroton (Lab)]

That is an interesting answer. If there are two judicial reviews going on and one holds, for example, that the regulations are unlawful—not in accordance with a statutory power—but says prospective-only, it is presumably open to a second judicial review, which might be going on in parallel, to say, “It is unlawful, and I argue for it not to be prospective-only, for the following reasons.” Would it be open to two judicial review courts to come to different conclusions on the same unlawfulness?

[Lord Wolfson of Tredegar (Con)]

We all know that judicial reviews have to be brought within three months of the act. Therefore, I suggest to the noble and learned Lord that it is highly unlikely that one will have two separate courts adjudicating on the same decision. If there were separate judicial reviews, they would be consolidated.

[Lord Falconer of Thoroton (Lab)]

Scotland and England?

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[Lord Faulks (Non-Afl)]

He is in opposition.

[Lord Falconer of Thoroton (Lab)]

I disagree quite strongly with what the noble Lord, Lord Faulks, said about how suggesting that this part of the Bill be removed is irresponsible. As the impact assessment put forward by the Government indicates, if this part of the Bill goes forward, between 173 and 180 Upper Tribunal and High Court days would be saved, which they calculate at £400,000. We are talking about a saving of £400,000 if this goes through, according to figures advanced by the Government.

As the briefings we have received from a number of organisations indicate, the effect of Cart judicial reviews has been quite significant. Points of law have been established as being wrongly decided by the First-tier Tribunal and the Upper Tribunal. No criticism of those two tribunals is intended, but that is what happened. They have been of some considerable importance, particularly in relation to human trafficking, duress and asylum status.

In relation to the point about Lord Justice Laws, his judgment in Cart in the Court of Appeal utterly exploded the theory that, simply because it was a superior court of record, there could not be judicial review. It exploded that proposition—which had been the basis of saying that Cart was not the subject of judicial review—so totally that in the Supreme Court, the judges who gave reasoned judgments indicated that he had done such a great job in relation to that that nobody now sought to restore that argument.

I am against this provision in relation to Cart because it does two things which are bad. First, it removes the High Court from considering whether or not the Upper Tribunal has got it wrong. In England—I say nothing about Scotland—it is the High Court that is the absolute cadre that determines the development of the law and the quality of the law, and I am not in favour of it being removed from this for £400,000.

Secondly and separately, as Cart in the Supreme Court said, there are a range of options open to the Supreme Court as to what the test should be for allowing judicial reviews from the Upper Tribunal’s refusal of permission to appeal from the First-tier Tribunal. It considers the ranges, such as exceptional circumstances, or asks whether it should be on the basis of, “We will give judicial review when the Upper Tribunal should have given leave to review it”, or some combination of the two, or a breach of natural justice—something like that. It said that the Supreme Court had a quite broad discretion to determine what the filter should be.

In the report of the group that he chaired, the noble Lord, Lord Faulks, said that the way that judicial review should develop should be on the part of appropriate deference by Parliament to the courts, and by the courts to Parliament. What I took that to mean is that the courts should be very careful to make sure that, in every case they can, they give effect to what Parliament wants. I took the noble Lord’s reference to deference by Parliament to the courts to mean: let the courts develop the precise ambit of the process by which they will judge illegality or not.

I object to Clause 2, because what is happening here is that inappropriate deference is being shown to the courts. The courts have the power to decide what the filter should be. They made that clear in Cart. The Supreme Court can revisit Cart; it is seven years old and, anyway, it can revisit it if it is 10 minutes old. It, not the legislature, should decide what the filter is in relation to this.

The key thing about judicial review is that it is the main means—not the only means, but the main means—by which the courts uphold the rule of law. Our constitution is based on democracy and the rule of law. Although there are functions within government that determine, or try to protect the state from, breaches in the rule of law, the key vindicator of the rule of law is the courts. Why on earth, for £400,000, is the legislature galumphing in to this area when the courts themselves can give the precise limits of this? It is—perhaps the noble Lord will let me finish.

It is such a mistake to do this. It sets out an ouster clause; that may be used in future, but I am pretty confident that the courts will construe ouster clauses against the background, so the wording in one case may well not work in another case. What is wrong here is that the Executive should not be doing this, because the courts have the power to sort it out themselves, and they should. I apologise for not taking the intervention from the noble Lord straightaway.

[Lord Faulks (Non-Afl)]

The noble and learned Lord does not mischaracterise the conclusions we reached at all. Quite rightly, we emphasised the respect of the various parts of the constitution to each other and the importance of that. However, he omits to mention a fact we stressed: none of the judges who made a submission to us ever suggested that, when Parliament thought a decision was wrong, it was not appropriate to legislate to reverse the effect of that decision. To suggest that does not do violence to any of the principles that we identified—I think the noble and learned Lord and I would agree about those principles. As for the hourly rate of judges, with great respect, whether they are remarkably good value for what they do does not alter the fact that, if something is bad law, it needs reversing.

[Lord Falconer of Thoroton (Lab)]

There is a fundamental misunderstanding there. Of course, Parliament can reverse a judicial review on its substance. If the courts conclude that some social security regulations do not meet a particular provision, they can change those regulations and come to the same result they wanted to all along, which is fine. I am talking about the fundamental role of the court in relation to determining whether the Government are acting lawfully. In relation to that, namely the ambit in which the court will operate Anisminic onwards, as it were, do not interfere with it. Let the courts determine that. Ultimately, the limits of that have to be set by the courts and not Parliament.

[Lord Pannick (CB)]

The noble and learned Lord has raised a number of very valid points in opposition to Clause 2. I offer another, in response to the noble Lord, Lord Faulks, who emphasises that there must be finality in litigation. The problem with that argument is that Clause 2 itself recognises the need for exceptions. New Section 11A(4) specifies exceptions, in particular for a

“fundamental breach of the principles of natural justice.”

In my Amendment 19, I suggest we need a further exception for where the Upper Tribunal has made a fundamental error of law. The noble and learned Lord, Lord Falconer, gave a number of examples where there may be important areas of law that raise fundamental issues that go to the safety of the individual who is going to be removed to a place where they may face persecution or torture. I for my part do not understand why a fundamentally unfair procedure is a greater mischief in this context than a fundamental error of law by the tribunal system. In each case, the Upper Tribunal and the Court of Appeal will have declined to intervene. If the judicial review route is nevertheless to remain open, as Clause 2 recognises, for fundamental procedural defects, surely it should remain open for fundamental substantive defects.

I accept of course, as again the noble Lord, Lord Faulks, emphasised, that there will be claimants with no legitimate point who seek to argue that they fall within the exception, but that is equally true of an exception for fundamental procedural defects. In any event, the answer to that concern is to ensure that any application for judicial review, whether of substance or procedure, is looked at and addressed by the judge on the papers and within a very brief time period.