Covid-19 Inquiry: Judicial Review

Lord Faulks Excerpts

Tuesday 6th June 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My apologies. There is a well-established precedent, as we all know—I think it goes across many Administrations—that former Ministers are supported with legal representation after they leave office. The cost of that is met from government funds and for good reasons, I think, for when those of us who serve as Ministers are doing so. When the former Prime Minister, Boris Johnson, decided to recuse from being supported by government legal services a letter was sent to him, explaining that it was possible for him to have his legal advice—if this is what was being referred to—paid for, subject to the normal rules of value for money, as the Permanent Secretary has to sign off that money is properly spent. I think it is a non-issue and that he is now drawing on his own solicitors, Peters & Peters, for advice.

The noble Baroness, Lady Chakrabarti, explained that we all agree that we have empowered a very eminent judge. I think she was making the point that it is up to the judge to decide what is relevant and what is not. We agree that the framework of the inquiry is for her to decide, but there is this narrow point about unambiguously irrelevant documents and messages. Some of those are WhatsApps, as has been mentioned. Since the Act was passed, WhatsApps have become a much more common form of communication. You can imagine that in the bundles there is a combination of personal communication and matters that are completely unconnected to the Government’s handling of Covid.

I want to make it clear—the Paymaster-General made it completely clear in the other place—that documents relating to Covid and potentially relevant material will be made available to the inquiry. It is a broad-ranging inquiry. We owe it to the people who lost their lives and those whose relatives lost their lives to find out what happened. The inquiry has to be of a very wide-ranging nature. However, in some of those documents and notebooks, there is material which is completely unconnected to the Covid inquiry.

We have therefore asked a judge to use the process of judicial review—those noble Lords who have been involved in the courts will know this is quite a common process—to rule on this technical point. We hope to have a hearing on this by the end of June so that things will be clear. In the meantime, we are continuing to submit material every day to the inquiry and to work with it.

[Lord Faulks (Non-Afl)]

My Lords, I apologise for missing the first 30 seconds of the observations of the noble Baroness, Lady Smith. Some of us were standing by and did not expect business to proceed quite as quickly as it did. I think some others may be in the same position.

The optics of this are not particularly good. I can understand the observations made by the noble Baroness, Lady Smith, and the noble Lord, Lord Allan. Clearly, individuals involved in this inquiry should not be able to hide behind process and conceal anything which may be relevant to the inquiry. I of course share with others the confidence in the noble and learned Baroness, Lady Hallett, as an entirely suitable chair with a very important role to fulfil.

I find some reassurance in the Statement in the description of the process, which has been undergone and will continue, in deciding what should or should not be disclosed. It says:

“Witnesses are required to identify any material that may contain potentially irrelevant information … with guidance from the counsel team supporting them. That is then reviewed by the counsel team, who identify any material that is unambiguously irrelevant. The counsel team discusses it with the witness in case there is any context or detail of which they may not be aware. The review … team includes … a King’s Counsel … No decision to redact material as unambiguously irrelevant has been or will be taken by a witness acting alone”.


There is an important role for the lawyers, rather than the witnesses, in deciding on relevance, although that is a continuous process. This is perfectly familiar to those like me who have been involved in disclosure and judicial review generally. It seems that there is a matter of importance in deciding what should and should not be disclosed, not just for the purposes of this inquiry but for inquiries in the future which may involve different Governments on different issues.

However, I ask the Minister whether it is possible to reach some kind of compromise on this, so that in the process described, which should be able to identify matters which are relevant or unambiguously irrelevant, there should be some circle of confidence involving the inquiry and its chair’s lawyers to enable her, her team and the government lawyers to ascertain what is truly relevant while not wasting a lot of time on things that are irrelevant and without forcing some judge to make a rather difficult decision on where the parameters lie.

[Baroness Neville-Rolfe (Con)]

I thank my noble friend for his wise advice and the background. We miss him on the Front Bench, and it is good that he has come to talk to us today. As evidence of his point, materials are carefully considered. One of the issues under debate was the Sarah Everard processes. In this case, a message that appeared unconnected to Covid was initially redacted, but it was then identified as potentially relevant as part of the additional counsel review, which the noble Lord referred to, so the Cabinet Office then provided it to the inquiry proactively. A process is going on, and a large team is working away at this. All along, our legal team in the Cabinet Office looking after the inquiry has tried to agree on sensible arrangements. We have entered a JR, but we remain hopeful and willing to agree the best way forward with the inquiry, if that is possible.

Dissolution and Calling of Parliament Bill

Lord Faulks Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, this is a new threat. We have heard of the threat of an election being called to the detriment of Back-Bench Members whose support is being sought, but the threat of Miller 3 is not one that has been produced before. I found it an unpersuasive line of argument, particularly that the Prime Minister could go to the courts and say, “In order that I should have a stronger position in dealing with foreign counterparties, I must suspend Parliament to make sure that nobody can attend Parliament and say anything in the course of its proceedings while I am engaged in these negotiations.” I cannot see any basis for that, as opposed to the contention that has come into the debate of a Prime Minister adducing in evidence, “I wish to have a Dissolution and I have a majority in Parliament supporting me in this desire”, which would be the case under the amendment that we passed previously. We would be in an absolutely clear position and the courts would have no basis for intervening.

In the preceding debate, the noble Lord, Lord True, said that the simple and proven practice of the past is what we should follow. But the simple and proven practice of the past did not include an ouster clause of this nature. The Representation of the People Acts do not contain ouster clauses of this nature, nor does most other legislation. That is a situation that might change, as the noble and learned Lord, Lord Hope, pointed out, if this is taken as a precedent. I will come back to that in a moment.

It is necessary to be clear, first, that in the event of the other place agreeing to the amendment that we passed a moment ago, this ouster clause is particularly unnecessary because no court would interfere with so clear a decision of Parliament. There are other reasons why the request to the monarch to dissolve would be protected from the actions of the courts. One is that it is, as the noble Lord, Lord Norton of Louth, pointed out in moving his amendment, a personal prerogative power. It is not a matter of advice which might be challenged, as it was in the Prorogation case. It is a personal prerogative power, which results from a request from the Prime Minister. I do not believe that the courts would be in any way inclined to interfere with the exercise of that personal prerogative by the monarch.

I strongly assert that the comparison with Prorogation is quite wrong. The effect of Prorogation is that Parliament cannot meet; it cannot sit or discuss and it cannot challenge the Executive. That is quite different from the Dissolution of Parliament and the calling of an election. Indeed, it has been adduced from the quarters of those who support the Government’s position that the calling of an election, referring the matter to the people, is so clearly the right outcome in so many circumstances that it should not be interrupted in any way. In my view, the courts would certainly not want to be seen to be preventing a general election from taking place. I find that inconceivable.

My primary worry about this ouster clause is not that it has some practical effect or that it changes what would be the clear reluctance of the courts to become involved in arguments about the calling of an election. It is that the Government have form on ouster clauses; we saw that earlier this week when debating the Judicial Review and Courts Bill, which has its own ouster clause. In that case, the Government have declared that it is their intention to use the wording in that Bill as a precedent for ouster clauses in other, unspecified Bills in future. That was clearly stated in a government press release.

The noble and learned Lord, Lord Hope, made the point that parliamentary draftsmen like to act on precedent. When they have found a form of words that suits their purpose in one case, they like to use it again in another, if possible. We are creating precedents for issues around, for example, purported powers that will be very unhelpful in future as we seek to defend the ability of the citizen to challenge abuse of power, which is what judicial review is about. We are doing so because of fears that are not justified and dangers that do not exist, because the likelihood of courts preventing a general election from taking place is clearly vanishingly small, to the point of non-existence, for the reasons that I and others in this debate have adduced. We would be better off without the ouster clause provision. We do not need it and therefore we support the amendments of the noble Lord, Lord Norton of Louth, and the amendment of the noble Lord, Lord Butler of Brockwell.

[Lord Faulks (Non-Afl)]

My Lords, the noble Lord, Lord Butler, is right to pursue his amendment because it seems quite possible that the House of Commons will decline the invitation to accept the amendment that your Lordships’ House so recently voted in favour of. I will address a number of questions briefly, because I did have the pleasure of being here in Committee.

First, is this really an ouster clause at all? I accept that it is not easy to imagine circumstances in which a Dissolution is challenged in the courts, but the noble Lord, Lord Butler, wants at least to keep open that possibility—apart from anything else, as I understand it, to save potential embarrassment to the sovereign. The noble and learned Lord, Lord Hope, does not want this ouster clause, if it is so described, to act as a precedent, and the noble Lord, Lord Norton of Louth, does not like the word “purported”.

It is probably not, strictly speaking, an ouster clause at all. During the deliberations of the Independent Review of Administrative Law, which I had the privilege of chairing, we looked at this clause. We thought that there was a distinction between Parliament creating a power and, at the same time, including a provision that limits or absolutely prevents the courts’ powers from challenging that.

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[Lord Pannick (CB)]

My Lords, I suppose I should declare a professional interest in the possibility of Miller 3.

I support the amendments in the names of the noble Lords, Lord Norton and Lord Butler. I do not suggest that the courts would today never entertain a judicial review in relation to Dissolution. The noble Lord, Lord Norton, mentioned the words of Lord Roskill in the GCHQ case in 1984—the law has moved on a long way in the nearly 40 years since then. Like other noble Lords, I find it very difficult to envisage a case in which the courts would entertain a challenge to the Dissolution of Parliament and the calling of a general election. However, I support the amendments because I think it would be wise, in this context, to proceed on the basis of never say never.

One of the vices of a provision such as Clause 3 is that it seeks to remove the possibility of the court exercising jurisdiction, however exceptional the circumstances may be or however grave the abuse of power by a future Prime Minister. I would much prefer to leave it to the judgment of a future Supreme Court whether the circumstances then existing justify exceptional judicial involvement and whether there is an abuse of power, rather than confirm a blanket immunity from legal challenge whatever the circumstances.

I also agree with the noble Lords, Lord Butler and Lord Norton, that there is a point of principle here: the Prime Minister would be exercising a very important power. It is wrong in principle that there should be an immunity from the rule of law—it is a very basic principle. That principle does not depend on whether the noble Lord, Lord Faulks, is correct in saying that, as a matter of description, this is or is not an ouster clause. What it purports to do is prevent the court saying, “What you have done is unlawful”. We should not be allowing the exercise of public powers to enjoy such immunity as a matter of principle.

We then have the argument the noble Lord, Lord Faulks, deployed, and which was raised in Committee, that the mere existence of this possible jurisdiction to entertain a judicial review may cause delay, expense or inconvenience. That seems to me to be entirely unrealistic. I looked to see whether there have been any cases analogous to the possible cases we are talking about. There is one. The Press Association reported on 8 April 1992, the day before the 1992 general election— won by John Major—that on 7 April, the day before, Mr Justice Macpherson had considered and rejected a judicial review application which was made by a Mr George Barnes, who was seeking to stop the 1992 general election going ahead. Mr Barnes was aggrieved by the manner, as he put it, in which the main political parties had chosen their candidates.

[Lord Faulks (Non-Afl)]

I am sorry to interrupt the noble Lord in the middle of his flow, but I think his point was that the law has moved on greatly since Lord Roskill. So does not citing a decision from 1992 rather defeat his own argument?

[Lord Pannick (CB)]

No, because my point is that hopeless or frivolous applications will be dealt with speedily by the courts. This was plainly an application with no merit whatever, and my noble friend’s point, as I understood him, was that the mere existence of the jurisdiction could cause delay. I am giving an example of how the courts then, and today, would deal with a frivolous application.

The judge decided, unsurprisingly, that this was not a matter for the courts and that there was no basis for the application. The general election went ahead and it was entirely untroubled by the litigation. There was no delay, expense or inconvenience. The court dismissed a hopeless application speedily and effectively, as it usually does. For all these reasons, if my noble friend Lord Butler wishes to test the opinion of the House, he will have my support.

Dissolution and Calling of Parliament Bill

Lord Faulks Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Lord Faulks (Non-Afl)]

The noble Lord is masked.

[Lord Grocott (Lab)]

I am sorry. God, I will be glad when we get rid of those for good.

The noble Lord, Lord Sherbourne, said that, somehow or other, there is a suggestion that the argument on this side or around the House is that a Prime Minister calling for a general election is bad, undemocratic or inappropriate. We are not saying that at all. We are saying that a Prime Minister would not be a Prime Minister unless he had a majority in the House of Commons, and the Prime Minister would get what he wanted. I apologise for the length of the intervention, but the question I want to ask the noble Lord is: if he feels this passionately about, as I understood it, the Prime Minister alone being able to make that decision, how could it possibly be the case, in his argument, that a monarch—unelected—could say no to the Prime Minister making a request of that sort?

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The Government have nothing to fear by the removal of these provisions if they wish to be free to exercise their prerogative powers in the context of Dissolution. I wonder whether the noble Lord can assure me that, if he insists on keeping these provisions in power, they are not to be a precedent for the future. As the way things are now, that is my principal concern because I do not see the court being involved in this issue about Dissolution being improperly exercised at all.

[Lord Faulks (Non-Afl)]

My Lords, the Committee has shown in the debate on this Bill so far that there is common ground that this Bill should provide clarity. The use of “purported” in Clause 3 seems to be a deliberate choice by the Government and the parliamentary draftsmen. It is not a word used much in everyday speech but is found in other Acts of Parliament. It is also used in judgments when an act has taken place or a decision has been taken, but a court has concluded after the event that the decision or act has no legal effect. Any well-informed draftsman in this context would have had well in mind the decision in the Anisminic case.

In Miller II, as it is generally referred to—the prorogation case—the Supreme Court concluded that despite the fact that the Prime Minister had gone through all the appropriate formalities to prorogue Parliament and Parliament had been, as a matter of fact, prorogued, the prorogation, or purported prorogation, was unlawful and was thus deemed not to have happened as a matter of law, with the result that Parliament was reassembled.

The purpose of Clause 3 is plainly to render the exercise of the power to dissolve Parliament non-justiciable. The first question is whether, as a matter of construction, it has that effect, and the second is whether such an ouster clause should be in the Bill at all. That is an issue in the stand part amendment in the name of the noble Lord, Lord Butler. If, for the sake of argument, the House were to conclude that an ouster clause was appropriate, why not include “purported” in the ouster clause? In its absence, a court could conclude that notwithstanding the apparent or purported Dissolution, because of the unlawfulness of the Dissolution—and the courts have shown considerable ingenuity on occasions in finding unlawfulness—the Dissolution never, as a matter of law, occurred. It would follow that Parliament would then be reassembled, campaigning might be halted, the date of an election vacated, with all the attendant chaos that would ensure, and it is even possible that the result of an election could be set aside. That seems to me to be a highly undesirable state of affairs, for two principal reasons: first, the uncertainly; and, secondly, the insertion of the courts into the political process.

I entirely appreciate the distinction between Prorogation and Dissolution, but before Miller 2 most lawyers would have considered that Prorogation was non-justiciable. I dare say that the advice was given by the Attorney-General or the Government Legal Department that when Mrs Miller and others brought their judicial review it was non-justiciable. That is not such an unreasonable point of view, given the unanimous decision of the Divisional Court, a court consisting of the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division. That court concluded that, without in any way expressing approval of the decision of the Prime Minister, it was a matter of politics, not law. In other words, the power was non-justiciable.

Why did the Supreme Court disagree with the reasoning of the Divisional Court? Unfortunately, we do not know, because it made no mention of the decision of the lower court. This departure from the normal engagement with the reasoning of the lower court could certainly be regarded as something of a discourtesy, to put it mildly.

There are differing views as to whether the Supreme Court in Miller 2 came to the right conclusion. The Government’s view may well have been a factor in the setting up of the independent review of administrative law, which I had the privilege of chairing. I do not purport to speak on behalf of the panel today, but I can point out to the House that we concluded that the decision might be regarded as something of a one-off and should not of itself lead to any fundamental changes in the scope of judicial review. The combination of a minority Government, no agreement in government on the right approach to Brexit, and the rigidity of the Fixed-term Parliaments Act, with its requirement of a super-majority, created something of a perfect storm.

On the one hand, the case was a magnificent demonstration of the checks and balances in our constitution working well, even if you do not agree with the conclusion. As it happens, I do not agree with it, but other views are available. I do not favour the decision because of the involvement of judges in a political matter. In conversation with constitutional experts in the United States, I have encountered considerable surprise at the decision. An equivalent challenge in the United States would fall foul of the political questions doctrine, and the claimants would not be able to establish that they had standing to bring such a challenge. In this jurisdiction, points on standing are rarely taken. We pointed this out in the IRAL and suggested that they should be taken more often, even by the court of its own motion, since it is a jurisdictional matter.

In his response to the IRAL report, the then Lord Chancellor, Sir Robert Buckland, as he now is, said that he was anxious to protect judges from politics. I think he had a point. Unlike in the US, our judges have, for the most part, skilfully avoided involvement in political matters. As a result, and in sharp distinction to their counterparts in the United States, our judges are not well known to the general public and their views are not a matter of general public interest, in the non-technical sense, and long may that continue.

This Bill would protect judges from political controversy by reason of the terms of Clause 3. I think a number of judges would be perfectly happy with that outcome, but even if they were not there would be an acceptance that Parliament is entitled to legislate to exclude the courts from considering the legality of the power to dissolve Parliament. The IRAL concluded that it was constitutionally open to Parliament to pass an ouster clause of this sort, and unless you reject the doctrine of parliamentary sovereignty, I do not believe that this is in any way controversial.

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[Lord Wallace of Saltaire (LD)]

My Lords, if we are talking about our tried and tested constitution, we should remember that in the 17th century it was Chief Justice Coke and his defence of the rule of law against the extent of the royal prerogative which led to the development of some of the ideas of constitutional democracy at least as much as Parliament. The rule of law is an essential part of the way we work.

I say to the noble Baroness, Lady Noakes, that we all know that this clause is in the Bill because of the judgment on Prorogation in 2019. I was interested to hear that the Minister’s definition of Prorogation did not in any sense suggest that that use of the power came within an accepted definition. Perhaps he will change his definition next time he comes.

The Minister has said that the importance of the Bill is to restore the status quo, but this ouster clause is not the restoration of the status quo. I agree with the noble and learned Lord, Lord Hope, that it opens a window to its use on other occasions, which would be highly undesirable. It is much more radical than Clause 2 in changing our customs and practices. If we want to maintain the status quo while changing it a little—

[Lord Faulks (Non-Afl)]

The noble Lord says that the clause does not restore the status quo. Does it follow that, in his view, the power to dissolve would have been justiciable at common law by virtue of the conventions?

[Lord Wallace of Saltaire (LD)]

I find it hard to imagine a situation in which the power of Dissolution would be used in the way that the power of Prorogation was used in 2019, so I do not think it likely that the case would arise. That is my instant opinion.

The radical dimension of this is that it disturbs the balance between the judiciary and the rule of law, and Parliament and the checks that Parliament has on executive power and the Government. The conclusion of The Independent Review of Administrative Law says, as the noble Lord, Lord Faulks, will remember:

“The Panel consider that the independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers … It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions … a degree of conflict shows that the checks and balances in our constitution are working well.”


I strongly agree with those sentiments. It is part of the proper process of constitutional democracy that each of those elements of our constitution should have a degree of tension with each other and hold each other in balance.

That is why I am in favour of amending this Bill to provide the simpler process of powers of Dissolution that Clause 2 provides—thus making Clause 3 unnecessary —and supplementing the desire for clarity of conventions by revising the Cabinet Manual to have a more fluent definition of Dissolution principles. If we do all three of those, we will substantially improve the constitutional value of this Bill.

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[Lord Faulks (Non-Afl)]

This may be an observation intended to help the Minister. Since the Bill was drafted, the Judicial Review and Courts Bill has been introduced. It contains an ouster clause, but one that is qualified as opposed to absolute, so the argument that this is being used as some form of basis for future ouster clauses seems to be defied by recent legislative practice.