Judicial Review and Courts Bill

Lord Hope of Craighead Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Moylan. I will say a few words about the provisions in Part 1 of this Bill as I have had some experience of the issues raised by both clauses in it.

I refer first to Clause 1, on quashing orders. The Minister was kind enough to refer to the case of Ahmed v HM Treasury. In that case, the Supreme Court held that an Order in Council made under the general wording of the United Nations Act 1946 freezing the assets of people suspected of terrorism should be set aside because such an extreme step should be taken only with the express authority of Parliament.

I found myself in a minority of one against six in holding that our order should be suspended to give time for the matter to be corrected before the assets were dissipated. Those against me said that to suspend the order would undermine the credibility of the decision we had taken, but I found myself unpersuaded by that argument. In the event, Parliament was able to pass emergency legislation in time, but it was a close call. I think it would have been easier for me to carry the rest of the court with me if the power to hold that the quashing should not take place until a later date had been written in statute. There are, no doubt, other examples of situations where the power to do this would be desirable.

I am inclined to agree too with the proposal to enable the court to provide a prospective-only remedy where it holds that an order should be quashed. I gave a judgment some years ago in which I indicated, in agreement with Lord Nicholls of Birkenhead, that I was in favour of that remedy. We were dealing in that case with a common law rule, but the flexibility that this provision offers in the case of the quashing of orders made by the Executive, under which decisions of all kinds may already have been taken, is to be welcomed. But I share with others some concern about the wording of Clause 2(9), where the word “must” appears. Much will turn on the precise meaning of that word in the overall context, but one has to be careful. One should not deprive victims of the illegality of an effective remedy; there may be situations where that would be unjust. There is a question of balance here, which is best left to the judiciary, taking case by case.

Turning to Clause 2, I was a member of the panel of the Supreme Court in the Cart case, which it seeks to reverse, and I wrote the leading judgment in the Scottish case of Eba. In holding that decisions of the Upper Tribunal should be open to judicial review, we set the bar as high as we could when we were defining the test that should be applied. I appreciate that there may be a question as to whether the Government are right in saying that experience has shown that our choice of remedy has not worked, although the noble Lord, Lord Faulks, has given us much of what was in his report to indicate that that is the case. If that is so—and I am inclined to follow the noble Lord—it seems to be time to end this type of judicial review.

We would, in the result, be returning to the original recommendation by a committee chaired by Sir Andrew Leggatt, to which I referred in my judgment in Eba: that the appeals system should be used and that judicial review should be excluded. Some support from that recommendation can be found for making this change.

I add two other points. First, to describe the provision in Clause 2 as an ouster clause seems just a little bit too strong. It is reversing the decision in Cart and, taken in its context, the wording has to be as clear as it is to make it clear that there can be no return to the Cart decision. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the Clause seems tailor-made to the context. It is certainly very far removed from the ouster clause in the Dissolution and Calling of Parliament Bill, in the context of the use of prerogative powers which causes some of your Lordships concern.

The second point relates to the extent provision in Clause 47(6). Coming from Scotland as I do, I tend to look at these clauses to see how much of the Bill I need read. If I am told that a part does not apply, then I need not trouble with it. The problem in this case is that one finds that Chapter 1 of Part 2 deals with criminal procedure, none of which applies in Scotland at all. I wonder why Clause 47(6) does not say so; it is saying, in effect, that it applies to Scotland. That really does seem to be a very strange way of legislating. There may be points to be made about Chapter 2 of Part 2 as well. I would be grateful if the Minister could assure me that the issue we have already discussed will be looked at again, in case some correction should be made.