Judicial Review and Courts Bill

Lord Hope of Craighead Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[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.

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

My Lords, I feel I have to rise at this juncture. I supported Clause 1 at Second Reading and continue to do so today. Like other noble Lords who have spoken since, the noble Lord, Lord Pannick, I suggest, puts the case against the clause altogether too high. I say that Clause 1 and the powers that it confers on the judiciary valuably would add to the judges’ discretion, their powers to do justice not just to the claimant in a particular case but on a wider basis. I, too, was in the Spectrum case—Lord Nicholls’ case with the noble and learned Lord, Lord Hope, and others—and it was not a case in which we thought at that stage and in that context we should exercise this power, assuming we had it, to develop the law.

I am going to disappoint the Committee because I have insufficient recollection—I shall come back to this on Report, I promise or threaten—to deal now with the point from the noble and learned Lord, Lord Hope. But I see the force of what he says and, in a rather different context, I, too, wish to reminisce. I go back even further, a quarter of a century, to a case called Percy v Hall. It was so long ago that Mr Keir Starmer was the second junior with a very white wig. It was a case about by-laws in respect of Menwith Hill, a listening post, a secure station for GCHQ and the Americans, and the by-laws, not surprisingly, precluded public entry.

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Do not give the judges the power to say everything going backwards is fine. That is for the legislature or the Executive to sort out, not the judges. Give the legislature or the Executive the time to sort it out by a suspended quashing order, but do not give the judges the power to set the law to one side for the past. That is not their role. Their role is to determine whether or not the Executive have acted in accordance with the law. Their job is to hold them to the law, not to free them from the law. So, my strong objection is to proposed new Section 29A(1)(b), which is very much a remedy too far.

[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.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I enter this discussion with some trepidation. Nevertheless, it raises very important points of principle, which have been essentially analysed in the last few minutes and the last few exchanges. As we have heard, the effects of Amendments 1, 4 and 5, in my name and those of the noble Lords, Lord Pannick and Lord Ponsonby, would be to remove from the Bill the power to make a quashing order prospective only. That is the problem: it is prospective only. We are not arguing for the removal of the power to delay. I will come back to that in a moment, but I start from the position that I agree entirely with the analysis of the noble and learned Lord, Lord Falconer, that a (1)(a) order could solve all the problems outlined by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson.

I venture to suggest that it is significant that when the committee chaired by the noble Lord, Lord Faulks, considered its recommendations for this type of order, it recommended only the power to delay, not the power to validate past unlawful action in the way that a quashing order made prospective only would do. Our amendments are premised on the proposition that, when the courts find that an Act, or a decision or regulation of any organ of government, is unlawful, it should not then be able to decide only to quash it with future effect. As the amendment’s explanatory statement puts it, and as the noble Lord, Lord Pannick, explained, the proposed power would thereby validate

“what would otherwise be quashed as unlawful”,

and unlawful for all purposes. The noble and learned Lord, Lord Falconer, emphasised the provisions in proposed new Section 29A(4) and (5) for the all-embracing effect of a prospective-only quashing order.

New subsection (4) makes it absolutely clear that the impugned act—which is ex hypothesi an unlawful act because a quashing order is being made—is to be upheld in any respect in which the provision under new subsection (1)(b) prevents it being quashed. That has no flexibility. If the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope—as well as the noble Lord, Lord Faulks, as referred to in his speech—are seeking flexibility, a (1)(a) order is not the way to do it. Our Amendments 1 and 4 do not seek to debar a court on judicial review from permitting either officials to put right a decision taken unlawfully by remedying the unlawfulness or, as the noble Lord, Lord Pannick, pointed out, Parliament to alter unlawful regulations without the need to wield the blunt instrument of a quashing order immediately.

We suggest that the power to suspend by delaying the quashing order eliminates that risk. It mitigates the risk that a quashing order would have the effect of indiscriminately overruling all government action, for example a regulation, without distinguishing between what was lawful, or ought to be lawful, and what was unlawful. We say that enabling a decision to take effect on a delayed basis would enable the law or the government action to be corrected so as to regularise the unlawful government action. So, the quashing order, if it took effect immediately, would be senseless, but it must stand once the delay is over, to deal with the past unlawfulness. It deals with the Ahmed point, as suggested by the noble and learned Lord, Lord Falconer, and it is a far cry from the courts permitting past unlawful action to go uncorrected.

The prospective-only quashing order power undermines the central principle on which judicial review jurisdiction is based: government action is required to be in accordance with law, and if it is not in accordance with law, it will be corrected. The noble Baroness, Lady Jones of Moulsecoomb, sensibly conceded in her speech that there may be conditions or limits but they can all be dealt with by the power to delay. A crucial point that a prospective-only order ignores is that “corrected” means corrected for everyone; that is, all litigants, future and potential, even those who have not yet brought cases.

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[Lord Hope of Craighead (CB)]

I shall say just a few words. It is very strange that there is nothing in the Explanatory Notes to explain why this presumption is in the Bill at all. I have searched the notes for guidance and can find nothing. That point aside, I stress the point made by my noble and learned friend Lord Etherton about the danger that lurks in proposed new subsections (9) and (10). If one is sitting in a court trying to work one’s way through the various phrases set out there, they create a number of traps—and certainly opportunities for the disaffected litigant to challenge the decision. There are value judgments to make about what is “a matter of substance”; you must address your mind to what is meant by the phrase “adequate redress”; and you must find whether there is a “good reason” for doing or not doing something. These are all things you must face up to, and you must explain yourself, because it is all qualified by the words “is to do” or “must do”. A judgment that is going to stand up to scrutiny in the Court of Appeal will have to work through all those phrases and explain what decision the judge has taken in order to support the decision that is ultimately made.

This remedial tool is being encrusted with so much stuff that it is almost unusable. It really is ridiculous to overwork to this extent the amount of directions being given to the judge. It is not necessary, it is bad legislation and it is extremely dangerous. It is not a remedial tool at all; the Government are trying to create something in their own interest, as has been pointed out already, and make it as difficult and dangerous as possible for judges to use this tool. It should certainly not be legislated for in this form. Therefore, I strongly support the removal of these two subsections.

[Lord Faulks (Non-Afl)]

My Lords, I feel tempted to respond to the contribution of the noble Lord, Lord Beith. It is absolutely true that this particular form of words does not find its way into our report in any way. That, of course, does not necessarily mean that it is a mistake to include it in the Bill.

The noble Lord, Lord Anderson, gives a choice that is not very inviting: either this is a mere surplusage, in which case it should go, or it is potentially something that an inexperienced judge might get wrong or feel compelled by to make an order that he or she would not otherwise want to make. I wonder if that does not slightly overstate the case. I should say that I am not wholly convinced of its necessity, but I do not think it anything like as damaging as has been described.

After all, before you even get to the question of whether the court is to make a quashing order, a considerable number of hurdles have to be surmounted, as do a number of considerations which we have canvassed during the course of the debate. So, if the “interests of justice”, or whatever term that the judge directs himself or herself to, have allowed them to reach the conclusion that it is not appropriate to make a quashing order, this question of a presumption, whether it is a weak or a strong one, simply does not arise. Of course, the judge can also simply say, “Well, I take into account subsection (9), but I don’t see a good reason for making the order”, having regard to whatever it might be. I do not see it as quite the same hurdle race that the noble and learned Lord, Lord Hope, described it as.

I will listen carefully to the Minister on why it is in there. I do not think it particularly harmful, but there is, as it were, enough here to allow the judges to do what is fair without necessarily including this particular presumption.