Judicial Review and Courts Bill

Lord Judge Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I welcome the noble Lord, Lord Hacking. He and I used to hack around the Bedford Quarter Sessions, appearing in front of that terrifying tribunal, the then Geoffrey Lane QC. We learned a good deal in that court. Judges were much tougher in those days than they are now.

I also draw the House’s attention to the amazingly stalwart, stout-hearted support that the noble Lord, Lord Howard, gave to those of us who were attacking the legality of the internal market Bill. I was personally very grateful to him throughout that process, and the House should continue to be grateful to him for it. I was also interested to note his anxiety that the Bill does not go far enough, so let me take something completely different that nobody else has spoken about yet.

I ask your Lordships to consider Clauses 17 and 29, which give the Minister lovely Henry VIII powers, which will enable him, by regulation, to go back to the other place and offer the strengthening that the noble Lord, Lord Howard, would welcome, and to do so by way of subsidiary regulation. Please can we watch out for that? It is a double Henry VIII clause: one for Chapter 1 and one for Chapter 2.

Beyond that—and trying not to repeat what everybody has said—let us look at Clause 1(8), which reads:

“In deciding whether to exercise a power under subsection (1), the court must have regard to—”.


There is one astonishing omission. What is wrong with the interests of justice? It is a simple concept; we all understand it. The words

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

do not do the trick. What about the interests of justice?

I hope that the Minister will kindly confirm that “good reason” in Clause 1(9) may be found if the order would not provide adequate redress. I think he said so. If that is the case, will he confirm it at the Dispatch Box? If that is the case, why purport to add a whole series of discretionary elements to what starts off as a discretionary remedy? We do not need it.

As to Clause 2, I support the view that Cart should be overruled, but I wonder whether we need the words

“and not liable to be questioned or set aside in any other court”

and then, “In particular” (a) and (b), because the whole of Cart is remedied by simply going from “the decision is final” to the “supervisory jurisdiction” text as set out in new subsection (3)(b). If that comes into force, the judicial review proceedings in Cart cannot be repeated. I think that I have spoken long enough.