Judicial Review and Courts Bill

Lord Judge Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

That is what subsection (10) is about. The Minister is looking confused by me saying that, but that is what it is aiming at, and it is why the noble and learned Lord, Lord Thomas, is raising it as a potentially sinister measure. If we are to have new Section 29A(1)(a) and (b)—I can live with subsection (1)(a), but I cannot live with subsection (1)(b)—and if the Minister is true to his word, it is a tool in the toolbox; let the judges decide in accordance with a wide discretion. That is why my noble friend Lord Ponsonby’s suggestion of saying “in the interests of justice” is more than adequate. Let the judges decide in accordance with that sort of principle whether they use it. Let us not tilt it in favour of the Government. This provision looks to be biased legislation; it is not legislation that is genuinely and objectively trying to improve judicial review.

[Lord Judge (CB)]

My Lords, I had no intention of intervening in this debate, but the question that seems to arise is this: why are we giving a presumption which is in favour of the wrongdoer?

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

My Lords, I entirely support the removal of the presumption. I will never try to achieve the brevity of the noble and learned Lord, Lord Judge, but he is absolutely right: this is a presumption in favour of the wrongdoer.

The only reason my name is not on Amendment 13 in the name of the noble Lord, Lord Anderson, is that I failed to secure a place among the first four supporters who were rushing to support the amendment. There is no getting away from the fact that, by new Section 29A(9), the Bill proposes making the exercise of the Clause 1 powers, prima facie at least, mandatory. If the “adequate redress” condition is met, and unless the court sees good reason not to do so, it must exercise both powers—not just one of the powers, according to the statute—both to suspend to suspend or delay the quashing order and to make it prospective only.

I agree with the noble and learned Lord, Lord Etherton, that this presumption colours the approach that is required to be taken by judges. I believe that understates the position. He was also right to say that it was dangerous and wrong in principle.

The Minister’s position on behalf of the Government is that the court is not bound to exercise these powers if it sees good reason not to do so. It follows from that that these are therefore wide discretionary powers and that any judges worth their salt—if I may paraphrase what he was saying at Second Reading—would find ways of not applying the presumption. If that is right then the noble Lord, Lord Anderson, is right that subsection (9) is entirely unnecessary. If the judge were to be entitled to exercise a wide discretion, there would be no reason to mandate the exercise of the powers in any particular way and we would be back to the position taken by the noble Lord, Lord Pannick, that the Government should trust the judges. I fear that the only reason the Government want to have the powers exercised on a mandatory basis is to ensure that there is a default position. That is why it has been correctly labelled a presumption. My noble friend Lord Beith’s analogy is absolutely right: if you have a toolbox, you should not be bound to use any particular tool, whether it is right or wrong for the job in hand.

My noble friend Lord Beith was also right on the question of “adequate redress” as an unsatisfactory and difficult-to-interpret test. Not only would it encourage unnecessary appeals, as the noble Lord, Lord Pannick, said, but it is also entirely unclear for whom the redress has to be adequate. The natural meaning of the words would be adequate for the applicant, but that is wrong in a public law case; it has to be adequate for every person materially affected. That is the point made in the amendment put forward by the noble Baroness, Lady Chakrabarti, although she modified her position on it slightly in addressing it today. Other parties affected need to be protected, not just because that is at the essence of public law but because those other parties are, by definition, not before the court and not personally represented when the judicial review application is made.

The Minister’s approach that judges will not regard themselves as bound by the presumption because they have this wide discretion, I suspect, underestimates the loyalty to the law felt by judges. Where there is a paradigm case that calls for the exercise of the power, under the compulsory wording of the Bill judges will strive to give effect to the will of Parliament and the principle that the law is there to be obeyed. That is embedded in their DNA. Therefore, the Government’s view that judges will bend over backwards to find ways around the presumption so as to avoid legalising unlawful acts of government is deeply cynical. It may shed significant light on the Government’s view of the rule of law, but it is completely inaccurate about the approach of the judges, who will apply the presumption if it becomes law lawfully and in so doing will considerably weaken the effect of judicial review.

--- Later in debate ---

[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.

[Lord Judge (CB)]

Why is the interests of justice test not quite sufficient for your purposes?

[Lord Wolfson of Tredegar (Con)]

I think I replied to that point in the previous group. The interests of justice test is subsumed here because you can use these remedies only where there is no good reason not to do so; in other words, if there is a good reason not to do so, you cannot use the remedies. Therefore, necessarily, every time you are considering whether to use the remedies, it is in the interests of justice to do so.

If I may repackage the noble and learned Lord’s question, it really is: why not just say, “in the interests of justice”, or have a freestanding discretion? That point was put by a number of members of the Committee and gets me back to my point that we want jurisprudence to develop, and we want the court positively to consider these remedies. This is not least because there could be cases—the music copyright case is one—where these remedies would be very helpful to third parties, while the instant parties to the case may not be too bothered whether they are used or not.