Criminal Justice and Courts Bill

Lord Mackay of Clashfern Excerpts

Monday 28th July 2014 Lords Chamber

[Lord Faulks]

I am grateful for that intervention. The noble Lord, Lord Ponsonby, makes a good point in the sense that a defendant might feel more confident if there was not such a wide age disparity between him and someone aged, say, over 75. The noble Lord reminds me that the upper age for judges is 70, so it is not unreasonable to restrict jurors to the age of 75.

[Lord Mackay of Clashfern (Con)]

I think that it is fair to say that the ultimate upper limit for judges is 75; that of course accounts for a good number of our noble and learned friends who are here today. The difficulty of fixing that limit was just the same as for jurors. The general view among the judiciary at the time, and I hope that it remains its view, was that 75 was a reasonable compromise because people—not everybody—over 75 become increasingly less able to perform the judicial function, which the jury function is, as the years progress. Therefore, you have to get some sort of balance, and 75 seems as good as any.

[Lord Faulks]

I am grateful for that contribution. My noble and learned friend states the difficult issue very well.

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[Lord Paddick (LD)]

My Lords, I rise briefly to speak to this amendment. It will become apparent very quickly that I am not a lawyer, and never have been, but I have been involved in one case of judicial review as a result of becoming a victim of phone hacking.

The fact that I was a victim of phone hacking became known to the police, but the police did not inform either me or other victims when that information came to their notice. As a consequence, together with others, we took the Metropolitan Police to judicial review on two counts: first, over its failure thoroughly to investigate phone hacking in the first instance; and, secondly, on its failure to inform those that it knew were either victims or potential victims of phone hacking to enable them to take steps to guard their privacy. The court found that whether the police should have investigated thoroughly the first time round was entirely a matter for the police. However, on the issue of whether the Metropolitan Police should have informed the victims of phone hacking, the court found that it was under a legal obligation to inform them. That important principle was therefore established through this judicial review.

Bearing in mind that by the time we brought the judicial review we had been informed by the police that we were victims of phone hacking, can my noble friend the Minister confirm that the outcome of that application would not have been substantially different for us? In other words, we already knew that we were victims, but we wanted to establish the principle that the police should have told us earlier. If Clause 64 were enacted, we may not have been able to bring that judicial review and establish the important principle that the police must inform victims of this sort of crime as soon as they become aware of it.

[Lord Mackay of Clashfern]

My Lords, I, of course, have nothing like the width of experience that has been spoken of already by a number of noble and learned Lords and other noble Lords. However, I have a certain amount of responsibility in connection with judicial review from quite an early stage.

Your Lordships will remember that the law of England originally provided for four rights, which were prerogative writs that had the effect of controlling the subordinate powers at the insistence of the High Court. That is because the High Court is a court of universal jurisdiction. The difficulties of these particular prerogative writs were gradually appreciated and, eventually, the judges decided that it would be a good idea to have a new form of procedure called judicial review. They ultimately incorporated it in a rule of court which, as I remember, was called Order 53, and that was the situation for some time. However, it was not long before the judges themselves decided that it was not good enough to have procedure of this kind depending only on an Order 53 rule of court. It was therefore important that this became statutory and that Parliament should have responsibility for the legislation which affects and controls the process of judicial review. It is therefore 100% clear that Parliament has authority to deal with this. That does not necessarily mean, of course, that any particular action proposed to Parliament by a Government is necessarily the best thing to do.

However, I would like to mention one or two aspects of this. The first is from the point of view of planning. I used to practise some planning work in the 1950s, 1960s and 1970s and in the planning legislation there was, I think almost from the start, always a provision empowering an applicant or a person aggrieved by a decision in the planning field to apply to the court. There were two branches of that: first, where there was no power to make the decision; and, secondly, where the decision was the result of a failure of process. I think that the current form is in the Planning and Compulsory Purchase Act 2004, where the second provision is,

“that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement”.

It is important to see that it applies where the interests of the applicant have been “substantially prejudiced” by a failure of procedure.

I think that that system worked well. In due course, of course, as a result of various decisions, including a decision of this House in its judicial capacity, in which I took part, it was held that judicial review was sometimes available even when there was a statutory form of appeal, and therefore judicial review started to be used in the planning field, notwithstanding the provision that I have just referred to. A number of cases came along, one of which the noble and learned Lord, Lord Woolf, will remember, when somebody was faced with a document at the beginning of a hearing before the inspector, and the inspector granted him an adjournment only until lunchtime. Lord Denning and his colleagues, notwithstanding the eloquent defence by Mr Woolf, as he then was, found against the Secretary of State. However, that is a success of the old form and the present form of statutory appeal.

In a more recent case at the Court of Appeal, the leading judgment was given by the judge who was the senior presiding judge in England in my time, Lord Justice Auld, who said, on dismissing the appeal:

“In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited— some might say abused—as a commercial weapon by rival potential developers to frustrate and delay their competitors’ approved developments, rather than for any demonstrated concern about potential environmental or other planning harm. By the time of the hearing of this appeal, as is often the case, the approved scheme in issue is clearly of a piece with—”

what was already there. So, the danger of judicial review as a means of trying to damage competitors was recognised. My noble friend Lord Horam has given a number of cases in which that has actually taken place. That warning was given a considerable time ago and I am delighted to hear that now—this is a fairly recent development—there is a Divisional Court in the High Court with expertise in planning able to deal with planning applications very speedily indeed. That is highly desirable.

The other thing I want to mention is that, when I was first in practice, we did not particularly think that we were not under the rule of law, although there was no judicial review. Another aspect of the law which was quite important was that there were finality clauses in most Acts of Parliament making the decision of the Minister or the authority final and unable to be upset by any judicial procedure. That was a fundamental protection for the Executive, for local authorities and so on—all sorts of bodies had that kind of protection. The Foreign Compensation Commission happened to be the one selected for trial and in Anisminic v Foreign Compensation Commission the judges found the way around this finality clause in such a way that these finality clauses have ultimately disappeared. Therefore, the scope for judicial review is very much greater than for the prerogative writs that were in position originally.

I was involved in one of the early cases on development of judicial review in respect of the standing of, or the right to bring, such a case. Certainly, there is an interesting issue in relation to some of the clauses in this part of the Bill about forming private companies simply for the purpose of promoting a particular judicial review in the hope of protecting perhaps fairly wealthy, not in any way impecunious, people from the possibility of costs. That is a development in relation to judicial review which I think requires consideration.

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[Lord Davies of Stamford]

I am listening with great attention to what the noble and learned Lord is suggesting. Is he proposing to put down an amendment to allow the court, notwithstanding the restrictions that are being imposed in this Bill, in the event of what is described as being an academic case in which the outcome is not likely to be very different one way or another for the applicant, nevertheless to proceed under those circumstances if its intention is simply to make a declaration? That is not provided for in the Bill at present. Is the noble and learned Lord proposing to put down on Report an amendment that would give that suggestion effect?

[Lord Mackay of Clashfern]

If that were necessary. I regard it as something that could happen under the existing clause because the outcome for the applicant could include a declaration, in my judgment. It is a question of whether the court thought a declaration appropriate. If it did, it could do so, notwithstanding the provisions of Clause 64.

[Lord Elystan-Morgan (CB)]

The noble and learned Lord, Lord Mackay, makes the very proper point that there is ample precedent for Parliament to deal with the issue of judicial review. Indeed, he traced historically how prerogative writs developed, how they were placed on an administrative basis and how, ultimately, they became the subject of specific legislation. One point must be made, however, and I am not sure that the noble and learned Lord did not touch upon it in his powerful address: that when legislation intervened in this area, it did not diminish to the slightest degree the rights of the individual, or, indeed, any of the relative positions in relation to the various powers that judicial review seeks to deal with equitably. In other words, the boundary was not moved a single inch.

My second point has already been touched on: it is about the rule of law. Many here will have read the excellent treatise by the late Lord Bingham, in which he reminded us that there are two boundaries in relation to the rule of law. The most obvious is whether a law has been technically and lawfully passed through both Houses of Parliament and received Royal Assent. However, Lord Bingham went on to make it perfectly clear that if a law was unconscionably wrong, even though it had proceeded through all those stages in a thoroughly proper and technical way, it would still be in breach of the rule of law.

The point that Lord Bingham makes is that there are two boundaries: one is the technical parliamentary boundary; the other, of course, is a boundary beyond that. Indeed, it is in that context that this whole debate is taking place. The boundary that we are talking about is the boundary of the inherent jurisdiction of the High Court, something which has been built up over many centuries and not spelt out by Parliament but which is nevertheless a very real and massive boundary.

If I am right—and I suggest that it most certainly is the case—that Clause 64 breaches that boundary and undermines it, there is a very strong case for changing it. That is the real relevance of the excellent debate that we have had today.

Many speakers have made the point about Clause 64 in the context where the result would have been no different. I would ask in how many cases the following situation applies. A party is elected to government after a hard-fought election. It has set out very clearly in its manifesto exactly what legal changes will be brought about in various fields of law. It will invoke procedures which are already set out in statute to make those changes. Those proceedings will, of course, involve consultation. However, every thinking person knows that that is something entirely chimerical. There will be consultation, yes, but the consultation will make no difference to the determination and resolve of that new Government to bring about that change. If you say that that consultation does not really matter, what can you do? You do not challenge the ultimate right of that party to bring about that legislation, but you can challenge the right of that party to make a mockery of the procedures of law. That is exactly what is entailed here.

Consultation does not, of course, mean that you have to weigh in the balance the views that are tendered to you, but it does mean that you have to look carefully at what is said and give a reasonable period and a reasonable prospect for people to be able to make such representations. The idea that those count for nothing is, I suggest, utterly inimical and utterly contrary to our concept of the law as we have it.