Judicial Review and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[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.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

I am most interested in the way in which the noble Lord analyses this. Is he essentially saying that this Bill is giving too much power to judges—power that ought to be vested in Parliament—and that a judicial review reform of this nature goes far too far and that judges should not be allowed to have these powers in case they exercise them inappropriately?

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

It is a two-pronged attack. I do not believe that the judges should have the power to make lawful what they have already found is unlawful with retrospective effect. That means that prospective-only orders are, in principle, wrong. However, if there were a case for changing regulations or for altering government action so as to bring it within the limits that Parliament wanted, that is for Parliament; that is for legislation, as the noble and learned Lord, Lord Falconer, argued. It is not for the courts to say, “We find the act unlawful, but it is only going to take effect as unlawful for the future.” It is, in the example of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, an ex tunc approach; but an ex tunc approach, frankly, is right, whereas the removal of flexibility by ruling out the Part A power—the power to delay—would be a removal of flexibility, which would be unnecessary, and we support that. We do not support the presumption, but that is a different point.

The real important point, about retrospective charges and the points in Amendment 6, in the name of the noble Lord, Lord Ponsonby, is that they accept the unlawfulness—if that was the only amendment that was passed—but would go on to say, “You can rely on the unlawfulness as a defence in criminal proceedings and you can still apply for other financial remedies for judicial review, but the quashing order will only take effect prospectively.” That, in my respectful view, is to fudge the whole point of unlawfulness, and the universality and the universal application of judicial review, which lies at its heart.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the opening remarks of the noble Lord, Lord Marks—I too enter this discussion with some trepidation. I will first set out the Labour Party’s overall view, since the debate on this group has been fairly wide-ranging. We believe that the proposals for judicial review in Clauses 1 and 2, which we will come to in group 4, are regressive and uncalled-for. More especially, when many aspects of the justice system are in crisis, we do not believe that there is a need for this review in the first place. The Ministry of Justice is trying to fix something that is not broken, a point made by the noble Lord, Lord Beith. We believe that overall, the Government’s changes to the judicial review process will have a chilling effect on justice, deterring members of the public from bringing claims against public bodies and leaving many other victims of unlawful actions without redress. These are proposals that will make it harder for individuals to hold this Government to account. As a result, unlawful decisions made by this Government, or by any government or public body, will go unchallenged.

I put my name to Amendments 1, 4 and 5. The noble Lord, Lord Pannick, as ever, introduced those amendments very fully. The noble Lord, Lord Anderson, asked me about Amendment 3. In my brief, I am embarrassed to say, it says that Amendment 3 is consequential on Amendments 1, 4 and 5; I have had a look at it while the debate has been progressing, and I cannot add any more to that. It may be that what I have been provided with is wrong in that respect.

Amendment 6 would, as set out in the explanatory statement,

“protect collateral challenges by ensuring that if a prospective-only or suspended quashing order is made, the illegality of the delegated legislation can be relied on as a defence in criminal proceedings. This would prevent individuals from being criminalised under defective and illegal ministerial powers.”

The noble Lord, Lord Faulks, said that he did not think that the problem existed. It would be very useful if the Minister could confirm that he too does not think that the problem exists, because, in a sense, it is an inquiry about whether there is any potential for this problem existing. It would be helpful if the Minister were to confirm what the noble Lord, Lord Faulks, has said.

My noble and learned friend Lord Falconer entered into a very interesting debate with the noble and learned Lord, Lord Hope, about the development of suspended quashing orders through common law and whether that was appropriate. My noble and learned friend was very much against proposed new subsection (1)(b); he thought it was quite wrong to give power to judges to, effectively, change the law unilaterally and retrospectively. He argued very strongly that that was not the case.

That point was dwelled on by a number of noble Lords. It is not the point, really, that comes out in this group. We may return to some of the elements which were discussed on that point, but as I said, I enter this discussion with some trepidation, as I understand the amendments in my name—Amendments 1, 4 and 5—much more clearly. We will be debating further amendments to quashing orders in the next group, where we can further look at other prospective amendments. For now, I lend my support to the amendments in the name of the noble Lord, Lord Pannick.

--- Later in debate ---

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

I hesitate, my Lords, to speak again. I feel that so much of what has been said has been dancing on the head of a pin. I have to say that I have come to see new subsections (1)(a) and (1)(b) in new Section 29A in Clause 1 not as dramatically different things but rather as a continuum. They cover a spectrum; indeed, there is an overlap in between them, in the middle. There is no question here of subsection (5), to which the noble Lord, Lord Pannick, objects so strenuously—the one about being treated, and so forth. It is always subject, be it noted, to new subsection (2) of new Section 29A. Any of these orders under new subsection (1)—in other words, whether it is an order under new subsection (1)(a) or (1)(b)—can be made subject to conditions. Those conditions clearly would control the extent to which there is to be any degree of retrospectivity or retroactivity, call it what one will.

I am a huge admirer and respecter of the noble Baroness, Lady Chakrabarti, but I do not see this as being, so to speak, comparable to Parliament infinitely rarely passing legislation retroactively. We must always remember, must we not, that judicial review is, at the end of the day, a discretionary remedy; you do not actually have to make these orders anyway. I still see this, as the Minister would urge, as a tool in our toolbox, giving us the maximum flexibility and discretion to do what justice requires to all—which includes, of course, to those who are not in the courtroom, who do not have legal aid, and all the rest of it. With criminal convictions—taxation and things—one trusts and assumes that the court is going to behave correctly. In the Percy and Hall case, with the good lady trespasser and PC Hall who was being sued for damages for having arrested people who on the face of it were invading this territory, contrary to apparently valid by-laws, I pointed out in the judgment that, if and insofar as she had actually had criminal convictions, of course they would be set aside. But that is merely an aspect of judges behaving, as one hopes and believes they will, in a judicial manner.

So I respectfully continue to support this clause. I said at Second Reading that I was agnostic or entirely relaxed—I think that was the term used by the noble Lord, Lord Anderson—as to whether it is “may” or “must” in new subsection (9), and I remain so. “Must” simply urges the judges to give attention to this new tool in their armoury or toolbox. But they do not have to, and they will not, unless by all the conditions that they wanted to impose, they have made it clear that what they are doing will not be contrary to justice.

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

My Lords, this group of amendments, tabled by the noble Lord, Lord Ponsonby, is designed to take the sting out of the provisions in Clause 1, both as to the circumstances on which suspended or prospective-only quashing orders may be made and as to the way in which the discretion should be exercised. If passed, the amendments would each mitigate the damage which in my view is inflicted on the rule of law inherent in Clause 1. However, if all were passed, they would still by no means eliminate it. As has been pointed out, the worst part of Clause 1—in a sense, the elephant in the room of the first two groups—is the presumption, which we shall come to in the next group, which has been spoken to by the noble Baroness, Lady Jones of Moulsecoomb, and the noble and learned Lord, Lord Falconer, and which is, I suspect, opposed by the overwhelming majority of those who have spoken. The noble Lord, Lord Anderson, spoke to it in the last group, and said that his support for the prospective quashing-order power was conditional on the removal of the presumption.

I suggest that there is also a flavour to Clause 1 that is inherently offensive. We are faced with a proposal that not only permits the suspension of a quashing order and the retrospective validation of unlawful acts—and we accept the power of suspension—but dictates to the court, by new subsections (8), (9) and (10), how the court should exercise its discretion. Once again, I have to say that I am impressed but dubious about the optimism expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that the Government are concerned only to give judges tools in their toolbox which they would not use, and that they can exercise their discretion in any way that they wish, because that is not actually how these new subsections work—and they are wrong in principle to dictate the way in which the discretion is exercised. The court when considering judicial review—

[Lord Faulks (Non-Afl)]

I thank the noble Lord for giving way. Of course, new subsection (8)(f) refers to

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

So a court can decide that there are other matters that it thinks are important. This is not restricting or fettering the discretion of the court. Why is it so offensive?

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

It is absolutely right that the court can consider any other matter, but it must consider all the factors in new subsection (8)(a) to (8)(e). That is mandating the court where some of those factors may not be of any interest to the court at all. The noble and learned Lord, Lord Falconer, was right to point out that there is a potential conflict between the factors in subsection (8)(c) and (8)(d). For Parliament to be telling judges how they should exercise their discretion and what factors they should have regard to without giving them the option of disregarding some factors is wrong.

The court is exercising, as we all know, a supervisory jurisdiction over executive action or the claimed abuse, or excess, of delegated powers. The noble Baroness, Lady Chakrabarti, was right to argue that the way in which judicial review has worked in practice—and I suggest that it is the most important development in civil or administrative law over the past 50 years, above any other development that we have had—is that the judiciary, the Executive and Parliament work not exactly together but in balance, so that the powers are exercised in accordance with the law. With respect to what the noble Lord, Lord Faulks, says, it is inappropriate and regressive for the Executive to tell Parliament what factors they should consider when performing that supervisory role. The courts should be left to consider executive action in accordance with the law passed by Parliament and to grant remedies accordingly. They do not need, and should not be tied down by, restrictive provisions that prevent them doing justice taking into account factors that they think are important.

Amendment 2, moved by the noble Lord, Lord Ponsonby, would at least limit the exercise of the provisions in Clause 1 to powers where the court was satisfied that it would be in the interests of justice to do so. I suspect that that amendment will be opposed on the basis that it would introduce an unnecessary fetter on judicial discretion—and I suggest that that is entirely ironic, because the whole of new subsections (8), (9) and (10) are precisely targeted at fettering the courts’ discretion, and it is to that that we object. It is also ironic that, if passed, this would be the only mention of the interests of justice in the clause.

Amendment 7 would make the new subsection (8) factors permissive, rather than mandatory. Therefore, it removes the point that I made in answer to the intervention of the noble Lord, Lord Faulks, that the court must consider factors which have an inherent conflict.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

Yes and no, in the sense that this gets us into the argument about the presumption, because the presumption applies to only these two remedies. To that extent, the point made by the noble and learned Lord is correct: that is the nature of the presumption, which we will get to in the next group. We want the court to specifically consider whether these remedies are appropriate and to use them, as the ending of new subsection (9)(b) says,

“unless it sees good reason not to do so.”

Because these are new remedies, we have set out a list of non-exhaustive factors which the court must consider. These are the factors in new subsection (8)—and it is expressly non-exhaustive in new subsection (8)(f). I agree with the noble and learned Lord that, as he put it, these are important considerations. However, we want to encourage consideration of their use; we are certainly not mandating their use in any case.

The other thing we want to do, by putting these factors in the Bill, is to provide consistency in the jurisprudence from the start as to how the remedies are used in the cases which come before the court. I remind the Committee that we consulted on the sort of factors that should be included in the list. We received some very useful contributions in response to that consultation. However, the “must” in new subsection (8)—which is contrary to the proposal in Amendment 7 before the Committee—requires the court to consider each of the factors in the list. Coming to the point made by the noble Lord, Lord Marks of Henley-on-Thames, the “must” does not require the court to find that every factor in the list applies. It does not require the court to say that all the factors are relevant in the instant case. The court may consider that some of these factors in the case before it are not relevant at all; some might have very limited weight or only marginal relevance. All the court must do is to consider them. As the noble Lord, Lord Faulks, pointed out, the court may add to its consideration absolutely anything it wants under new paragraph (f).

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

I am grateful to the noble Lord for giving way, but is that right in relation to new subsection (8)(c) and (d)? The court must have regard to the interests or expectations of persons who would benefit from the quashing and of persons who have relied on the impugned act. There is nothing voluntary about that. Those interests may be in conflict. Is it right that the court should always need to have regard to those interests?

[Lord Wolfson of Tredegar (Con)]

First, they may not apply at all, because there may, in a particular case, not be any person who would benefit from, or has relied on, the quashing. Secondly, the court must have regard to it, but only having regard to it, the court can give it such weight as it deems appropriate. Absolutely, some of these matters may be in conflict. That, as we have heard, is nothing novel in the field of judicial review when the court must consider what remedy to issue in every case. Indeed, it goes beyond judicial review. There is nothing new in principle here at all. What we are doing is setting out factors which the court should have regard to. The court can place such weight as it wants on any of these, and the court can have regard to any other factors as well.

--- Later in debate ---

[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.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by noting that my noble friend Lady Chakrabarti said that Amendment 14, to which I have my name, is a probing amendment and I think that she rightly said it is less preferable to Amendment 13 if we can clear up the element of new Section 29A(1)(b) about removing retrospective quashing. I agree with her point on that.

I want to address a different point. It was actually raised in the House of Commons by the government Minister at the time when he talked about unintended consequences. I will read out the briefing I have on this. In Committee, the Minister suggested that limiting the retrospective effect of remedies could mitigate the potential negative and unintended consequences that some public interest judicial reviews could have. For example, if a statutory instrument concerning social security is quashed, immediately it could remove all the social security protections provided for in that statutory instrument because they would no longer have any legal effect. But the argument is not convincing. The mere fact that some judicial reviews could potentially produce unintended consequences does nothing to argue in favour of a presumption. I was amused by the noble Lord, Lord Anderson, picking up that the noble Lord, Lord Wolfson, referred to a so-called quashing order. In the vast majority of cases, a court will not issue a quashing order in any event. In most cases, a court merely declares a statutory instrument to be unlawful and leaves it to the Government to amend the instrument in a way thought necessary by the Government. Indeed, even where human rights were violated between 2014 and 2020, the courts have quashed only four statutory instruments out of 14 successful challenges.

So we are not talking about very many cases and the points made by the noble Lord, Lord Anderson, and in support of his amendment, I think, are absolutely right. I shall listen with interest to the Minister’s response.

--- Later in debate ---

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

My Lords, if I may, I shall speak first to my Amendment 20, to create an exception to the ending of Cart JRs in cases where the refusal of permission to appeal the decision of the Upper Tribunal

“is likely to lead to the deportation of the applicant to a country where the applicant is likely to be tortured or subjected to inhuman or degrading treatment”.

In such cases, the Cart JR of that refusal is the last hope that an applicant has. If the refusal of permission is wrong in law, I argue that in such a case the decision to refuse permission should not be exempt from review.

These cases are not academic; the injustices are very serious. In the case of G and H against the Upper Tribunal and the Home Secretary in 2016, reported in EWHC 239, Mr Justice Walker considered the case of a Nigerian woman, G, who was a victim of FGM and sex trafficking, who also had a child, H.

The Home Secretary’s decision to deport G and H was appealed to the First-tier Tribunal. It was common ground that, before coming to the UK, G had been the victim of FGM and sex trafficking. The Upper Tribunal dismissed an application for permission to appeal the FTT’s decision. That decision was challenged on an application for JR and the High Court gave permission for a review and found that the decision refusing permission should be quashed, both on grounds of a failure of procedural fairness in the Upper Tribunal decision and that the Upper Tribunal’s refusal of permission to appeal

“involved a material misunderstanding or misapplication of the law.”


In a Scottish case last year of CM v Secretary of State for the Home Department—2021 Court of Session Inner House Cases 15—the Inner House of the Court of Session, on a judicial review application, overturned a decision of the Upper Tribunal refusing permission to appeal an order of the FTT. In that case, the petitioner was a Venezuelan who came to the UK with his wife and young son in 2017, seeking asylum after his friend had been shot in the face by members of the Venezuelan armed forces while they were protesting together. The petitioner had been a witness to the shooting and the security services who had shot his friend knew he had been a witness and had threatened him with dire consequences if he reported their involvement in the shooting. In overturning the refusal, the Court of Session held that the Upper Tribunal had misapplied the law and misunderstood the effect of the evidence.

We know that the vast majority of Cart JRs—92.4% from 2013 to 2020—involve immigration and asylum cases. We also know that a very high proportion of those involve deportation orders and that those orders are often to countries where the country guidance issued by the UK Visas and Immigration section of the Home Office indicates that there is a very high risk of maltreatment on return, not necessarily by the authorities—although often they may be the source of the danger or condone it—but often by traffickers or criminal elements within the countries concerned.

The Government’s arguments—and those of the noble Lord, Lord Faulks, and his committee—in favour of Clause 2 rest largely, first, on the high resources in money and judicial time said to be consumed by Cart JRs and, secondly, on their apparent low success rate. The noble and learned Lords, Lord Falconer and Lord Etherton, have answered conclusively both the points relating to money and judicial time.

As to success rates, it is true that there have only been nine High Court decisions in favour of the applicant on Cart JRs. However, there have been only 13 decisions made at hearings over the relevant period, so 70% of those that have gone to a hearing have succeeded. That puts into perspective the level of success or failure of these JRs. The high failure rate overall is, of course, a reflection of the very high bar that applicants must surmount as a result of the decision in Cart before they get permission to apply for JR.

That explains why, of the balance of nearly 6,000 applications that reach the permission stage, only 6% of 366 were granted permission. The other 94% were refused permission, almost all on the papers. Of the 366 granted permission, 336—approximately 92%—were closed without a hearing, and many of those will have been settled. We do not have the exact statistics on settlement, but I invite the Minister to write to me before Report setting out how many of the applications where permission has been granted have been settled, how many have involved deportation orders, and in how many cases such deportation orders have not been implemented as a result of a challenge being lodged.

I have also added my name to Amendment 19 in the name of the noble Lord, Lord Pannick, which would permit Cart JRs where the Upper Tribunal acts in reliance on a fundamental error of law. I agree with him that there is no justification for a distinction between a fundamental procedural defect and a fundamental error of law. The noble and learned Lord, Lord Thomas, put the same point forcefully when he explained how judges often ignore a fundamental point of law or at least lead themselves to the belief that it does not exist when the facts are strongly one way.

No doubt the Minister will argue that the use of “fundamental” is elastic and that there will be cases where it is open to argument whether there is an error of law which is fundamental. That may be, but judges are very used to considering and determining questions of degree, and it is not hard to leave this one to them. I draw support for that point from the preceding exception in the subsection where

“the Upper Tribunal is acting or has acted … in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.”

If the judges are to determine what constitutes a fundamental breach of natural justice, they can properly be asked to consider what constitutes a fundamental error of law.

Before I turn to the question of whether Clause 2 should stand part of the Bill more generally, I mention that I support the amendments spoken to by the noble Lord, Lord Ponsonby, for the reasons he gave.

I oppose the clause altogether for two fundamental reasons. First, I am simply not persuaded that the reasons for removing the Cart supervisory jurisdiction, limited as it has been by the decision in Cart itself—as pointed out by the noble Baroness, Lady Jones—justify this step. The Government’s argument starts by accepting that the ending of the jurisdiction will cause injustice in some cases. That is not acceptable. I repeat that these are serious cases. What is more, they involve an important principle that decisions should be made lawfully. The limitations on the Cart jurisdiction fully take account of the fact that the Upper Tribunal is an independent specialist tribunal, often presided over by a High Court judge, and that its jurisdiction should not be lightly usurped by interference from the High Court. But usurpation should not be confused with supervision, and I believe the decision in Cart got the balance right. Even if the Government’s presentation of the figures on cost and success rates are exaggerated, they are presented in a one-sided way that does not give sufficient weight to the importance of the issues of principle at stake.

Secondly, as I indicated at Second Reading, I fear that the Government are using Clause 2 as a stalking horse for other ouster provisions in future; this point was taken up by the Minister when I made it. On any view, this is an ouster clause. I see that the Government are trying out new categorical and, they assume, bomb-proof—or at least judge-proof—drafting for this clause in subsections (2) and (3). I note that the Government’s press release indicated that they see these subsections as a template for ouster clauses in the future.

With a few limited exceptions, such as proceedings in Parliament, we on these Benches are against ouster clauses, because they hand power to the Executive to act contrary to law and outside the limits of what the law permits the Executive to do. In that way, they are inimical to the rule of law. In this Bill, I see the Government as having picked a soft target, because this concerns, they say, the ending of challenges to decisions of senior tribunals refusing permission to appeal. However, the drafting of subsections (2) and (3) could be used to frame other exemptions from challenge to Executive action, more unprincipled and more dangerous, in the future. This Bill would then be available to be relied upon as a precedent in the future for such ouster clauses. We should not underestimate the power of precedent. It is a useful tool for lawyers and drafters alike, but in the wrong hands and in the wrong place, precedent can be dangerous for principled lawmaking.

That is why I am attracted to Amendment 23 in the name of the noble and learned Lord, Lord Etherton, which proposes a compromise which does not risk future use as a template. The noble and learned Lord’s proposal that there should be no appeal from a decision of a supervisory court on a Cart JR, but that supervisory jurisdiction should be retained, has much to commend it, but I agree with the proviso proposed by the noble Lord, Lord Trevethin and Oaksey, and supported by the noble Lord, Lord Pannick. That formula would be far less amenable to misuse in later legislation to exempt government action or decision-making from judicial supervision. That protection is not afforded by the present Clause 2.