Judicial Review and Courts Bill

Lord Pannick Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, the presumption in Clause 1 was a curious and misshapen thing—so much so that I did wonder when moving against it whether it was always intended to be the hunk of meat that would be thrown off the back of a sledge to distract the ravening wolves. But these things do not dispose of themselves and I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, to the Justice Minister, James Cartlidge, who is also my MP, and, before them, to the noble Lord, Lord Wolfson, for the good grace, courtesy and good sense with which they agreed to put it out of its misery.

I do not share the principled objection of the noble Lord, Lord Marks, to prospective-only quashing orders. The noble and learned Lord, Lord Brown, wrote about this in the Times and I respectfully endorse what he had to say. But I am pleased that the noble Lord agrees at least that these prospective-only orders, whose place in our law is confirmed by Clause 1, are at least mitigated by the removal of the presumption.

[Lord Pannick (CB)]

My Lords, may I pay tribute to the noble Lord, Lord Wolfson of Tredegar, on his resignation as Minister of Justice? He played a significant role behind the scenes in ensuring that the Government have made the welcome concession of agreeing to the amendment from the noble Lord, Lord Anderson, to remove the presumption. The noble Lord’s resignation has confirmed, if there were any doubt, his commitment to the rule of law. His resignation will be welcomed only by his senior clerk at One Essex Court Chambers in the Temple as he returns to the commercial Bar, as well as to the Back Benches.

On topics as diverse as the Cart jurisdiction and breastfeeding, the noble Lord’s contribution as a Minister was marked by his hard work, his eloquence, his ability to respond constructively to the concerns of other noble Lords, and his wit. He is an enormous loss to the Front Bench and I very much look forward to his Back-Bench contributions.

As I said in Committee, echoing the words of the noble Baroness, Lady Jones of Moulsecoomb, the only thing to be said in favour of Part 1 of this Bill, on judicial review, is that it could have been a great deal worse. I cannot work up any greater enthusiasm at this stage for these provisions. The Bill, in Part 1 on judicial review, is not quite as much of a damp squib as the efforts of a former Lord Chancellor, Chris Grayling, in his infamous Social Action, Responsibility and Heroism Act 2015—but it is a close call.

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

My Lords, I rise diffidently to agree wholeheartedly with the approach of the noble Lord, Lord Anderson, to this legislation. I strongly support Motion A; I cannot, I am afraid, support Motion A1 from the noble Lord, Lord Marks. I suggest that it would in fact compromise and complicate what is a valuable, new, flexible, broad power that gives a judge the ability to make whatever order he or she thinks is best calculated to do justice in the individual case, and to meet the problem that we have encountered over many years of not having any power to validate retrospectively anything that has happened in the past. I do not know whether anyone noticed the piece I wrote in the Times about my noble and learned friend Lord Hope’s Ahmed case, but that was a classic case in point which shrieked out for this new power.

So there it is: orders can now be made subject to whatever limitations or conditions the judge thinks right and appropriate, and I respectfully suggest that this is so much better than the approach of the noble Lord, Lord Marks, with whom I am almost always in agreement—but surely not on this. He prefers retrospective legislation, but how unwieldy, inflexible and incapable of being adapted to the individual case that is, and how unwelcome as a whole we consider retrospective legislation—so I support Motion A.