Criminal Justice and Courts Bill

Lord Tebbit Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Tebbit (Con)]

My Lords, as the noble and learned Lord, Lord Irvine, was speaking, I was trying to cast my mind back to a certain event. I think the noble and learned Lord said that politicians should take action only after due and proper thought, and I seem to recollect an occasion when this House was impaired in its meeting because the Prime Minister had accidentally kicked the Lord Chancellor off the Woolsack. I wonder whether that was what the noble and learned Lord had in mind when he was speaking just now; certainly it is what came back to my mind.

I find myself concerned about a number of matters before us today. The noble Lord, Lord Pannick, talked about the “legality” of Ministers’ words and about “unlawful conduct” of Ministers. The noble and learned Lord, Lord Woolf, spoke of “unlawful actions”. That is all fine. I think that there should be the capability for judicial review in such circumstances. But those circumstances conform to my understanding of the only three grounds on which judicial review used to be granted: that the act or decision of the Minister or official concerned was contrary to law; that the act or decision was ultra vires; or that no reasonable man could possibly have reached such a decision.

I would be much happier if I could be assured—not only by my noble friend who will answer the debate, but by some of the distinguished lawyers who have spoken—that that remains the case. I have had the impression recently, when reading about some cases in which judicial review has been granted, that a judge has decided that a rather better decision might have been the one that he proposes to make now. I am glad that the noble and learned Lord, Lord Woolf, shakes his head at that, but I think that he understands a little of my anxiety, and that of a number of others. It seems to me that it would not be right for judges to substitute their judgment for that of officials or Ministers who lawfully took a decision.

Even worse, the noble Lord, Lord Beecham, quoted a judge who said that he thought that Parliament might not have the right to change the law that it had made. That seems a very peculiar doctrine. In that case, who does have the right to change such a law? Would it be the judges, or would it be, I do not know, a mob in the street, perhaps? Surely it is only Parliament, which has made a law, that has the right to change it.

The noble and learned Lord, Lord Woolf, spoke of the dangers of elected dictatorship. Of course those dangers are there. I do not like elected dictatorships, but in this country there is a very good mechanism for getting rid to them—at the next election. I would rather do it that way than have some judicial process for getting rid of them. I hope we shall hear no more talk about that, because I do not like unelected dictatorships either, even if they sit in law courts.

I have some very clear worries about the manner in which judicial review has developed in recent years. I hope that we will be able to come to a conclusion here, all of us, that we should go very firmly back to those three criteria alone and no others—no talk about judges perhaps deciding that there is an elected dictatorship and something should be done about it; otherwise, their places on their benches might be at risk.

[Lord Lester of Herne Hill (LD)]

My Lords, the House will be glad to know that there is a limiting factor on how long I can speak for, which is the state of my bronchial tubes; they are so excited by the subject that I am danger of choking altogether.

I am very glad to be able to reassure the noble Lord, Lord Tebbit, and I am particularly glad to follow the noble and learned Lord, Lord Irvine of Lairg. I remember when he had ceased to be Lord Chancellor and a Labour Government were tabling an obnoxious provision, I think to take away the rights of asylum seekers in the courts, and the noble and learned Lord simply put his name down to speak—that was all he had to do and the Labour Government saw the error of their ways and did the right thing.

I wish I could say the same of the present Government, whom I support within the coalition. They have had two warnings from two different committees, on both of which I serve: the Joint Committee on Human Rights, which has given two reports; and the Constitution Committee, chaired by the noble Lord, Lord Lang, five of whose members are members of the Conservative Party and, not as far as I know, dangerous radicals. One might have thought that the warning given by the Constitution Committee that, the judges having expressed their concerns, the Government should heed the warning, might have cut some ice within the Ministry of Justice and with Mr Grayling. I am very sorry that that has not been the case.

Part 4 places obstacles in the way of people seeking to challenge the legality of the actions of the Government and other public authorities. It interferes with the discretionary powers of the courts by placing handicaps in the way of public interest groups and their lawyers, and the ordinary woman and man in the street, in seeking to ensure that the Government and other public authorities act lawfully, fairly and rationally in accordance with logic and accepted moral standards of good government.

Judicial review is the process by which the courts enforce compliance by public authorities with the law. It is an appropriate and necessary judicial function because, as Lord Bingham pointed out in his great little book, The Rule of Law, the courts act as,

“auditors of legality: no more, but no less”.

Tom Bingham summed up the basic principle in the following way—and this I say to the noble Lord, Lord Tebbit, because even if he regards me as an unreliable Liberal Democrat, perhaps he will take it from Lord Bingham, one of our greatest judges, in his book—when he said:

“Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably”.

Those are the principles of administrative law in this country—no more and no less—and they remain as they were when Lord Bingham wrote and as they were 30 years ago.

[Lord Tebbit]

Who does my noble friend think should make the judgment as to whether the powers that were legally used were fairly used? Different people have different judgments about what is fair. That of the Liberal Democrats is very different from that of the Conservatives—indeed, it is sometimes different from that of the Labour Party.

[Lord Lester of Herne Hill]

I ask the same question of the noble Lord, Lord Tebbit. If he thinks that Ministers, not judges, should make the judgment, then we are in wholly different places. The answer to the question of the noble Lord is that in the end it is for Parliament to make the laws, it is for the Executive to administer the laws, but it is ultimately for the courts to decide and to declare what the law is when it comes to public law, as for any other kind of law.

It is important to emphasise, for the benefit of the noble Lord, Lord Horam, in particular, that there is no automatic right to judicial review. It has to be applied for. It is granted only if the administrative court is satisfied that the application raises a properly arguable case by someone with a sufficient interest—not a mere busybody—who has exhausted any effective alternative remedy, such as a planning appeal.

The application has to be made without inordinate delay. The concerns of the noble Lord, Lord Horam, about delay are, therefore, met by the strict requirements of the administrative court. If the application succeeds, the court has a broad discretion that the remedy is necessary and proportionate. It will not permit the procedure to be abused. It will punish any abuse of procedure with an appropriate cost order.

If, as the Justice Secretary contends,

“‘left-wing’ campaigners have exploited the process of judicial review to frustrate government initiatives”,

—dear me!—the courts have ample powers to ensure that judicial review is not abused, including making cost orders against those who abuse the procedure.

It is an ancient principle, probably going to back to Magna Carta, that under the common law, which is at the heart of our system, no one shall be judge in his own cause. In seeking to interfere with the powers of the courts, and to place obstacles and handicaps in the way of application for judicial review, the Justice Secretary and the other Members of the Government—Liberal Democrat as well as Conservative—are judges in their own cause. They have a political self-interest in what is in Part 4.

But this House is in a different position. We have a vital constitutional role in protecting the rule of law and the accountability in law of Ministers and of government departments and of all public authorities. The House has the opportunity this afternoon to fulfil that role by placing the wider public interest against party-political interest. That is why, though I do not enjoy being a rebel, if there are Divisions on any of these amendments in the name of the very distinguished supporters of this one, I shall cross the floor and shall vote with them.