Tribunals, Courts and Enforcement Bill [HL]

In speaking to Clause 132 stand part, I should also like to draw your Lordships’ attention to Clause 17 which raises the same issue, as I indicated when we discussed Clauses 15 to 20 stand part. The noble Baroness will recall my observations about Clause 132 on Second Reading, in particular my concern that the clear distinction made between the High Court in its role as a reviewing court and in its role as a court of appeal would be in danger of being confused by the Government’s draft. In response, the noble Baroness drew my attention to two matters—the work that the Law Commission has done on this matter and a revision in the civil rules of procedure of the High Court. I have since then had the opportunity to look at both these publications. I note that the Law Commission also produced a consultation paper. In paragraph 13.2, the Law Commission addresses itself in terms to the danger of confusion between review and appeal. It was plainly a matter that it had in mind when it considered whether a clause drafted something like Clause 132 would be appropriate. The Law Commission’s conclusion, as I understand it, is that there are very narrowly defined circumstances in which Clause 132 might be valuable to our legal system. It makes one very important qualification in paragraph 8.16 of its report. It says that in the case of decisions by administrative authorities such as Ministers and regulatory bodies, the need to make it clear that the exercise of the judicial review jurisdiction is a supervisory one means that it does not recommend in those cases a power of substitution. It does, however, consider that different considerations apply to courts and tribunals. It goes on to recommend that in the case of decisions by an inferior court or tribunal, the review in court should be empowered to substitute its own decision for the decision to which the application relates, provided that there was only one lawful decision that could be arrived at and that the grounds for review arose out of an error of law. Bearing those passages in mind, I turned to Clause 132. I have two questions about it. First, new subsection (5)(a) refers to remitting, "““the matter to the court, tribunal or authority””." I suggest to the Minister that that new subsection goes further than the Law Commission recommendation. That recommendation suggests to me that the text ought to stop after ““tribunal””. I absolutely accept that the decision in question to which new subsection (5A)(a) refers relates only to a court or tribunal, which further confuses me. I submit that if the Government are going to persist with Clause 132, about which I still retain reservations, it should certainly be made clear that the clause should apply only to decisions of a court or tribunal, and plainly to an error of law made in them. Secondly, I submit that it should be made absolutely clear in the Bill not only that the court or tribunal could have reached only one decision, but that in reaching that decision the reviewing court should in no circumstances be influenced by the merits of the case. I have one further matter to draw to the Minister’s attention: the amendment to the civil rules of procedure in Rule 54.19. I have been trying to identify a date on which this revision was made, but unfortunately have not yet succeeded in doing so. Perhaps the Minister will be able to help me on that between now and Report. What puzzles me is that the words used in this rule are quite different from the words that the Government are seeking to employ in the Bill, which states simply that where the court considers that there is no purpose to be served in remitting the matter to the decision-maker, it may, subject to any statutory provision, take the decision itself. If the Bill becomes law, the rule will then be subject to that statutory provision. At the moment, however, it appears that the civil procedure rules now contain a provision that goes rather wider than Clause 132. I should be most grateful if the Minister could say something about that as well.