I am pleased to have an opportunity to take part in this debate, although several provisions in the Bill worry me intensely. The Bill has more to do with posturing on the part of the Government than with any real policy initiative. The Justice Secretary has presented it at a time when two other crime-related Bills are still awaiting Royal Assent. Indeed, some of its provisions seem to undermine those set out in the Offender Rehabilitation Bill, which is yet to reach the statute book.
Similarly, the Bill’s proposed reforms to judicial review, as set out in part 4, cut across provisions contained in the Immigration Bill—a point ably made by the Chair of the Home Affairs Committee. Most people would agree that there is a need to introduce a more robust process to weed out the unmeritorious cases, but we must be very careful not in effect to deny individuals
who really rely on it. Furthermore, everybody accepts that the review process is a vital component of a healthy democracy: the individual’s right to challenge the over-mighty and to secure justice in properly decided administrative law cases. We limit those rights at our peril.
I will quote from a very interesting article that appeared in last Thursday’s edition of The Times, penned by a Member of the other place, a very experienced Queen’s counsel who has taken judicial review cases on many occasions and defended Governments in such cases as well. He wrote:
“Clause 50 provides that courts and tribunals must refuse to allow a judicial review application to proceed to a full hearing if the defendant shows that it is ‘highly likely’ that the outcome for the applicant ‘would not have been substantially different if the conduct complained of had not occurred’. If the case does not proceed to a full hearing, the court must refuse any remedy to the applicant if that same test is satisfied.
The proposal is objectionable for constitutional reasons. The clause will instruct judges to ignore unlawful conduct and to do so in a context where the government itself is the main defendant.
All governments come to resent the power of the judiciary to identify and remedy unlawful conduct. But until now they have, with greater or lesser enthusiasm, recognised the value of what is central to the rule of law. After all, they will not be in power indefinitely…It tells the Government, and the world, that what has been done is unlawful. Ministers and civil servants know that they must change their conduct for the future, and they do so.”
He concludes the article by stating:
“Over the past 40 years, judicial review has helped to prevent abuse of power by governments of all complexions. It is ironic that judicial review now needs protection from a politician whose reforms would neuter its force by the use of political slogans that have no factual basis and are ignorant of legal and constitutional principle.”
Those are strong words from an expert in the field. I think that we would do well to take them on board and consider their purport.
The timetabling of the Bill is also a little confusing. Although it is having its Second Reading today, we must assume that its introduction has been orchestrated so that it will be carried over at the end of the Session, no doubt to make the Government appear proactive and to mask the fact that so few significant pieces of Government legislation remain.