I regret the tone of the hon. Member for Hammersmith (Mr Slaughter), which fell beneath the standards the
House is entitled to expect on so important a matter. The tone was cynical and frankly insulting to those of us on the Government Benches who have spent many years of our lives fighting for the rights of individuals in the courts.
I should, before I begin, draw the attention of the House to my entry in the Register of Members’ Financial Interests. I appear in courts, specifically in the administrative court, quite frequently. [Interruption.] I hear the hon. Gentleman, from a sedentary position, hurling yet another insult. I do not know what he was like in the legal profession, but if he won as few arguments by his gracelessness and charmlessness as he is winning this evening, no doubt he switched professions with very good reason indeed.
In substance, some of the points the hon. Gentleman makes—they are not, I think, his; he is merely puppeting and gibbeting the points made by his betters and those more equipped than he to make the criticisms—are, I have to say, correct in the substance of the matter. That is why I say to the Secretary of State that, although one cannot always choose one’s friends in this House on specific topics, I am extremely troubled by what he is introducing. I sympathise and understand the frustration he feels with the industry, it may well seem to those in charge of the Executive, that judicial review has become. I understand that, but my concern is that the measures my right hon. Friend is introducing are not well targeted or adjusted to the mischief he is seeking to suppress.
One of the examples I give is the provision to introduce a likelihood test as to the outcome of any judicial review. The problem with this measure is that it does two things, unintended no doubt in their consequence by the Secretary of State. First, it will turn permission hearings, and substantive hearings if permission is granted, into an immensely detailed and cumbersome process of trawling through fact and evidence so as to equip the judge to take a decision on whether it was more likely than not that the decision would have been taken anyway, and in order to demonstrate that it would have been taken anyway if the flaw had been identified by the judge. The presupposition is that the judge has identified a technical flaw, as my right hon. Friend would call it, either in consultation, natural justice or perhaps even discrimination. The public authority will then seek to justify its position by saying, “Well, it would have made no difference and you, the judge, on all of the evidence, can take the view yourself that this would have made no difference.” That converts the judge into the decision-maker.
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This is the second point that troubles me: not only will it become a cumbersome fact-heavy process, which judicial review is not intended to be and most judges fight very hard to ensure that it is not, as a consequence of the Secretary of State’s amendment; it will place the judge much closer to being a decision-maker on these matters that ought to be for the Executive. Judges generally observe, and they should, a long-stop position. It is only if the decision is unlawful in that it is irrational, perverse, procedurally improper or taken for extraneous motives. That is a very high bar, but the Secretary of State’s amendment would lower that bar. It would put the judge in the position of being much closer to the decision-maker. In fact, it transgresses a very important constitutional principle, which is that the judge should
not get involved in examining the merits of a decision. He is looking only at whether it is irrational, something of which the bar is so high that it is unlikely and that is why so many cases fail. If one asks the judge to make a decision on whether it is probable that the decision would have been taken anyway, one immediately introduces him into the arena of the merits and the facts. That will cause an avalanche of new evidence to be submitted and will mean that the judge starts to get much closer to making decisions on the merits and the facts. That is why I am troubled by the Secretary of State’s amendment.
If it were the case that minor technicalities of the kind the Secretary of State characterises were habitually accepted by judges, I would understand the problem. However, with respect to the Secretary of State, that is not my experience. Certainly, cases may be brought on that basis, but minor technicalities lead to the decision being defective. In my experience those arguments are very soon rebutted, but the Secretary of State has a perfectly right point that there is a case for accelerating judicial review and creating a much more robust system for allowing those kinds of cases to be winnowed out earlier.
The second matter I want to address relates to the interveners. The Government’s original position did trouble me and I think the new provisions are an improvement. I have to say that I found the remarks from the Opposition Front Bench quite surprising. It seems to me that there has been a genuine effort by the Government to move in the direction of those who had real concerns. I do not perceive the risk to be as great as the extraordinary and extreme language adopted by the Opposition proposed. What is being suggested here is not unreasonable, provided that it is interpreted broadly and generously by the courts, as no doubt it will be. What it suggests is that an intervener must effectively have wasted the court’s time. In other words, the intervener must have been of no assistance, or no significant assistance, to the court: that he has targeted his submissions where the court is not helped by them, he has behaved unreasonably, or, alternatively, has taken on the main function of applicant in those circumstances. While the provisions are broad, I think the courts can be trusted to interpret them in favour of bringing meritorious claims, and I would have no problem going into the Lobby with the Secretary of State in that respect.
I wonder if the Secretary of State will have the opportunity to make further remarks on this subject, however, because at the moment I cannot give him my support in the Lobbies on matters relating to the earlier clauses, specifically the “highly likely” clause. The inevitability test the courts have previously adopted drew an important constitutional line that he is asking them to cross. The clause will create pragmatic difficulties in the courts and mean that flagrant and absolutely unacceptable behaviour by the Executive could be condoned by saying, “Well, it made no difference.” There are times when courts ought to mark a fundamental lack of due process.