My Lords, there would have been a time when the noble Lord, Lord Pannick, could have been here, but I think he is in the Supreme Court at the moment. In those circumstances, I hope that your Lordships will not mind my leading when I was looking forward to being junior counsel with regard to the submissions that the noble Lord, Lord Pannick, was due to make. I hope that my presence does not mean that I get it all wrong in this different capacity in which I now find myself.
I am reminded of a time many moons ago when I had to be at the same time in the Court of Appeal before Lord Denning and before Lord Widgery in the Divisional Court, in what are now called the Senior Courts. Having investigated the matter very fully, I came to the conclusion that the appropriate thing to do was to go before Lord Widgery and leave my pupil watching the situation in the Court of Appeal. As fate would have it, as normally happens in these situations, the matter came on in quite the opposite way from that expected and the pupil had to rise to his feet in the same way as I do now. Unfortunately, he did not appreciate which side he should be on and he made submissions to great effect before Lord Denning, which were diametrically opposite to what I was meant to be advancing on behalf of the Crown. Lord Denning was not at all put out by this. What he did was to say, “Those were very clear submissions, Mr So-and-so, but perhaps what you really meant to say was X, Y and Z”, and in that way justice was done.
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In my submissions now, I am very much concerned with the way that justice should be done to those who want to rely upon judicial review. What I have to say to the Committee with regard to Part 4 applies to the various provisions in it, all of which in some way operate on judicial review. Judicial review has been an area where what has happened with regard to procedure and practice has been a matter for which the judiciary has been responsible. It has tried to balance—successfully, I suggest—three different interests: those of the citizen, those of the Executive and those of the judiciary. The ability to perform the difficult task of operating as a judge in public law is quite different from the position of a judge who is hearing a private law case. In public law, the judge always has to remember that, while the
interests of the individual citizen making the application for judicial review are of the greatest importance, so are the interests of the public body which, in the case of the Government, has responsibility for governing the country.
Judicial review has therefore been tailored to have special protections for the Executive. In particular, there is the unusual requirement of permission to bring proceedings. Once proceedings are given permission to be brought, the whole process is heavily laden with discretions in the court. In this area, I make the general remark that it is not a very good idea for the legislature to intervene because it may not appreciate the full significance of the position with which it wants to interfere.
Clause 64 puts an obligation on the courts to take action if they come to the conclusion that it is highly likely that the outcome of the application,
“would not have been substantially different if the conduct complained of had not occurred”.
In many situations, the courts already regard that as an important matter to take into account and, in their discretion, will refuse relief—indeed, they will refuse permission to make the application—if they are of the view that the application is misconceived and it is not appropriate that it should go forward, even though there may be some technical reasons why it could be successful. Clause 64 has the effect of changing what is the court’s discretion to take that action into action which it must take. That is very different, because it would need to decide whether someone who has a remedy—that is the premise of Clause 64—should be turned away from the court even without having his case heard, as the refusal applies to the process of granting permission to apply for judicial review as well as judicial review itself. This would be very unfortunate. In particular, I do not think, with the greatest respect to the draftsman of Clause 64, that he had in mind the increasingly important jurisdiction of the High Court, on application for judicial review, to grant declarations.
In the case of a declaration, what the court does is to clarify the legal position. It may well be possible to have a case—I shall refer in a moment to one in which I was an advocate—where what is at stake is a matter of only a few pounds, but where the citizens in general will all be affected by a few pounds. We do not want, in that situation, to have more than one application; otherwise it is simply duplicating the work of the court. A single application will be made and the court will come to a decision. If the decision is in favour of the applicant, he may recover the few pounds to which I referred. The provision in Clause 64 would, it seems to me, make that impossible. It is clear from the Explanatory Note that the Government have in mind declaratory relief in this context. This illustrates why the proposal is most unfortunate. The position is one where the courts need to have flexibility, so as to do justice to the different parties, as I have indicated. The clause, unless the Minister makes it clear that I am wrong on this, will prevent that.
The case I had in mind to illustrate this was the case of Congreve v the Home Office, which involved television licences. Mr Congreve knew that the BBC was going
to put up the licence fee, so instead of waiting until his licence expired, he decided to apply for a licence early so as to pay the lower fee. He was successful, contrary to my efforts. Lord Denning explained that this was a position in which there was a clear breach of the law by the BBC and Mr Congreve should have his remedy. The BBC was influenced by the fact that it did not want Mr Congreve to give a lead to all the other citizens who would jump on the bandwagon and make applications in the same way, which would deprive the BBC of a substantial sum of money, but he did it himself and he is to be admired for doing so. The case is an example of how the rule of law is upheld by the courts even though the amount may, at first sight, seem trivial.
This is quite a common occurrence in planning cases, where applicants are bringing a case not only on their own behalf but on the behalf of many persons indeed. There is nothing exceptional about it. The Government should look again at their proposals for Clause 64 and, in particular, should not persist with seeking to insert that provision into the Act.
This is just an illustration of the faults that are exactly the same in the other provisions. The Government have taken on a task that they should not be performing. It was well understood in the courts that matters of practice and procedure are normally best left to the rule committee to handle. It would not make the sort of mistake that I have indicated. Especially when one is dealing with the remedy of judicial review, it is very important that one avoids tying the hands and discretion of the court so that it cannot come to the right answer in the case.
Other provisions are linked to Clause 64 and can be dealt with in the same way with regard to this group. One is the provision of information about financial resources. This is a very unusual provision in Clause 65. It requires information to be given by an applicant on an application for judicial review about his resources for bringing the proceedings. I do not understand why this was thought to be an appropriate matter to be dealt with in statute. If a judge hearing an application feels it is important to find out the financial resources of an applicant, he has plenty of powers to do that. There is no need for a statute. Why burden the application for judicial review in every case, as I understand it, with an applicant having to give information about his resources, even though it is not a matter which will arise in the particular case? There is no need for a statutory provision of some complexity to be placed on the statute book to deal with it.
The same situation arises with regard to Clause 67. Intervention by third parties—