My Lords, I, of course, have nothing like the width of experience that has been spoken of already by a number of noble and learned Lords and other noble Lords. However, I have a certain amount of responsibility in connection with judicial review from quite an early stage.
Your Lordships will remember that the law of England originally provided for four rights, which were prerogative writs that had the effect of controlling the subordinate powers at the insistence of the High Court. That is because the High Court is a court of universal jurisdiction. The difficulties of these particular prerogative writs were gradually appreciated and, eventually, the judges decided that it would be a good idea to have a new form of procedure called judicial review. They ultimately incorporated it in a rule of court which, as I remember, was called Order 53, and that was the situation for some time. However, it was not long before the judges themselves decided that it was not good enough to have procedure of this kind depending only on an Order 53 rule of court. It was therefore important that this became statutory and that Parliament should have responsibility for the legislation which affects and controls the process of judicial review. It is therefore 100% clear that Parliament has authority to deal with this. That does not necessarily mean, of course, that any particular action proposed to Parliament by a Government is necessarily the best thing to do.
However, I would like to mention one or two aspects of this. The first is from the point of view of planning. I used to practise some planning work in the 1950s, 1960s and 1970s and in the planning legislation there was, I think almost from the start, always a provision empowering an applicant or a person aggrieved by a decision in the planning field to apply to the court. There were two branches of that: first, where there was no power to make the decision; and, secondly, where the decision was the result of a failure of process. I think that the current form is in the Planning and Compulsory Purchase Act 2004, where the second provision is,
“that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement”.
It is important to see that it applies where the interests of the applicant have been “substantially prejudiced” by a failure of procedure.
I think that that system worked well. In due course, of course, as a result of various decisions, including a decision of this House in its judicial capacity, in which I took part, it was held that judicial review was sometimes available even when there was a statutory form of appeal, and therefore judicial review started to be used in the planning field, notwithstanding the provision that I have just referred to. A number of cases came along, one of which the noble and learned Lord,
Lord Woolf, will remember, when somebody was faced with a document at the beginning of a hearing before the inspector, and the inspector granted him an adjournment only until lunchtime. Lord Denning and his colleagues, notwithstanding the eloquent defence by Mr Woolf, as he then was, found against the Secretary of State. However, that is a success of the old form and the present form of statutory appeal.
In a more recent case at the Court of Appeal, the leading judgment was given by the judge who was the senior presiding judge in England in my time, Lord Justice Auld, who said, on dismissing the appeal:
“In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited - some might say abused - as a commercial weapon by rival potential developers to frustrate and delay their competitors’ approved developments, rather than for any demonstrated concern about potential environmental or other planning harm. By the time of the hearing of this appeal, as is often the case, the approved scheme in issue is clearly of a piece with—”
what was already there. So, the danger of judicial review as a means of trying to damage competitors was recognised. My noble friend Lord Horam has given a number of cases in which that has actually taken place. That warning was given a considerable time ago and I am delighted to hear that now—this is a fairly recent development—there is a Divisional Court in the High Court with expertise in planning able to deal with planning applications very speedily indeed. That is highly desirable.
The other thing I want to mention is that, when I was first in practice, we did not particularly think that we were not under the rule of law, although there was no judicial review. Another aspect of the law which was quite important was that there were finality clauses in most Acts of Parliament making the decision of the Minister or the authority final and unable to be upset by any judicial procedure. That was a fundamental protection for the Executive, for local authorities and so on—all sorts of bodies had that kind of protection. The Foreign Compensation Commission happened to be the one selected for trial and in Anisminic v Foreign Compensation Commission the judges found the way around this finality clause in such a way that these finality clauses have ultimately disappeared. Therefore, the scope for judicial review is very much greater than for the prerogative writs that were in position originally.
I was involved in one of the early cases on development of judicial review in respect of the standing of, or the right to bring, such a case. Certainly, there is an interesting issue in relation to some of the clauses in this part of the Bill about forming private companies simply for the purpose of promoting a particular judicial review in the hope of protecting perhaps fairly wealthy, not in any way impecunious, people from the possibility of costs. That is a development in relation to judicial review which I think requires consideration.
5.30 pm
The idea and doctrine of judicial review is extremely important and very precious. When I was responsible for altering—or proposing to Parliament, which is the correct way to say it, I think—the jurisdiction of various courts, I was strongly of the opinion that judicial review should remain in the High Court. It has remained there, except that the top tribunal now
has the power in certain cases to use judicial review. However, we have to be conscious of the fact that judicial review, excellent as it is, is capable of being abused. Lord Justice Auld recognised that in connection with planning, but it is not only in connection with planning that that sort of consideration may arise.
The noble Lord, Lord Adonis, who was a Minister in the previous Government and is well known to your Lordships, has written about judicial review in connection with the academies policy of the previous Government. His book is called Education, Education, Education, which is a war cry that will be fairly instantly recognised. The subtitle is Reforming England’s Schools. On page 78, he writes:
“However, if Parliament was navigated quickly and unobtrusively, the same was not true of the courts. As soon as academy projects became public, opponents seized on judicial review as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions, mostly funded by legal aid with the real opponents—the National Union of Teachers and anti-academy pressure groups—masquerading as parents too poor to afford to pay legal fees.
The legal campaign against academies was masterminded not only by these opponents, but also by solicitors and barristers who made a specialism of academies case and encouraged legal challenges. …
A critical early case concerned St Mary Magdalene Academy, around the corner from my home in Islington. Islington council held an unusual local referendum in 2001, asking the borough’s residents whether they wanted a new secondary school and, if so, of what type. Virtually all those voting in the referendum favoured a new school, and the most popular option was for a Church of England school, Islington having no C of E secondary schools. The council thereafter drew up plans with the diocese of London for an existing Anglican primary school to be rebuilt as an all-through academy for primary- and secondary-age children. However, popular enthusiasm and local authority agreement did not stop anti-academy campaigners from fighting the proposal through the courts, with the support of residents in nearby multi-million-pound houses, few of whom used Islington state secondary schools or intended to do so, and who simply didn’t want a new school of any kind in their back yard. It was a classic unholy alliance”.
In due course, the case went through the courts—it took quite a long time—and in July 2006 the High Court decided in favour of the Government.
That is an account, by somebody who was affected, of the way that judicial review was used. The important thing I find from it is that, so far as possible, the people selected to try to raise the reviews were people who qualified for legal aid. In this way, the whole expense of the campaign, so far as it was financed in that way, was borne by the taxpayer. That passage, from a very responsible source, shows me that we need to think—certainly, we have to be careful—about the way in which judicial review may be used. I am not saying that everything that is said in these clauses will necessarily deal with that, but I believe the clause about finding out the financial position in relation to the judicial review is relevant to this sort of situation.
So far as the first clause is concerned, I do not intend to deal with the detail of the amendments at this stage because the Minister will no doubt wish to do so. So far as I am concerned, the first clause does not preclude the idea that, if the court thought the outcome should be a declaration, it would not be able to do so because it is the outcome for the applicant. If the outcome for the applicant is a declaration that
there has been a practical wrong or unlawful practice and the applicant could secure that as a declaration, it would be part of the outcome. It might not make much difference for the rest of his situation, but at least that would be part of the outcome that the court might think was possible. At the early application for leave, that point could certainly be considered.