My Lords, this has, correctly, been a lengthy debate, in which views have been expressed by a number of noble Lords with judicial and legal experience and—to the benefit of the debate—by noble Lords who have different but none the less valuable experience to contribute to the debate as a whole. Since this is our first opportunity to consider Part 4, it is wholly understandable that the comments made by certain noble Lords have ranged beyond the strict confines of the clause that we are considering, because the general thrust of the argument embraces more than one clause. I make clear that any points that arise in the subsequent groups should be taken again, and
that no noble Lord should feel any restriction by having mentioned them in this first group.
The development of judicial review has been contributed to, quite apart from this debate, by a number of those who have contributed to the debate. Although they have not said so, it is clear that there is a great deal of judicial pride in the fact that it has evolved and provided a valuable, and indeed fundamental, check on executive power, not just in this country but, as we have heard, in Northern Ireland. I do not resile from anything that I said at Second Reading about the importance which the Government attach to judicial review, nor indeed in the columns of the Times. I have not ventured into the Daily Mail or any of the other organs that the noble Lord, Lord Beecham, referred to, nor have I expressed any views about the particular political affiliations of any potential applicant, which are nothing to the point. The question is whether it is appropriate for any—and in particular these—reforms to take place.
Of course, it is tempting to suggest that judicial review is so perfect an object that it is beyond improvement. It is described by the noble and learned Lord, Lord Brown, as “a heresy” to consider any modification of the doctrine of judicial review. I agree with those who said clearly that any change to judicial review should be looked at very carefully indeed—quite so. That is precisely what this debate and subsequent debates enable us to do. However, I respectfully differ from the point that it is beyond Parliament’s competence to make some modest changes, and these are modest changes. That is appropriate if Parliament approves that these changes are made, bearing in mind, of course, that they should not encroach on the proper role that judges have established and which they perform so well. We must accept, as illustrations have shown in this debate, that there is the potential for abuse in judicial review. That is not to say that it does not have an extremely vital function, but we should be astute enough to ensure that the doctrine is sufficiently rigorous to remove or at least limit the possibilities for abuse.
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We suggest that our reforms will effect a modest rebalancing to ensure that meritorious claims—I will deal with the adjective “meritorious”, as invited—that are grounded on failures of public administration that affect people can proceed swiftly and effectively to their being determined. Time limits are now shorter than they once were but there is still the question of obtaining a permission hearing and then, if permission is given, the question of obtaining a full hearing. That may take some time. While I applaud all the attempts by the judiciary and court staff to speed things up, it is plainly the case that there are delays. Sometimes, as my noble friend Lord Horam so clearly pointed out, these delays can be the enemy of progress in infrastructure projects and the like, which I am sure that noble Lords on all sides of the House would not wish to impede, when in fact the grounds for purported judicial review are baseless.
Clause 64 is one part of our approach. It modifies how the High Court or the upper tribunal deal with judicial reviews where the matter complained of was highly unlikely to result in a substantially different
outcome for the applicant. The clause is designed for the most part to bite on errors in procedure that are highly unlikely to have changed the end result. For example, a public authority might have run a consultation to inform its decision on where to place a pedestrian crossing but failed to notify—when it should have—an individual who ought to have been notified that the consultation had begun, despite the public authority having let many others know. However, that person’s likely arguments have been raised by many other individuals, and the public authority made its decision having fully considered the arguments that were raised. In those circumstances, the court might conclude that the failure to notify that particular individual, unlawful though it was, was highly unlikely to have affected the outcome for the applicant, and it would be futile to quash the decision and require reconsultation since nothing new would be added.
Clause 64 would mean that the court, in the absence of other grounds of challenge, would not give permission or grant a remedy so that the original decision would stand. This clause will help to ensure that judicial review focuses on matters of importance, not on mere technicalities.