My Lords, I wish to make three short points in support of the noble and learned Lord, Lord Woolf. I do not know how long this debate is going to continue. We heard that the noble Lord, Lord Pannick, is unable to be here at the moment. I hope I will be excused for being absent for about half an hour from 5 pm.
The three points I wish to make are these. First, it seems that there is a belief that it is very easy to obtain permission to move for judicial review. For those of your Lordships who are not lawyers—and happily there are many here—I want to lay that belief to rest. Like myself and, in a much more distinguished way, other noble and learned Lords, anybody who has faced the challenge of a list of cases requesting permission for judicial review will know that a vast percentage of those applications are refused at the paper application stage.
I shall give your Lordships what might be a useful insight. The typical High Court judge or deputy High Court judge—and it is in that latter capacity that I have sat and continue to sit—is faced on any given day with about a dozen paper and oral applications for judicial review. My estimate, based on my own experience and on talking to others—there may be more formal statistics—is that at most one or two of those applications move on to the next stage, and the other 10 or 11 are refused. Nobody should, therefore, get the idea that it is very easy to challenge the Government or public bodies by way of judicial review.
The second point is about the phrase “highly likely”, which appears in Clause 64. I think the use of this phrase confuses especially the lawyers on the standard of proof which is required in judicial review applications. Does “highly likely” mean “more probable than not” or less than “beyond reasonable doubt” or what? Why do we need to add this almost tautologous standard of proof to a well honed system in which judges—who are, believe it or not, trained in these matters, and many of whom have great experience—know exactly what to do without an artifice being added for reasons which are not clear?
The third point which is of real concern to me is that the test in new subsection (2A) that Clause 64(1) seeks to insert in Section 31 of the Senior Courts Act 1981, which refers to the outcome not being,
“substantially different if the conduct complained of had not occurred”,
is a licence for vestigial consultation. Many cases that come before the High Court on applications for judicial review are cases in which the Government and other public authorities that are devolved parts of government have failed to carry out proper consultation with the public. Sometimes the failure to carry out consultation is a very serious matter indeed, because it is a denial of the right of the public not only to be told that they are being consulted, but to express their views in that consultation and to have them considered in a full and proper way.
There have been many cases in which judicial review has been granted because of the failure of consultation, and in many of those cases the outcome is eventually exactly the same as that which the Government would have wished before the failure of consultation. Therefore it may be thought by the judge highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred. Sometimes that failure of consultation is—or borders on—the contumelious by the public authority concerned. I suggest that we should not license that kind of failure by governmental authorities which would thereby deprive the public of the right to have proper consultation. I hope that those three points are useful to your Lordships. I do not want to add anything else, because the noble and learned Lord, Lord Woolf, has given a very full exegesis of the concerns.