My Lords, I support all the detailed amendments in this group but, more fundamentally, I support the root and branch opposition raised by all those who have put their names to Clauses 64 to 67 not standing part of the Bill. It is with regard to that basic question that I want to say a few words today. Whether the thinking
which underlies these provisions is, as some would suggest, positively and consciously mischievous, or merely misconceived and mistaken, I do not know. However, it would be a brave misjudgement if we were to allow them to pass into law. If they are persisted in, I hope that on Report this House will reject them.
What the Government are proposing here is a heresy. With regard to Clause 64, it is a double heresy. Without repeating all that I said at Second Reading, I will try to explain what I mean. The basic heresy here is to treat judicial review—which of course is the title of the whole of this part of the Bill—as a matter generally suitable for legislation at all. Essentially, I suggest that it is not. I seriously wonder if those who are behind these proposals understand the intrinsic nature of this supervisory jurisdiction. Judicial review is no more and no less than the exercise of the courts’ inherent jurisdiction to ensure that the decision-making of the Government, its executive action, remains within the bounds of legal propriety. As the noble and learned Lord, Lord Woolf, explained today, it is judge-made law par excellence; it has been and should remain, essentially, a matter for development and control by the judges themselves. If ever there was an area of the law that for the most part should remain free from legislative interference, it is this. It is difficult, perhaps impossible, to think of any field of law less suitable for legislation, for government diktat as to its future development. Most obviously this is so with regard to provisions which, as here, are designed to essentially cramp and narrow down judges’ powers and discretions. In this field of inherent control of administrative action, it is intended to discourage those who seek to question the legality of governmental decision-making.
In truth, these provisions would make serious inroads into the separation of powers; they would represent a significant shift in the constitutional balance between the judiciary and the Executive. That is the basic heresy that underlies the entirety of Part 4—the supposition that Parliament rather than the judges should decide how the court’s supervisory jurisdiction should be exercised, and its development and control, which are essentially matters of procedure.
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The other separate heresy lies in Clause 64 itself, and the proposition in this provision that, even supposing that a public body has behaved unlawfully—perhaps flagrantly unlawfully—in reaching a particular decision, the court must nevertheless ask itself whether it is “highly likely” that the outcome would in any event have been substantially similar. If so, it dictates that the court must, without more ado, dismiss the challenge—with no relief or declaration. It is a slippery clause, as the noble Lord, Lord Carlile, has explained. As others have explained, the court on judicial review is simply not concerned with the substantive merits or demerits of the decision, only with the question whether the impugned decision was lawfully arrived at. The merits of a decision which is under challenge in judicial review are not for the court but for the public authority alone.
As compelling an illustration of that principle as one could look for can be found in an amendment in the Bill to the single, brief legislative provision that
hitherto has provided the sole statutory context for the modern law of judicial review, in Section 31 of the Senior Courts Act 1981—which used to be called Supreme Court Act until the Supreme Court came into being in 2009. The 1981 Act is, of course, mentioned in these draft clauses as the Act that they are intended to alter by so severely confining the court’s future power and discretion.
The amendment of which I speak is the introduction of a new subsection (5A) to Section 31 of the 1981 Act. Unamended, Section 31(5) allowed the High Court, in quashing a decision, also to,
“substitute its own decision for the decision in question”.
The new amending provision in the new subsection (5A) was introduced to limit that power so that it can now be exercised only if,
“without the error, there would have been only one decision which the court or tribunal could have reached”.
There is nothing there about the judicial review court being able to impose its own decision just because it thinks that it is highly likely that its own view of the matter is to be preferred.
I suggest that those are the basic misunderstandings and misconceptions that underlie this whole attempt by legislation to cramp and stifle the court’s future powers. I made more detailed objections to Clause 64 at Second Reading. I shall not repeat them now, and I shall not deal with the other clauses not to be debated in this group, which are similarly subject to the same basic objection that they would introduce heretical inhibitions on this area of the law, which has been a healthy development in our jurisprudence in our last 40 or 50 years.