My Lords, luckily, and happily, I think there is little danger of this debate becoming a closed shop of the legal profession. It is very important that that is the case, because in my view Part 4 of the Bill, which represents an attempt by the Government to—I think one can only say—clip very severely the wings of the whole judicial review system, is something that goes to the heart of the way that we are governed, something that is of interest to every citizen as much as it is to professional lawyers. It raises questions such as: do we live in a state in which the Government are subject to the law? Is that a purely theoretical state of affairs or a practical reality? Is there some way of enforcing that principle? Is it possible for the citizen to get an authoritative view of what the
law is? He or she is supposed and indeed compelled to obey it, but is it possible to get a judicial decision as to what the law is in a particular circumstance? Do the three powers of government operate as they should? Do they act as a balance on each other, or is one of those three powers oppressive to another? These are foundational questions and I think that we have been quite right to spend a bit of time this afternoon addressing some of these basic principles as well as the Bill.
However, I will now say a few words about the Bill. We heard two very distinguished speeches from the noble and learned Lord, Lord Brown, and the noble Lord, Lord Marks, setting out some of the central principles that lie behind this debate. I agree with much of what was said by both of them. On the central controversy between the two as to whether Parliament should legislate in the area of judicial review, I side entirely with the noble Lord, Lord Marks. It is, in my view, Parliament’s essential job to review and keep under review the constitution, and to make changes to it when it decides that that needs to happen. We created the Supreme Court recently, for example, to keep under review the operation of our legal system and the evolution of jurisprudence, to correct a tendency that we do not approve of by using statutory law, and so forth. These seem to be essential roles of Parliament and we should not shy away from that.
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However, the Government’s attempt today to change the law is thoroughly misconceived. I particularly object to the phrases
“must refuse to grant relief”,
and
“may not make an award”,
in the clause before us today. It is quite clear in principle and in practice that the judiciary, when it undertakes judicial reviews, takes into account among many other factors when it considers the merits of an application whether or not the outcome would make any substantial difference to the applicant; that is perfectly legitimate and it happens at present. To remove altogether any judicial flexibility seems to be a sinister development.
Not only that, it could be quite dangerous and counterproductive. It creates dangerous perverse incentives. I will explain what I mean. The executive branch, which is generally speaking the target of judicial reviews, has in its power very often so to change things as to ensure that the outcome, whatever the result of the judicial review, is exactly the same. I will give an example, which is not far removed from a concrete case that I can remember as a constituency Member of Parliament. Suppose that a hospital trust, with a number of hospitals within that trust in different parts of a geographical area, decides to start a consultation about the future of maternity and obstetrics in one of its hospitals. The public take that commitment to hold a public consultation quite seriously. Local GPs, patient groups, the local authority, the Royal College of Obstetricians and Gynaecologists and all other people concerned spend time and trouble producing submissions to this inquiry.
While the inquiry is going on, the hospital foundation trust starts to undermine the existence of obstetrics and maternity in that hospital by not replacing consultants who retire, moving people to other hospitals within its jurisdiction and allowing paediatric services to lapse in that hospital. That means that obstetricians cannot operate there because they have no paediatricians to whom to hand over problematic young babies and so forth. In fact, the trust is engaged in the process of undermining, prejudging and pre-empting its own review.
It may well be that by the time people have realised what is happening an application is made for judicial review, but it may be too late to save maternity services in that hospital. It will not be possible to attract new consultants in circumstances of such difficulty, and when some specialties have already been removed, to replace staff who have already retired or been moved. It will simply not be possible, whatever happens, to replace maternity services in that hospital. Has that hospital foundation trust got away with an incredibly cynical manoeuvre? It has pretended to have a consultation but has made a mockery of the whole process.
If this clause put forward by the Government survives debate this afternoon and on Report, it would be perfectly impossible for a judicial review to give any kind of relief at all in such circumstances. Two things will have happened as a result of that. One is that there will have been an injustice because an arm of the state has clearly behaved in an utterly dishonest fashion; it should have been held to account and has not been, and that is clearly an injustice. The Government—the state, broadly interpreted—have not actually considered themselves subject to the law. The second thing is that an incentive has been created for other public authorities to behave in such a way as to prejudge the outcome of a judicial review or a threatened judicial review, so more harm will be done in future by public authorities acting in that fashion.
That is the path that in my view we would be going down if we accept this clause. The clause should not be accepted: it is very dangerous. I am sorry to have to agree with what the noble and learned Lord, Lord Brown, said—that this looks as though it is part of a package designed to weaken the element of central protection of judicial review in our system. I hope that that is not a sinister, deliberate intention on the part of the Government, but it looks awfully like it when you look at this clause and the clauses that will come in the rest of this part of the Bill.