One has at least to be thankful for small mercies, even if, in your view, they do not go nearly far enough. I am certainly not indicating that in due course there will not be a Division in this House on the appropriateness of this clause.
What the noble Lord has not done in his reply is to deal with the question that has been asked very clearly and has been emphasised by the noble Lord, Lord Davies—that is, what are the powers of the courts now? The position as I understand it is that everything that the Government want to achieve through Clause 64 can be achieved by judges now. If in fact it is said that they cannot, why is it not left to the rule committee, which of course the noble Lord knows about? He knows that it consists of an expert body looking at how the law should be changed in order to obtain improvements. The noble Lord, Lord Hart, in his very helpful intervention, pointed out that significant improvements can be made in planning matters.
The noble and learned Lord, Lord Mackay, and the noble Lord, Lord Horam, mentioned the problems that exist in judicial review. I am certainly not suggesting that it would not be preferable if consideration were given to adopting improvements where they can be made. However, I still suggest that the best and only way to bring about real improvement is through the sort of process that, at the behest of the noble and learned Lord, Lord Mackay, I undertook in regard to civil procedure generally, including looking at judicial review. The fact is that you cannot do these things in the piecemeal way that the Government are seeking to
do in these clauses. If you do, the result will be that you inhibit judges’ ability to carry forward what they have done so far, not perfectly but to the best of their ability.
Perhaps I may give one more example in relation to declarations which the Minister might want to consider. There are cases of judicial review where a matter comes before the court and it is at that stage or during the course of the proceedings that it is accepted that a particular result should be produced. None the less—and I should add, so as to make Clause 64 relevant, despite the fact that the applicant will receive no benefit—it is still thought by the court that it is in the public interest not only to give a judgment but to grant a declaration. That can now happen.
There are also cases where the court now can be asked to make a future declaration in order to clarify the law. The declaration is a remedy which is emerging to its full extent in this jurisdiction, and there are cases where other steps can be taken that are in the interests of good administration, the interests of the rule of law and the interests of justice. I repeat: it is not that this cannot be done, but this is not the way to improve the system of judicial review.
6.30 pm
As the Committee will know, Lord Diplock was not only a Member of this House but a jurist of the highest calibre. He made the boast, of which the judiciary is very proud, that the improvements made in judicial review were the finest things to happen in his judicial lifetime with regard to protecting the rights of the citizen. Once we start legislating in the way of Clause 64, the intent of which is to prevent an exercise of discretion in this area, we fundamentally change judicial review. It is not just something superficial; we would be saying that the judges’ discretion should be curtailed. The Government must think about whether that will really benefit the application of this remedy in this situation. I suggest that it would lead to just the satellite litigation that the Minister wishes to avoid.
Those who have spoken in this debate have, in many cases, great practical experience of judicial review as it is. They see its shortcomings and are all in favour of tackling them; but, unfortunately, that will not be achieved by Clause 64 as it is drafted. I do not believe that the Minister thinks that adopting some of these amendments would undermine what the Government say they are trying to achieve with the provision. Perhaps I may leave the matter in this way: we reserve the right on Report to challenge this provision and to say that it should not be part of the Bill, or that it should be amended in the way proposed. At this stage, however, I will not divide the Committee.