My Lords, I am very grateful to the Minister. His door has been open in recent weeks to discuss matters of concern and interest with noble Lords who are concerned about this clause.
On Report, your Lordships voted by a majority of 66 to amend this clause to maintain a degree of judicial discretion. The Government lost that vote because they lost the argument. Judicial review is of central importance to the rule of law. It is the means by which citizens seek to establish before an independent judge that public authorities, including Ministers, have acted unlawfully.
5 pm
The courts do not just grant remedies for the individual applicant. They state what the law requires so that Ministers and officials know what test to apply in future cases. This clause, if enacted in the form that the Government wish to see, would oblige a judge to dismiss a judicial review application at the outset, however important the issue and however strong the argument that the defendant, whether it is a Minister or a civil servant, has broken the law. Requiring a fair procedure, and requiring Ministers and officials to comply with the law of the land, is not a technicality. It is very disappointing that, despite the substantial majority in your Lordships’ House on Report, the Government have offered no concession whatever on this clause.
The issue before your Lordships’ House is a very simple and important one. There needs to be an element of judicial discretion. The absence of judicial discretion is not, to use the Minister’s words, a fair balance. During the one-hour guillotine debate in the House of Commons on all three of these judicial review issues—they were taken together—a Conservative Member of the House of Commons, Mr Geoffrey Cox, said that he could not support the Government because this clause will mean,
“that flagrant and absolutely unacceptable behaviour by the Executive could be condoned by saying, ‘Well, it made no difference.’ There are times when courts ought to mark a fundamental lack of due process”.
I agree. More importantly, so did Mr Grayling. The Lord Chancellor intervened in the debate and said:
“The ‘exceptional circumstances’ provisions would allow a judge to say, ‘This is a flagrant case and must be heard’”.—[Official Report, Commons, 1/12/14; col. 82.]
The Lord Chancellor made the same point at col. 72. That is precisely the defect of this clause. It contains no exceptional circumstances provision. It contains no power for the court to say, “This case must be heard”. The clause imposes an absolute duty on the courts to dismiss cases where it is highly likely that the defect would have made no difference, however flagrant the legal error and however important the issue from the perspective of the public interest. Since the Lord Chancellor in the debate recognised the obvious need for a degree of discretion in this clause, it is incomprehensible to me why the Government are so determined that the clause must be enacted with no degree of judicial discretion.
In those circumstances, I invite the House to ask the other place to reconsider this matter and reconsider it on the basis of what this clause actually provides, and the damage that it will do to the rule of law in this country. The Motion in my name now before the House adds a reference to the public interest. It is an improvement on the amendments approved by your
Lordships’ House on Report in that it identifies the purpose—the essential purpose—of retaining a degree of judicial discretion.
On this issue of the rule of law, the House of Commons should be asked to think again. I beg to move.