I am grateful to the Minister for making that clear. I was not aware that the Lord Chancellor had done so, and I thought it was very regrettable that he should have failed to do so. It is extremely important that the one Member of the lower House who has a statutory responsibility of a particular nature with regard to the rule of law and the administration of justice should have made that mistake, because he dealt very summarily and quickly with the position which was before this House in some detail. We have heard the relevant passages of what he said.
I recall that on, I think, 5 December—I have the reference to it if it is required—the Minister took care to say that there was a convention that the courts, Parliament and Government each respected each other and therefore did not unnecessarily criticise each other. I was well aware of that convention but I would suggest that it is much wider than that. It is a convention that, in respecting the other arms of government, each of them—I include the judiciary here as an arm of government—will not trespass on the other’s area of territory or a different part of the arm unless there are particular reasons for doing so. One can see why that should be so. In the courts, we are very particular indeed not to trespass on the privileges of this House and the other place—and they should be equally sensitive.
Knowing what had been done by this House, which appeared to me at any rate to be so clearly necessary, I read with great care what was said in the lower House. I must say that I was very concerned that the Lord Chancellor in the lower House had indicated the three reasons that noble Lords were told about by the noble Lord, Lord Beecham, when he read the speech, including one that clearly amounted to a reflection on the judiciary. I have heard many protestations that the Lord Chancellor
greatly respects the independence of the judiciary. However, when he talked about its difficult task of administering judicial review, as it does, day in and day out—and the task of presiding over judicial review is allocated to earmarked judges, so we can be sure that the matter will be properly considered—he was concerned that it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. That is one of the problems that the Chancellor was concerned about. I would gently suggest to the Lord Chancellor, if he is writing apologies, that that is another matter that certainly calls out for an apology. It is wholly inconsistent with his statutory responsibilities under the Constitutional Reform Act. That is something that, having been said, either persuades the House or does not. However, if the other place was misled as to the background, what is at first sight a very difficult decision to understand is explained. I suggest that, because the matter was not put fairly to the other place, that is another very good reason why the matter should be returned to it.
5.30 pm
If you know about judicial review, you would know about its early history. One problem of judicial review during its early history was that it could be bypassed. Just as the present legislation applies only to judicial review, it is possible to take before the courts the same matter under an application for a declaration. If that happens, all the safeguards are bypassed. Therefore, the judges had to find ways to avoid litigants bypassing judicial review by going for a declaration. The declaration was imported into our system in England and Wales fairly recently, not least from Scotland, where it is used to great effect as a declarator. The declaration means that the court has power to declare before something happens whether it is unlawful or not. Unfortunately, perhaps, it is not used as much as it should be. As someone who had the task of defending the Government before the courts—for example, in planning applications —I was deeply concerned that, often during the course of a very long planning inquiry, points of law would arise and one had to wait until it was over before the position could be determined. With the benefit of a declaration, it could be determined. At the time of the application for permission to apply for judicial review, in many circumstances one will not know what the correct answer is. It is therefore important and in the public interest that issues are established, not only for a particular case but for the law as a whole in the process.
On looking at the proposal we are considering, it may be clear to your Lordships that it attacks not only the stage of the trial but also the stage where permission is being sought for leave to apply for judicial review. If it can be shown at that stage, to the satisfaction of the judge, that it is highly likely that it may not affect the applicant, he is then under a responsibility to stop the proceedings ever getting to a hearing. On the one hand, there would be an act which could be established as unlawful and yet, if this amendment as now encoded were to survive, the law could not be clarified.
Looking back over my experience, I could give many examples of cases where I might not have been able to ignore the effect of this provision when it would not be in the interests of justice to do so. I am not going to take
up time, because there is not the time for me to do that, but I would readily do it if it were necessary. I suggest that it is obvious. Last week the Lord Chancellor lost a case which, at first sight, may have seemed very petty. The question was whether a prisoner could order a book. It was said that, because of a procedure initiated by the Lord Chancellor, there would be no access to that book. On 5 December, Mr Justice Collins, who has had great experience in these matters, came to the conclusion that the guidance which the Lord Chancellor wanted to be implemented as the practice in prisons was not lawful. No doubt there are still opportunities to appeal the matter. There are arguments that can be advanced against the judge’s decision, but if you read the decision you can see how important it is that the facts of the individual case are considered. You cannot have a blanket approach because there will be very similar cases where, in one, a certain view should be taken and leave to proceed not be given whereas, in the other, it should be.
I ask your Lordships to say that, in the interests of justice and of the rule of law, the matter should go back to the other place with the opinion of this House as sought by the noble Lord, Lord Pannick.