I wish to support the Motion of the noble Lord, Lord Pannick, and resist the Minister’s Motion on rather a broader basis than perhaps has been suggested so far. The problem, or one of the problems, with the Minister’s Motion is that it leaves intact the central thrust of Clauses 65 and 66, which were of course objected to and disagreed with by the Commons on the basis set out in Commons Reason 106A:
“Because it is appropriate to impose duties, rather than confer discretions, on the High Court”,
et cetera. My deep disagreement with that basis of rejection is that I do not believe it is appropriate in this jurisdiction to impose duties and to narrow or eliminate discretions on the part of the judiciary.
In Committee in July, I suggested that it is difficult to think of any area of law less suitable than this one for this sort of legislative interference. We are here concerned with the inherent supervisory jurisdiction of the courts to hold the Government to account; to ensure that the rule of the law is observed when the Executive take action. Yet here is another example of the Government seeking to weaken those powers with the inevitable chilling effect, and in many cases making it practically impossible to bring a challenge. The fresh ministerial amendments still leave intact the provision that you cannot bring judicial review unless you give a whole series of particulars about how the process is to be funded.
In that same debate, the noble and learned Lord, Lord Mackay of Clashfern—my respect and admiration for him is second to none, not least since he had the sagacity 22 years ago to promote me to the Court of Appeal—rightly pointed out that it was the judges themselves who had originally sought to underpin the rule of court under which judges had previously exercised their judicial review jurisdiction by giving it legislative form. Thus was enacted the section of which the noble and learned Lord, Lord Woolf, spoke a little earlier: Section 31 of what used to be called the Supreme Court Act but, since the invention of a Supreme Court, is now called the Senior Courts Act. However, it must be recognised that Section 31 merely facilitated the exercise of the judges’ supervisory jurisdiction; in no way did it seek to constrain, limit or inhibit it. It imposed no duties on the judges and you will search it in vain to find such.
Now, though, in this clause, as in the one that we discussed a little earlier, the Government are intent on seeking to eliminate the judges’ powers and to impose duties upon them. I echo what the noble Lord, Lord
Deben, said about the earlier proposal: this is an amendment of constitutional importance. In truth, it is not a party political matter. It is a question of where the boundary should be drawn between the Executive and the judiciary. The judiciary in this country, unlike its American counterpart, has always fully recognised the sovereignty of Parliament. We do not strike down primary legislation. Parliament, in turn, has not hitherto sought to whittle down the judges’ supervisory jurisdiction, and it is really inappropriate that they should now start to do so.
If the Government have their way on this or, on reconsideration later, on the previous or the next amendment, the constitutional balance will have shifted. The fact is that the Motions that the noble Lord, Lord Pannick, is advancing are ones that are truly worth fighting for.