I shall say just a few words. It is very strange that there is nothing in the Explanatory Notes to explain why this presumption is in the Bill at all. I have searched the notes for guidance and can find nothing. That point aside, I stress the point made by my noble and learned friend Lord Etherton about the danger that lurks in proposed new subsections (9) and (10). If one is sitting in a court trying to work one’s way through the various phrases set out there, they create a number of traps—and certainly opportunities for the disaffected litigant to challenge the decision. There are value judgments to make about what is “a matter of substance”; you must address your mind to what is meant by the phrase “adequate redress”; and you must find whether there is a “good reason” for doing or not doing something. These are all things you must face up to, and you must explain yourself, because it is all qualified by the words “is to do” or “must do”. A judgment that is going to stand up to scrutiny in the Court of Appeal will have to work through all those phrases and explain what decision the judge has taken in order to support the decision that is ultimately made.
This remedial tool is being encrusted with so much stuff that it is almost unusable. It really is ridiculous to overwork to this extent the amount of directions being given to the judge. It is not necessary, it is bad legislation and it is extremely dangerous. It is not a remedial tool at all; the Government are trying to create something in their own interest, as has been pointed out already, and make it as difficult and dangerous as possible for judges to use this tool. It should certainly not be legislated for in this form. Therefore, I strongly support the removal of these two subsections.