My Lords, Clause 1 gives judges a new power. I suggest that this is a power which enables them to do justice better between the parties, and to avoid some of the hard edges which currently obtain. Remedies in judicial review have always been discretionary. Nothing about this clause changes that; it simply gives judges an extra club in their bag. It is notable that the clause is shot through with the word “may”.
The clause—the presumption apart—has survived scrutiny by the Bingham Centre for the Rule of Law on rule of law grounds. It has been welcomed by many judges. Despite what the noble Lord, Lord Marks, said, it is not obvious to me what the problem is with it. On re-reading some of the speeches at Committee, a lot of the opposition to the clause was on the basis that it gave the judges too much power. It is something of an irony that the rhetoric against the Government’s plans in respect to judicial review was that they were intending to clip judges’ wings in an executive power grab. Now the objection is that judges will have too much power and will make inroads into what has sometimes been described as the “metaphysics of nullity”.
I assure your Lordships that the Independent Review of Administrative Law was genuinely independent. I suppose that I might be regarded as having a political bias, but no such allegation could be made against my fellow panellists. It is unfortunate that the Labour Party oppose this clause in its entirety—this looks a little bit like political posturing. I very much hope that the House will not be divided on this.
The most compelling argument in favour of the clause can be found in the article published in the Times last week by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which I hope that many of your Lordships have read. The noble and learned Lord is in his place today but, as I understand, he may not speak because he cannot be here throughout the entire debate and, with a great adherence to the customs and practices of your Lordships’ House, he will not necessarily intervene. His cri de cœur at the end of the article was to regret that the power which is given by this Bill in Clause 1 had not existed when he was sitting in the Supreme Court in HM Treasury v Ahmed. Indeed, it is unfortunate that it was not.
The objection to the presumption is, on the other hand, much more understandable. There seems to be two points: does it fetter the judge’s discretion and, if not, does the presumption add anything? I am not convinced that it will fetter the judge’s discretion. He or she will be able to grant the relevant remedy so as to do justice in the particular case. I do not expect a judge to come to a conclusion which he or she would not have reached because of the existence of this rather weak presumption. Putting myself in the position of the hypothetical judge, I would not be diverted. Our judges are made of much sterner stuff.
So why have the presumption in the clause at all? I have struggled a bit with this. The clause does give the judge more flexibility; perhaps the presumption is doing no more than reminding the judge of the new power. I was reminded slightly of the old television advertisements for washing powder. There is only so much you can say about the quality of washing powder once you have emphasised that it washes white, or whiter still, or whiter than other soap powders. Consequently, advertisers used to draw the viewers’ attention to “a new added ingredient”. That is perhaps what the presumption is there for. However, I think that Clause 1 will survive without it.