My Lords, I am in the happy position of having somebody agree with me on every point—but not everybody agrees. The Minister is a remarkable advocate. If he came to my home and we had a family cat, after he had spoken for about two minutes the cat would be convinced that if it wanted a fish, it should dive deep down into the sea, find one at the bottom and bring it out.
The Bill provides a new, additional remedy, and it is a very wise step. Can we please consider situations in which judicial review is involved? A massive judicial review proceeds against—it does not matter who—the Government, a ministry, a local authority, and at the end of the hearing the judge finds there is no unlawfulness about this, that and the other, but yes, there was a moment when the decision-making process was flawed
because a small procedural step was not taken. It should be open to the court, having listened to arguments on both sides, to say that that procedural irregularity, although demonstrated, has not affected anybody and therefore the order will not be quashed so all the matters that were in argument can proceed. I see no difficulty about that.
My real problem is that I am very troubled about the way in which the new remedy is circumscribed with the presumption. It gives the opportunity for inaction to the wrongdoer. The Minister said that there is not a very heavy presumption, not much to make a fuss about, besides which there is the development of new jurisprudence—I love the idea of the Government wanting judges to develop new jurisprudence in the field of judicial review and I am very grateful to the Minister for that offer—but the only thing expressly required of a judge considering judicial review is to apply the presumption. Why is there not a presumption or a consideration that says that the judge must look at how determined the wrongdoer was to persist in his unlawful action? That would a consideration too, would it not? There is none of that in the Bill—it is just simply this presumption. I respectfully suggest that it is a heavy presumption, because it is the only one which appears in the Bill or which directs the court to a particular starting point.
As for the specialist judges—and they are specialist judges—the idea that they will not know about this new remedy and consider it is simply barking. Even if the judge had a bad moment and forgot about it, can you imagine any advocate acting for the wrongdoer who wished to have the order stand not drawing his or her attention to the presumption and saying, “This is the starting point, my Lord”? The judge will wake up and think about it. To enact legislation to encourage judges to develop jurisprudence is, if I may say so, one of the least good arguments that the noble Lord, Lord Wolfson, has offered in his whole forensic career.
Judicial review is a discretionary remedy. The judge, having considered whether unlawfulness has been established —that is the first question and let us not overlook it—finds that it has. He then examines the nature of the unlawfulness. Is it fundamental? Is it procedural? Is it important procedural? Is it minimal procedural? Then he or she reflects on all the considerations that have come to bear—in other words, all the facts of the case—and makes a decision. Judges really do not need to have more than the broad discretion that judicial review has always offered, and which has made it one of the most fantastic developments in our administrative law in my professional career.