Judicial Review and Courts Bill — House of Lords, 2022-02-21
Topic: Law and Crime
Terence Etherton (Crossbench, Unknown): My Lords, as the noble Lord, Lord Anderson of Ipswich, indicated, I am happy to join myself with the amendment. Both the Law Society and the Bar Council oppose the inclusion of proposed new subsection (9), as do many others and for very good reasons. It is worth pointing out at the outset that the provision is not based on any recommendation of the Independent Review of Administrative Law headed by my noble friend Lord Faulks. To my mind, this part of new Section 29A is the critical provision because it colours the appropriateness or otherwise of what has gone before: in particular, the powers under the proposed new subsection (1)(a) and (b). It is objectionable, I suggest, for three reasons: it is unnecessary, it is wrong in principle, and it is potentially dangerous in practice It is unnecessary because proposed new subsection (8) sets out a comprehensive list of matters to be taken into account by the court, including, most importantly under (f) "any other matter that appears to the court to be relevant." There is simply no need for any other guidance or mandatory direction to the court if the courts are to be left to choose the most appropriate remedy to right the wrong that has been committed. A problem would arise only if what is intended is that in certain circumstances the judge should not be left to choose the most appropriate remedy but one of the other quashing remedies to be found in the proposed new subsection (1) As I understood the Minister’s answer to a point raised by my noble Lord, Lord Pannick, if the judge feels it would not be appropriate to impose a quashing order, notwithstanding the trigger in proposed new subsection (9) that would "as a matter of substance, offer adequate redress", because the judge felt there would be injustice, that would be good cause. Well, if the judge feels that the appropriate remedy in all the circumstances to remedy the wrong committed by the public body is different from the quashing orders in proposed new subsection (1)(a) and (1)(b), that would be an injustice. So one asks oneself, "What on earth is the point of it all?" since the answer given by the Minister that I have just mentioned indicates that what one is left with is a free-ranging discretion to be applied in an appropriate judicial manner, having regard to all the circumstances to rectify the wrong that has been committed. So I am afraid I am left at a loss to understand exactly what it is that makes the proposed new subsection necessary or logical I have also said that proposed new subsection (9) is dangerous and wrong in principle. First, it provides a precedent for interference by the Executive with judicial discretion. In effect, it politicises the exercise of judicial discretion in carrying out the judicial function of selecting the most appropriate remedy to right, so far as possible, the wrong that has been committed Secondly—a point I raised at Second Reading—the trigger for the mandatory direction in proposed new subsection (9), that the court must exercise its powers under subsection (1), the new quashing powers, if that would "as a matter of substance, offer adequate redress" is bound to be the subject of dispute and appeals. It introduces a hard-edged objective test, quite different from the judge’s discretion, which will enable disappointed litigants an opportunity to litigate and appeal further, and that surely is something we must avoid if possible.