Judicial Review and Courts Bill — House of Lords, 2022-02-21
Topic: Law and Crime
David Anderson (Crossbench, Unknown): My Lords, I rise to speak to my Amendment 13. Two of the greatest joys of practice at the Bar are finding oneself on the same side as the noble Lord, Lord Pannick, and feeling that the noble and learned Lord, Lord Etherton, might possibly be with you. On this amendment, I am experiencing both those joys, because both noble Lords, along with the noble Lord, Lord Ponsonby, have signed it Amendment 13 would remove the proposed new subsections (9) and (10), by which the Government seek to enlist our aid in watering down the remedies judges might grant in the unfettered exercise of their discretion. Such interference is unjustified as a matter of principle. Judges are skilled technicians who know that every case turns on its particular facts. The Clause 1 remedies are specialised tools, the uses of which are best judged not by remote control but by those dealing on the ground with the infinite variety of cases that human ingenuity throws at them Two factors should incline us to particular caution. The first factor is that the Government are themselves a party to most judicial review cases. Subsections (9) and (10) look very like an attempt to tilt the playing field against those who seek to hold public authorities to account for their unlawful actions. The judges can and should be trusted to serve the interests of justice without presumptions designed to serve the interest of their promoters The second factor is that the remedies in respect of which the presumption applies have always been treated by the courts themselves as suitable for exceptional cases only, not just in this jurisdiction but in other jurisdictions where they are used; in other words, the Government are attempting to reverse a presumption that the judges have themselves developed in the interests of justice Even apparently benign fetters on judicial discretion may have unanticipated consequences. So, despite the good intentions behind it, I am a little wary of the words that would be substituted by Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. Had this been the law, it would no doubt have been argued that the rights-holders must have their pound of flesh from the innocent copiers of CDs, since to restrict the scope of the quashing order could have denied them an effective remedy. I am not sure that would have been a just result The Minister, as the consummate advocate he is, knows that his best chance of defending this presumption is to minimise its significance. Indeed, the first time he mentioned it this evening, he described it as a so-called presumption, although the adjective was later dropped, and his Second Reading speech scarcely acknowledged its existence. He preferred to emphasise that it is "ultimately up to the judge to decide" whether to take out the tools provided by Clause 1, that "this does not limit the flexibility of the court", and that subsections (8) and (9) are simply "there to ensure a consistent but rigorous approach to identify the appropriate remedy in each case."—[Official Report, 7/2/22; col. 1380.] Yet subsection (9) is not as benign as that. It creates a rebuttable presumption in favour of the Clause 1 remedies in any case where they would offer adequate redress—a phrase whose meaning, as we discussed at Second Reading, is highly uncertain and obscure. Yes, a robust interpretation by the highest courts might confine it to very limited circumstances. However, such an interpretation would take time to achieve and, in the meantime, the steer inherent in this proposed new subsection will, I am afraid, be picked up and will retain its power to influence and even intimidate the less experienced judge Proposed new subsection (10) makes it worse by singling out for a special weight the factor identified in proposed new subsection (8)(e)—a factor that is itself uncertain and problematic, for reasons we have already heard. Particularly troublesome, going back to Amendment 11, is the weight that would have to be placed on action proposed to be taken by a public authority in respect of which no binding undertaking is, however, offered to the court However, my point is wider ranging. The particular weight given to one set of factors is in itself objectionable in principle, as a further limitation of the court’s discretion. I sum it up in this way: if proposed new subsections (9) and (10) constrain the free exercise of judicial discretion, they should be resisted on that ground alone; if they do not constrain it, they are pointless clutter and, for that reason, should be removed from the Bill. The underlying point is that there should be nothing in the Bill to discourage judges from holding the Government accountable, where the interests of justice require, for the past consequences of their unlawful acts. I hope that by the time we have finished with it, that is what we shall have.