Tribunals, Courts and Enforcement Bill [HL]

moved Amendment No. 10: 10: Clause 18 , page 14, line 7, leave out ““3”” and insert ““4”” The noble and learned Lord said: My Lords, in moving Amendment No. 10, I wish to speak also to Amendments Nos. 11, 12, 13 and part of Amendment No. 17. It might be helpful to the House if I try to put these amendments into context. That means starting with Clause 13, which provides for an appeal from the upper tribunal to the Court of Appeal, but only on a question of law and only with leave. Like many other clauses, Clause 13 is pretty complex. As so often, subsection (1) gives with one hand and subsections (6) and (8)(f) enable the Lord Chancellor to take away with the other hand. But in general, Clause 13 follows well trodden ground. Clause 15, on the other hand, is something entirely new. It confers on the upper tribunal a power to hear applications for judicial review. That has never happened before. That in itself should not be a reason why it should not happen now but it is surely a good reason why we should tread somewhat carefully. Hitherto, the power to grant judicial review has been confined to the High Court. One can see that from the very fact that Clause 15 puts ““judicial review”” in inverted commas. It is not ordinary judicial review as we know it. Again, one can see it from subsection (3), which says that relief granted by the tribunal shall have the same effect as if it had been granted by the High Court. A similar reference to the High Court is in subsection (3)(b) and subsections (4) and (5). They refer always to the High Court, not to the county court. The reason is quite simple; the county court does not have, and never has had, a power to grant judicial review. The explanation for that, as so often, is partly historical; the power of the High Court to grant judicial review, which was then called by a different name, existed for many generations before the county court even came into existence. One may then ask why it is that judicial review has never been extended to the county courts or to other judicial or quasi-judicial bodies. Why has it never been extended to tribunals? The reason is that judicial review is the means by which the individual citizen can challenge the decisions of government departments and other public bodies. Such applications are often very high profile. One thinks of applications to challenge the Government’s anti-terrorist legislation, and many other applications of that kind. It is important that such very high profile applications should be heard by judges of the highest standing and the longest experience; and by judges who cannot be removed save by a Motion of both Houses of Parliament. Such judges exist in the administrative court, as we have it today; the names of Mr Justice Collins and Mr Justice Sullivan stand out as judges who have played a very important role in that capacity. Because these are high profile cases, the judges often find themselves subject to attack. One remembers how Mr Justice Collins was attacked by Mr Blunkett when he was Home Secretary. Not all applications for judicial review are high profile; some, as the noble Lord, Lord Thomas, has pointed out, are fairly rubbishy, but these are weeded out at an early stage, because you can only apply for judicial review if you already have leave. On the amendment, I am in favour of extending judicial review to the upper tribunal—it would have very many advantages—but I would only be in favour on one condition; that the judge presiding at the hearing for judicial review by the upper tribunal should be a High Court judge. He would gain much from having the expertise of his fellow members on the tribunal, and the Employment Appeal Tribunal would provide a useful precedent for that. He would provide the authority and experience that go with the office of High Court judge. That is of particular importance at the early stages of this new experiment, which I strongly support. I venture to suggest that an important principle lies behind the amendment and that the principle is worth fighting for. However, the last thing we want to do is to make life more difficult for the Lord Chief Justice. I spoke to him this morning. He pointed out that it was his responsibility under the Constitutional Reform Act to deploy the judges as he thought best. That must be right and one readily accepts that. He also pointed out that there might be circumstances in which he simply did not have a High Court judge available to hear an application for judicial review. I am sure that the House will not seek to tie his hands. He said that he needed some flexibility and I am sure that we can all understand that. It occurs to me that we can meet his needs by inserting in the amendment words such as, ““unless the Lord Chief Justice directs otherwise in a particular case””. We cannot alter the amendment today, but if the Minister were to indicate that she would seek a solution along those lines and perhaps bring the matter back at Third Reading, I would not wish to press my amendment to a vote today. Meanwhile, I beg to move.