I am grateful to the hon. Lady; her comments show the value of interventions, because we can have a genuine debate about a very important issue that goes to the heart of Lords amendments. My concern about the Lords amendments to clauses 1 and 2 is that their effect would be to go further—I am sure that it was not intentional—than their lordships’ usual role of providing close scrutiny and careful amendment, where the principle of the Bill is maintained but some of the details are altered. We have seen an example of that on presumption, on which the Government have rightly conceded.
2.15 pm
However, when their lordships, in effect, challenge a Bill’s underlying premise, we have a problem. This was not just any old Bill; it was underlined by a manifesto commitment to look carefully at constitutional reform and, on the basis of independent recommendations and consultation, to take necessary action. The Government were mandated to do that by our manifesto. Their lordships did not oppose the Bill on Second Reading, rightly adhering to the Salisbury-Addison convention about manifesto commitments.
I say to their lordships, in a spirit of friendliness and co-operation, that they have to look very carefully at the overall effect of amendments that, in my considered opinion, frankly serve to undermine the whole thrust of part 1 of the Bill. That is regrettable and this elected House has to push back against it. I am very grateful to the Opposition spokesman, the hon. Member for Hammersmith (Andy Slaughter), for indicating that Her Majesty’s Opposition would not seek Divisions on amendments to the clauses in part 1. That is right and respects that principle.
However, some of the rhetoric about the reforms that we seek to introduce to judicial review does not stand up to even the lightest scrutiny. This is not an attempt to fetter judges’ discretion. It is, in fact, a sincere attempt to widen the powers that are available to them on judicial review remedy. In my view, nobody put it better than the noble Lord Judge, who talked in the other place about prospective quashing orders, where, for example, a local authority might have erred on a technicality, and said that there was no real public interest to be served in going through a process that patently would have resulted in the same outcome again because of the technical breach that had to be remedied by way of judicial review. This is all about expanding the discretion of the court.
There was no argument about introducing suspended orders. That could have been quite controversial. I can tell the House in all candour, having worked hard on the process of developing this policy prior to the Bill being introduced, that conditional orders were looked at very carefully. After a lot of soul-searching and discussion with those in the know—those who understand how judicial review works—the Government elected not to proceed with that option. Therefore, even before the Bill was introduced, there had been a refining process.
We did, in some measure, go beyond what was said by the independent review of administrative law, which was chaired so ably by the noble Lord Faulks. However,
that is the prerogative of Government, after proper consultation, and that is precisely what happened based on our manifesto commitments. I make no apology about the provisions in clause 1. They are eminently sensible and I think they will enrich, preserve and enhance the discretionary power that judges have under the invaluable system of judicial review. This is an important step forward in the evolution of supervisory jurisdiction. It is a measured, incremental reform that is in the noblest traditions of the party that I am proud to represent.
Clause 2 is important as well. I say, with the greatest respect in the world, that attempts in the other place to reach some sort of compromise are ill-conceived. I use that phrase advisedly, because I know some of the noble Lords who proposed it and I have the greatest respect, for example, for the noble Lord Etherton. I am afraid that there was perhaps too much of a tendency in the other place to look at things from an appellate point of view. That is inevitable; we have very senior judges who end their long and illustrious careers dealing with appeals. That is the nature of things; they have gone through the system to the top. That is all fine and important, but sometimes, the experience of perhaps the upper tribunal, in this case, or courts of lower record is not properly encapsulated in some of the arguments. Again, in a spirit of candour and friendship to the noble Lords, I would say that the point is being missed: the issue lies not just at appeal, but at the upper tribunal in the lower court as well.
The whole purpose of the change—the ouster, if you like, of the Cart jurisdiction—was, in the words of Lord Foulkes in the other place, to “grasp the nettle” and end an otiose jurisdiction: an unnecessary addition to existing rights of appeal. Let us not forget that any person in the system, any applicant, has full rights of appeal and due process, in every sense of those words, as we would expect in the jurisdictions of England, Wales and Scotland.
Frankly, clause 2 is important with regard not just to its subject matter, but to the principle of ouster itself. That is why we carefully calibrated and thought through an ouster clause that would stand the test of judicial scrutiny; I nod to the officials in the Gallery with whom I had the honour of working. I very much hope that it does. There have been many attempts in this place to introduce ouster clauses that have been far too “brave”, to use Sir Humphrey Appleby’s word, and have failed the scrutiny of our reviewing jurisdiction.
I believe that clause 2, given the careful way in which it has been couched and its reflection of the clear intent of this House, as expressed in votes at all stages of the Bill, will and must stand the test of scrutiny. If not now, when? I very much hope that if this ouster clause works, we can use it as an example of how sensitively and carefully to use the will of this place, in a democratic and fair manner, to reset the balance that has to be carefully struck between the intentions of the legislature and the important work of our independent judges. That is what clause 2 is all about.
Well intentioned attempts to seek a compromise miss the point. They will in effect render nugatory the recommendation made in IRAL—a clear recommendation made by independent and, in the proper sense of the word, disinterested members of that review panel—and will, I am afraid, have the baleful effect of undermining the intention of this House. I am pretty sure that that is
not what their lordships really intended. I say to them that it is the clear will of this House that those clauses go through, with the Government amendment, as part of our incremental reform programme that is designed to rebalance our unwritten constitution and strike the right relationship between this elected House and this Parliament and our independent, world renowned judiciary.