I shall say a few words in support of the noble Baroness’s amendment. I thought that she made a very valuable point when she referred to the issue as raising an issue of constitutional principle, because it goes right back to the formation and foundations of the rule of law, where one of the two basic principles is that no man should be a judge in his own court. This was long before the referees got on to the football pitch, but it is absolutely basic rule of law teaching, and it acquires particular force as a principle when the party that one is talking about is the Executive. One is taught that there should be a separation of powers between the judiciary and the Executive, and one can think of many countries that one would not wish to live in where the Executive are able to dictate to the courts whether or not they will entertain an argument. It is that kind of spectre that is raised by the proposal in the Bill, which I hope that the Minister will look at again, more carefully.
As for practice in the courts, as the noble and learned Lord, Lord Woolf, was indicating, it is quite common in judicial review for fresh grounds to call for a fresh decision in the course of the same process. The courts do not as a matter of practice send the whole thing back to the beginning so that it has to start off with a fresh writ, to begin all over again. They are well used to this—and, indeed, the kind of test in the amendment is one that is commonly applied by the courts every day in deciding whether or not fresh grounds should be argued.
I have two points respectively on the wording of the amendment. First, when I read the amendment for the first time it occurred to me that I would have liked to see the word “previously” at the very end of it, just to make it clear that the issue is whether there were good grounds for not raising the matter before the Secretary of State on the previous occasion when he was looking at the issue. Secondly, the test that is put
in the amendment is relatively mild—“good reasons”. There would perhaps be room for looking at that test again and deciding whether it should be put slightly higher, if the Secretary of State is concerned that the court is not applying the kind of test that he would like to be applied—“very good grounds” or “extremely”, or something of that kind. One cannot draft on the Floor of the House.
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The way of doing it to fit in with the constitutional principle, which surely a Government who believe in the rule of law would wish to uphold, is to put the test that the Secretary of State would wish the tribunals to apply into the Bill at the appropriate standard and then, of course, the Secretary of State can be represented and present the argument to the effect that that test is not being satisfied. So I respectfully suggest that it would be dangerous to create what is plainly a precedent, and the wrong kind of precedent to set. It would be a disaster if one found committees in later days trawling through the statute and saying, “You can find it in the Immigration Act 2014, so it’s all right”. I suggest that that is the last thing that we would want to create as a precedent.
Those remarks are just a supplement to the reasons carefully advanced by the noble Baroness. I hope that the Minister will look more carefully at this matter.