I have written before about (what is now) clause 64 of the Criminal Justice and Courts Bill. If enacted, it will insert new provisions into s 31 of the Senior Courts Act 1981 such that relief must be refused
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
It will also be possible—and sometimes obligatory—for the court to consider this point not at the substantive-hearing stage, but at the permission stage. The High Court will be permitted—and, if the defendant makes a request, required—to consider whether the outcome would have been substantially different absent the impugned conduct, and will have to refuse to grant leave if it is highly likely that the outcome would not have been substantially different. This contrasts with the present position, whereby courts may refuse relief or refuse to grant leave if satisfied that it is inevitable that the outcome would have been no different.
Clause 64 (along with other aspects of the Bill) was considered by the House of Lords on 28 July. Notable contributions to the debate were made by former Lord Chief Justice Lord Woolf and former Supreme Court Justice Lord Brown. In relation clause 64, Lord Woolf said that courts already consider whether the outcome would have been substantially different
and, in their discretion, will refuse relief—indeed, they will refuse permission to make the application—if they are of the view that the application is misconceived and it is not appropriate that it should go forward, even though there may be some technical reasons why it could be successful. Clause 64 has the effect of changing what is the court’s discretion to take that action into action which it must take. That is very different, because it would need to decide whether someone who has a remedy—that is the premise of Clause 64—should be turned away from the court even without having his case heard, as the refusal applies to the process of granting permission to apply for judicial review as well as judicial review itself. This would be very unfortunate. In particular, I do not think, with the greatest respect to the draftsman of Clause 64, that he had in mind the increasingly important jurisdiction of the High Court, on application for judicial review, to grant declarations.
In the case of a declaration, what the court does is to clarify the legal position. It may well be possible to have a case … where what is at stake is a matter of only a few pounds, but where the citizens in general will all be affected by a few pounds. We do not want, in that situation, to have more than one application; otherwise it is simply duplicating the work of the court. A single application will be made and the court will come to a decision. If the decision is in favour of the applicant, he may recover the few pounds to which I referred. The provision in Clause 64 would, it seems to me, make that impossible. It is clear from the Explanatory Note that the Government have in mind declaratory relief in this context. This illustrates why the proposal is most unfortunate. The position is one where the courts need to have flexibility, so as to do justice to the different parties, as I have indicated. The clause, unless the Minister makes it clear that I am wrong on this, will prevent that.
Meanwhile, Lord Brown argued that clause 64 reflects a fundamental misapprehension on the part of the Government as to the nature and purpose of judicial review. He said that the clause
dictates that the court must, without more ado, dismiss the challenge—with no relief or declaration. It is a slippery clause, as the noble Lord, Lord Carlile, has explained. As others have explained, the court on judicial review is simply not concerned with the substantive merits or demerits of the decision, only with the question whether the impugned decision was lawfully arrived at. The merits of a decision which is under challenge in judicial review are not for the court but for the public authority alone.
Lord Brown also raised concerns of an even more fundamental nature, characterising the fact—not merely the details—of legislative intervention in this area as heretical:
What the Government are proposing here is a heresy. With regard to Clause 64, it is a double heresy. Without repeating all that I said at Second Reading, I will try to explain what I mean. The basic heresy here is to treat judicial review—which of course is the title of the whole of this part of the Bill—as a matter generally suitable for legislation at all. Essentially, I suggest that it is not. I seriously wonder if those who are behind these proposals understand the intrinsic nature of this supervisory jurisdiction. Judicial review is no more and no less than the exercise of the courts’ inherent jurisdiction to ensure that the decision-making of the Government, its executive action, remains within the bounds of legal propriety. As the noble and learned Lord, Lord Woolf, explained today, it is judge-made law par excellence; it has been and should remain, essentially, a matter for development and control by the judges themselves. If ever there was an area of the law that for the most part should remain free from legislative interference, it is this. It is difficult, perhaps impossible, to think of any field of law less suitable for legislation, for government diktat as to its future development. Most obviously this is so with regard to provisions which, as here, are designed to essentially cramp and narrow down judges’ powers and discretions. In this field of inherent control of administrative action, it is intended to discourage those who seek to question the legality of governmental decision-making.
Lord Brown makes an important point here. The supposition inherent in clause 64 (and other proposals the Government has made in relation to judicial review) is that the courts’ inherent supervisory jurisdiction is something that can and should be subject to manipulation via legislation enacted at the behest of the administration. It need hardly be pointed out that this raises significant separation-of-powers issues, given that it is that very administration (among others) whose decisions fall to be scrutinised by way of judicial review. Of course, a sovereign Parliament can, as a matter of law, do what it likes: but it must also recognise that legislation undermining judicial review risks destabilising the delicate if ill-articulated balance of power that is immanent within the UK’s unwritten constitution.