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Lord Donaldson of Lymington: My Lords, I hope that noble Lords will forgive me for mentioning that I spent 26 years as a judge in the High Court or the Court of Appeal. During that time, for one reason or anothercertainly when I was Master of the Rollsand in view of the importance that I attached to judicial review, an unusually high proportion of my work was concerned with judicial review.
As a result, I understand the principles that in factthis is importantguide the judges. For present purposes, they are: first, that the judicial review jurisdiction will not be exercised if SIAC is equally capable of providing a remedy; and, secondly, that the merits of ministerial action are wholly irrelevant. The sole concern of judicial review, for practical purposes, is whether the action that is taken by the Secretary of State is within his authority or, as the case may be, if the action that is taken by SIAC is within its authority.
As the noble Lord, Lord Goodhart, pointed out in an earlier debate, the two jurisdictionsof judicial review and appeal, whether or not that is limited to a point of laware not mutually exclusive. They are complementary. As the noble Lord, Lord Lester of Herne Hill, attested, in 99 cases out of 100 the judicial review judge stands back and leaves it to the other jurisdiction if the other jurisdiction has the width of jurisdiction to deal with the matter.
I do not know how many judicial review cases I have dealt with. Most will involve local authorities. In judicial review, I have intervened only once where another tribunal had the necessary jurisdiction to deal with the problem. I did so in exceptional circumstances; I mention it to indicate how exceptional. A police officer was disciplined by his chief constable. There was a long periodI forget how long but it was a matter of yearsbefore the police officer was called on to answer the charge. It seemed to me and those sitting with me that on no possible view could the police officer have had a fair hearing. He could have appealed to a police appeals tribunal which would, I hope, have quashed the sentence straight away. If it had not, we would have quashed the appeal tribunal's decision. So the position was absurd. We were going to leave this unfortunate officer in doubt about his future when we could tell with absolute certainty what that future was. Therefore we said, XWe will step in and quash it". It is only in such exceptional circumstances that that can be done. I regard it as a one-off. Regrettably, I am unable to say what my total
More importantly, I know of no judge who has ever been guided by his view of the merits of ministerial or local authority policy which he has been invited to review. Certainly I never have been. The issue is always: is the action authorised? Nothing else. That said, I understand and sympathise with the dismay of a Minister whose policy decision is quashed. He has no doubt that his policy is in the national interest. He has no doubt been advised that it is within his authority to act as he has done. Were it otherwise he would have looked for another policy. In these circumstances it must seem clear to him that an unelected judge has entered the political arena and disagreed with his policy. That is totally untrue, but I can well understand his reaction. It is not the correct conclusion. It is possible that the Minister's advisers are right. Judges do not claim infallibility. The right remedy then is to appeal. In appropriate circumstances, an appeal can be brought in very quickly.
The problem for Ministers in accepting that an adverse judicial review decision is based upon vires rather than merit has been aggravated by the provisions of the Human Rights Act 1998 which require judges to test the limits of ministerial authority against the provisions of the Act in addition to the words in which the authority is expressed. It follows that what was once adequate authority may cease to be such, although the terms of the authority are unaltered. It may be good or bad but it is the arrival of the Act which produces that curious situation. I judge from press reportsa wrong basis from which to do anythingthat the lorry case which is commented upon in the newspapers today is just such an instance. But for the Human Rights Act the judge would have had no difficulty. He thought that he was constrained to reach a different conclusion. The Home Secretaryif it is the Home Secretaryhas rightly appealed and it may be that the judge was wrong. I know not.
I have spoken of judicial review in terms which might suggest that it is something invented by judges for the discomfiture of Ministers. Not so. The jurisdiction extends to all public authorities including all tribunals andit may surprise noble Lordsall county courts. It is a very wide jurisdiction.
I have the greatest respect and admiration for the way in which the noble and learned Lord the Attorney-General is discharging the duties of his high office. However, when he implies that one has to choose between having a wide-ranging system of appeal from decisions of the SIAC and judicial review he is, if I may so with respect, completely mistaken. They are not alternatives. They can very reasonably be complementary to one another. With regard to the Chahal case he says that judicial review was held to be a totally inadequate remedy. So it is by itself, because it is concerned with authority not merits. One needs both. So long as the traditionit now almost amounts to a rule of lawpersists that no permission will be given for judicial review if there is a better remedy, I cannot see any particular problem.
The noble and learned Lord says that the debate has demonstrated that there is not anything that judicial review would add to the SIAC appeal system. With great respect, he is simply wrong. It is highly unlikely that there would ever be a need to invoke judicial review but it would not be open to the SIAC to challenge the conclusiveness of a certificate by a Secretary of State under Clause 30(3). That could be challenged on judicial review if evidence was obtained that the Secretary of State, notwithstanding his certificate, had acted in reliance on some quite different matter.
The noble and learned Lord, Lord Mayhew, has already made the point that if the SIAC strayed and erred from its own authorities, which are wide, it could not judicially review itself, nor could the Court of Appeal. That is the important point. I say that because I have had experience of this. When trying an appeal, it suddenly emerged that there was an underlying judicial review point. We were satisfied that we could not deal with it. So what were we to do? What we didit caused some hilaritywas to invite counsel to allow two of us to sit back in our chairs and imagine that we were not there, and to apply to the third judge for permission to bring judicial review proceedings. To no one's surprise he granted that. We then moved the newly-formed judicial review proceedings into the Court of Appeal and proceeded with the two together. But we did think that it was necessary.
I know of no case in which on an appeal you can deal with judicial reviewwith one exception. The noble Lord, Lord Lester, who knows about these matters in great detail, will no doubt remember it. A council tenant was given notice to quit by his landlord local authority. He said that it had no authority to give him notice to quit as a matter of statutory construction. The local authority said, XSo what? Under public law what is done by an authority stands until set aside. It has not been set aside. Therefore, he must be evicted and the appeal must be dismissed". The Court of AppealI was not a member of the courtmade new law. It said that where under private law someone was defending his rights and for that purpose he had to impugn some action in public law, he could do so. So far as I know, that is the only exception.
I ask myself what other objections can there be to leaving open the bare possibility of judicial review; and it is a bare possibility. That it would produce delay? That is not so. Both the High Court and the Court of Appeal can take action within hours, day or night, given a sufficient degree of urgency.
Perhaps I may illustrate that. I began a hearing in the NIRC at 10 o'clock at night. I threatened counsel that I would sit until they dried up. They said that they would take me on. At four o'clock in the morning I gave in. But it can be done. I just mention another case. A Jehovah's Witness, a youth of 16, objected to a hospital order requiring a blood transfusion. The medical advice was that he could live for only 48 hours in the absence of a transfusion. Mr Justice Ward, as he then was, started the hearing and we were confident that he would order transfusion and that the youth and
Then it is said that there would be leaks from the High Court. That is not so. I conducted the New Cross Building Society appeal totally in camera. Nobody knew that the appeal was taking place. We would not allow the judgment to be disclosed until there had been the opportunity of appeal to the House of Lords. In fact, the case was settled.
Where does this leave us? If the amendment is carried it remains most unlikely that judicial review will ever be sought. If it is rejected, the message will go out loud and clear, not as the noble and learned AttorneyGeneral believes, that judicial review is unnecessary, but that the Government are bent on having the power to operate outside the rule of law.
Lord Lester of Herne Hill: The Joint Select Committee on Human Rights said in both its reports that it was not persuaded that the conditions for a derogation had been sufficiently explained to Parliament. That is a very important matter. The noble and learned Lord, Lord Steyn, in his recent Holdsworth Lecture, had come to the same conclusion in his extra-judicial capacity.
I mention that because the Government are now in quite serious difficulty for this reason. If a suspected terrorist takes them before the European Court of Human Rights, the starting point will be that the expert Select Committee of both Houses has twice asked Ministers to come to both Houses with sufficient evidence of emergency and of the exigencies of the situation being satisfied. It is in that context that we have to consider these amendments and whether the ouster of judicial review makes sense. The Government will need to defend themselves against criticism for having imposed a scheme of detention without trial and without effective judicial review.
I have said it earlier this evening, but I take the view that the SIAC procedure will in almost all cases provide effective remedies as will the right of appeal on a matter of law to the Court of Appeal. However, I believe that there are two extremely strong reasons for supporting these amendments which have not yet been made. The first is that the Government have not yet introduced all the safeguards that the Select Committee advocated in its reports. Therefore, only a judicial review court might, in extreme circumstances, have to write in one or two of those safeguards.
The second is an international political reason. The Venice Commission for Democracy, on which Professor Jeffrey Jowell QC is the British representative, has the task of spreading democratic ideas under the rule of law across the world. Professor Jowell told me that he would find it extremely difficult to explain in central and eastern Europe how the
It is quite clear from the speeches in this House and the other place that the arguments about SIAC are complicated and are not really persuasive to those who are not expert lawyers. I therefore regard the retention of judicial review as of enormous symbolic value. I believe that sometimes the rule of law requires symbols as well as legal reality. It is for that reason, since judicial review does no harm, that I strongly support these amendments.
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