JUDICIAL REVIEW (Hansard, 17 July 1985)

§ Sir Brandon Rhys Williams (Kensington)
I beg to move, That the clause be read a Second time.
My right hon. Friends and I have discussed new clause 1, and they know that I am interested in the subject for personal reasons. They also know that a significant body of well-informed people who observe the procedures of our courts believe that a change in the practice of the courts such as I am suggesting is highly desirable and ought immediately to come into effect.
Private citizens have come increasingly to rely on the judicial review procedure to obtain justice. The application goes before a single judge, who assesses the merits of the case and decides whether the applicant is to be entitled to take his or her complaint to the High Court.
Although not universal, I understand that it is normal for the single judge to make a ruling without stating reasons in court or in writing. That is wrong and should be changed immediately. In the event of the applicant being refused leave to take a case further, he and his legal advisers will have to make a difficult decision. For a private citizen, there is possibly the risk of futile but substantial expense if he decides to take his case further. There might be long delays before the outcome of the case is known and, during that time, he might lose chances to choose another solution which is available to him at once, but which might not be available if, in due course, his case comes to court.
If the applicant is advised to take the issue up for judicial review and his case is rejected out of hand by a single judge, that is likely to shake his confidence in his legal advisers. He might wonder whether they have given him bad advice.
A sense of resentment can be aroused if somebody who thinks that he has a fair case which ought to be heard is refused a hearing and no explanation is given. That is a type of resentment which British citizens ought never to feel about the operation of our courts. There ought never to be a suspicion that their case has not been considered adequately or that some factor which they do not understand, and which they could have overcome, has stood in their way when seeking justice. Justice should never be frustrated arbitrarily.
I have not been through all the relevant cases to see how many times the single judge has refused an applicant who has afterwards been able to establish that he has a serious case to be heard, though I am sure that such evidence could be adduced. But my right hon. Friends should be willing to accept my proposed change of procedure irrespective of whether I can support my argument with such evidence.
349 If the judge is clear about his decision, he can express it without being exposed to a serious extra burden. I am not asking that he should make a substantial written explanation, but he must state his reasons. If the judge is not perfectly clear and does not wish to be embarrassed by having to explain himself, there could be genuine doubt about whether justice has been done. That could not be right.
I hope that my right hon. and learned Friend will assure me that, if he does not like a new clause of one and a half lines appearing in the Administration of Justice Bill, the same effect will be achieved by another and, if he wishes, more appropriate route. I do not know how the Lord Chancellor would influence the practice of the single judge in the High Court, but, if the House is not to divide on the new clause, we are entitled to look to my right hon. and learned Friend to give a specific undertaking that the change required by my new clause will be made by another means.

§ Mr. Alex Carlile (Montgomery)
The hon. Member for Kensington (Sir B. Rhys Williams) has raised a serious and important issue. The use of applications for judicial review has greatly increased recently, especially since the changes in the procedure from the old prerogative writs to the use of what we now call the judicial review procedure under order 53 of the Rules of the Supreme Court. Judges at all levels have pushed back the borders of judicial review. They are increasingly prepared to consider cases where Government Departments, local authorities and other bodies exercising quasi-judicial functions have not operated a fair procedure and have not acted properly.
Most applications for judicial review are made by aggrieved private citizens—many of them of limited means—who feel that important principles that affect their interests, and perhaps those of many others, have been attacked by the action of Government Departments or other bodies. I suspect that since applications for judicial review have become fashionable as a means of seeking judicial remedy, there have been many frivolous and unmeritorious applications. For those reasons, among others, the procedures relating to judicial review have been altered and sophisticated to enable applications with merit to be heard rather more quickly than before—there are still considerable and unacceptable delays, however—and applications with no merit to be disposed of rapidly and relatively informally.
Judges have never been afraid, when called upon to do so, to give their reasons, if necessary stating that an application before the court, whatever the jurisdiction under consideration, lacks merit or is even frivolous, vexatious or an abuse of the court's process. A long-standing tradition, inherent in the court through the operation of the common law, is the power to declare openly that a matter before the court falls within the categories of frivolous, vexatious and an abuse of the court's process. There is no question, therefore, of judges being put in an unpalatable position through having to give reasons in the situation postulated by the hon. Member for Kensington.
Most important in this context is the fact that at the moment there is no Bill of Rights to deal with contemporary issues that affect daily life in this country. I believe that there ought to be a Bill of Rights. Unfortunately, neither the Government nor the Labour party has been prepared hitherto to accept the need to go 350 even to the extent of incorporating the European convention on human rights into our domestic law. Consequently, all that many citizens can do, in an effort to enforce what they believe, rightly or wrongly, to be their rights, is to make an application for a judicial review. The jurisdiction of the courts in England and Wales is both lacking and inadequate in that respect.
One small way to ensure that such manifest feelings of injustice as can occur, did not arise would be to ensure that if an application is thrown out by the court, the applicant at least knows why. I hope that the Attorney-General will say that he accepts the principle that in such cases reasons should be given. If he is not prepared to accept that principle, I can assure him that the considerable pressure for fundamental changes to public law will become stronger.

§ The Attorney-General
I am grateful to my hon. Friend the Member for Kensington (Sir B. Rhys Williams) for raising this matter. I have a great deal of sympathy for it. I believe that I can give an assurance both to my hon. Friend and to the hon. and learned Member for Montgomery (Mr. Carlile). The Government agree that reasons should always be given. If that does not happen in practice, we should be grateful if examples of difficulties could be sent either to the Lord Chancellor or to me. The Lord Chancellor will consult the judiciary and. if necessary, introduce appropriate rule changes under order 53, which has virtually created the new system of judicial review. The hon. and learned Member for Montgomery described it as rolling back the frontiers. I prefer to say that it is advancing the frontiers. Whichever word one prefers, order 53 has created considerable changes which can only be in the interests of the general public. Therefore, I welcome them.
The changes are entirely the result of the rules committee changing the rules. They have not been brought about by legislation. Therefore, the changes for which my hon. Friend the Member for Kensington and the hon. and learned Member for Montgomery have asked can be made by rules of court. Primary legislation is not the right way to go about it.
Having heard my explanation, I hope that my hon. Friend the Member for Kensington will withdraw his motion.

§ Mr. Robert Maclennan (Caithness and Sutherland)
Can the Attorney-General say what time scale he has in mind for the consultations and for the introduction of these changes?

§ The Attorney-General
I should like to be able to answer the hon. Member for Caithness and Sutherland (Mr. Maclennan), but this new clause has been examined only recently. I have been one stage removed from it. However, my consultations earlier this afternoon with the Lord Chancellor have allowed me to give this assurance.

§ Sir Brandon Rhys Williams
With the leave of the House, Mr. Deputy Speaker.
I should like to thank my right hon. and learned Friend the Attorney-General for what he has said. If the House were to divide on this new clause, the feelings of hon. Members would be quite clear. I hope that the rules committee will bear in mind the strength of feeling about this matter. Although this has been only a short debate, it 351 is nevertheless incumbent upon the Lord Chancellor, or the rules committee, to ensure that action is taken quickly and that what is contained in my new clause should be brought into effect by one means or another.
In view of the assurance that I have been given, I shall not seek to divide the House this afternoon. Therefore, I beg to ask leave to withdraw the motion.