Executive Powers: Complaints Procedure (Hansard, 18 April 1989)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, the Government attach great importance to the availability of appropriate procedures and remedies in cases where abuse of executive power is alleged. The Government agree with the conclusions of the Civil Justice Review that the High Court is the appropriate forum for public law cases, including applications for judicial review.

§ Lord Campbell of Alloway
My Lords, while thanking my noble and learned friend the Lord Chancellor for his reply, does he not agree that if Parliament were to set up an administrative court as proposed in this Question that could take into account the European Convention on Human Rights, then an effective system of control by the judiciary of abuse or misuse of power by the Executive—which is not available under judicial review, which affords no full re-hearing—could be established in the interests of the subject? I also ask my noble and learned friend whether he does not agree that, unless and until appropriate domestic judicial procedures are established, our Government shall remain at a disadvantage when impleaded as a respondent before the Commission or the Court of Human Rights?

§ The Lord Chancellor
My Lords, the remedy of judicial review developed by the judges is in my view an extremely effective remedy for the general problem of the misuse of executive power. The question of the incorporation of the Convention on Human Rights is a different matter. I do not believe that we should presently contemplate it as a part of the administrative machinery.

§ Lord Grimond
My Lords, does not the noble and learned Lord agree that this is a matter of the greatest importance; namely, the rights of the individual as against the bureaucracy, and that it is causing widespread concern? Therefore, does not he agree that, while we are reforming the law, this might be the moment for discussion of this proposal and for the extension of the judicial review? For example, the noble and learned Lord might wish to issue one of his non-controversial Green Papers on this matter so that we can see the various alternatives possible, thereby dealing with a matter that I suggest is of great importance.

§ The Lord Chancellor
My Lords, I believe that there may be a practical and appropriate limit to the number of proposals that one should consider at one time. As regards this matter, the system of judicial review has been very much developed by the judges. I believe it is a field in which judicial creativity, as 690 my noble and learned friend Lord Ackner once described it, is a very appropriate way forward.

§ Lord Beloff
My Lords, does my noble and learned friend agree that the proposal of my noble friend Lord Campbell of Alloway is to introduce into this country the system of Droit Administratif which Dicey said was the very essence of tyranny?

§ The Lord Chancellor
My Lords, my noble friend's question illustrates the difficulty of securing unanimity of opinion in this area.

§ Lord Annan
My Lords, does the noble and learned Lord agree that the late Professor Sir Jack Hamson, a notable defender of the common law, nevertheless spent the last 20 years of this life stressing the importance of administrative law and the need for this country to develop a system comparable to that which we are about to encounter in the Common Market?

§ The Lord Chancellor
My Lords, as I said a little while ago, I believe that our judges have developed administrative law with great success over the past 20 or 30 years. I believe it is an area in which the judicial power has proved very effective.

§ Lord Elwyn-Jones
My Lords, nevertheless are there not considerable limitations to the role and value of the judicial review in dealing with alleged misuse of executive power, and certainly as regards the possibility of the grant of compensation? Is there now not room for extending the role of judicial review, which is largely directed to examining how the decision complained of was arrived at, into an examination of administrative action which results in what might be claimed to be an actual misuse of executive power?

§ The Lord Chancellor
My Lords, as the noble and learned Lord knows, the scope for examination of executive decisions has been greatly widened over the years. It is appropriate to keep a distinction between the power of the courts to review in this way administrative acts and the responsibility for actually taking administrative decisions. It may not be wise to confuse those. The judges have developed their methods in a remarkable way while still preserving that distinction.

§ Lord Hutchinson of Lullington
My Lords, the noble and learned Lord has pointed out that it is the judges who have made this great advance in protection for the individual against the Executive. Does he not agree that that is a prime example of the vital importance of keeping the judiciary entirely free and independent from the Executive?

§ The Lord Chancellor
My Lords, I have made it repeatedly clear, and I have no problem in saying so again, that I regard the independence of the judiciary as of fundamental importance. I will certainly not be party to any proposals that would in any way impair the independence of the judiciary. It does not of course follow that the independence of the judiciary necessarily means complete independence 691 from other branches of state power, as the office of the Lord Chancellor itself demonstrates.

§ Lord Campbell of Alloway
My Lords, does my noble and learned friend agree that the scope of judicial review cannot be extended further without an Act of Parliament? Cannot the judge grant a full hearing, which is the point of the Question? Does my noble and learned friend agree?

§ The Lord Chancellor
My Lords, having regard to developments over the years, I think it would be unwise to say that the judges could not develop judicial review any further.