Judicial Review Challenges: Cost (Hansard, 5 December 1995)

§ The Minister of State, Home Office (Baroness Blatch)
My Lords, it is only possible to estimate the total cost to the Home Office of all judicial review 886 applications made in the past year. The total cost, which includes Treasury Solicitor's charges, counsel's fees and the time of Home Office lawyers, is thought to be about £2 million. It is not possible to say what proportion of the cost related to successful challenges by judicial review, but the vast majority of applications are judged to be without foundation.

§ Lord Ewing of Kirkford
My Lords, that figure is absolutely scandalous. Is the Minister aware that, despite all the legal advice the Home Secretary is bound to receive from his own legally qualified officials and despite repeated warnings from noble and learned Lords in all parts of your Lordships' House, the Home Secretary gets his head down and bulldozes ahead with legislation which is subsequently overturned in the courts? Is the Minister aware that if the Home Secretary were a local councillor he would be surcharged? What arrangements are being made to surcharge him? He has become an expensive luxury which the taxpayer simply cannot afford.

§ Baroness Blatch
My Lords, so long as it is the right of individuals to challenge the Home Secretary by using the judicial review process, it is important that they should be afforded that right. When they challenge the Home Secretary, it is important that he gives account of himself in the process. The £2 million which I mentioned in my original Answer covers all judicial challenges to my right honourable friend. Over 90 per cent. of the cases are found in his favour. Only 10 cases involving important decisions have resulted in adverse findings since my right honourable friend became Home Secretary.

§ Lord Rawlinson of Ewell
My Lords, is my noble friend aware that some of the decisions that have been made caused considerable surprise? One, in particular, was the decision to overrule the Home Secretary's refusal to allow Mr. Moon into this country. His organisation was examined by a jury of this country and found to be a political organisation. Is the Minister therefore aware that some people are surprised at certain decisions recently made by judges?

§ Baroness Blatch
My Lords, my noble and learned friend is absolutely right. I trust that noble Lords believe, as I and millions of others do, that my right honourable friend the Home Secretary was right to exclude the Reverend Moon from the United Kingdom. Indeed, the judge himself declined to find my right honourable friend's decision irrational. However, the judge found him wanting in that an opportunity to make representations had not been given to Mr. Moon.
To continue the point made by my noble and learned friend, it is also worth noting that the judges themselves are not always in agreement. To take the case of criminal injuries compensation, it is noteworthy that of the 10 judges who considered the case, five found in favour of my right honourable friend and five against. The two judges in the Divisional Court found for him, as did one of the three judges in the Court of Appeal 887 and two of the five judges in the House of Lords. It is not only the Home Secretary who is challenged: sometimes the judges themselves do not agree.

§ Lord Cocks of Hartcliffe
My Lords, in view of the legal profession's growing awareness of the problem of its fees, will the Minister agree that this is a suitable case where both solicitors and banisters might be encouraged to give their services free?

§ Baroness Blatch
My Lords, I believe that that is a question for our friends in the judiciary.

§ Lord Campbell of Alloway
My Lords, will the Minister agree that whether or not we are surprised is fairly irrelevant? What matters is that the separation of powers under the unwritten constitution between the independent judiciary and the Executive should always be maintained. The cost of the percentage of successful challenges affords no cause for legitimate concern.

§ Baroness Blatch
My Lords, my noble friend is absolutely right. It is important to put on record that my right honourable friend only uses those powers which are given to him by a sovereign Parliament.

Lord Bruce of Donington
My Lords, would it not be good if Her Majesty's Government devoted as much care and detailed attention to the drafting of legislation as Her Majesty's judges do in reviewing some of its consequences?

§ Baroness Blatch
My Lords, that is an important point. Recent changes have made it easier for Parliament to consider legislation; for example, the work of the scrutiny committee which takes place before Bills go into Committee. So the point is important. However, at the end of the day it is for Parliament to decide and for Home Secretaries to use the powers given to them by a sovereign Parliament.

§ Baroness Rawlings
My Lords, the Court of Appeal has today allowed the Home Secretary's appeal in the case of John David Pierson. It set aside the decision of the Divisional Court which had quashed the Home Secretary's tariff and accepted that the Home Secretary had been entitled to increase the tariff. How many cases does the Home Secretary win that we never hear about? What is the percentage?

§ Baroness Blatch
My Lords, it is welcome news that my right honourable friend was found to be entirely lawful in using his powers, both to set the tariff and to increase it. My right honourable friend wins over 90 per cent. of applications; therefore the cases that he loses are few. Two cases last week were very good examples, among so many, of findings in favour of the Home Secretary. We have heard very little about them. There was enormous publicity and media outcry when Mr. Justice Dyson held the detention of certain asylum seekers to be unlawful but hardly a whisper when the Appeal Court comprehensively overturned that judgment. The truth 888 is that when the Home Secretary loses, there is a great wave of publicity. Of the 90 per cent. of cases he wins, there is hardly a whisper.

§ Lord McIntosh of Haringey
My Lords, will the Minister agree that the very limited figures she gave—the Treasury Solicitor's charges and so on—are dwarfed by the enormous costs to the taxpayer of the Home Secretary being overturned in his attempt to supplant the criminal injuries compensation scheme agreed by Parliament? What is her estimate of that cost to the taxpayer? Surely it must be tens or even hundreds of millions of pounds.

§ Baroness Blatch
My Lords, it is always unfortunate if people suffer such consequences. However, a judicial review system is in place. The Home Secretary gave an account of himself; the judges were not all in agreement about the right of the Home Secretary to act in the way he did; and that was a consequence of it. It is always unfortunate. I gave figures of the occasions—about 10 only—in which this Home Secretary has been found wanting. Over 90 per cent. of challenges to the Home Secretary are unsuccessful.