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Tribunals, Courts and Enforcement Bill [HL]

We gave notice of our intention to oppose Clauses 15 to 20 standing part to raise three issues. I shall not necessarily mention them in order of importance. The first concerns Clause 17(2)(c). The clause is headed, ““Quashing orders under section 15(1)””. The provision in Clause 17 is identical in terms to that in Clause 132, which applies to judicial review generally. I do not propose to say anything further about this matter until we get to Clause 132 because the issue that is raised is identical. There is no point whatever in requiring the noble Baroness to say what she would have said, had I thought this an appropriate moment, on two separate occasions. I just signal that and leave it aside. The second issue concerns the specific case of immigration, which is raised in Clause 19(1)(7). This point was raised at Second Reading by the noble and learned Lord, Lord Lloyd of Berwick. Once again, I do not want to anticipate what the noble and learned Lord will say about this in the debate that will ensue. I am going to leave it to him to develop the arguments that he drew to the Minister’s attention at that earlier stage. I would say only that the Committee will recall some two years ago the dramatic events that surrounded the attempt by the Government to introduce an ouster clause over judicial review in relation to immigration matters, and the statutory consequences of that. The Committee will note that the Government have returned to this matter. I shall say something about the third issue in a little more detail. It concerns the question of granting to the upper tribunal judicial review jurisdiction. As the Committee well knows, judicial review jurisdiction is traditionally a jurisdiction of the High Court. It derives from the great ancient prerogative writs and, although a series of civil rule reforms have refined the procedure, the principle remains the same. Judicial review was a matter originally for the King’s Bench; now for a court called the administrative court. As I understand it, the Government are seeking to setout in the Bill the circumstances in which the administrative court can grant to the upper tribunal powers equivalent to the old King’s Bench powers. As I understand it, there are two sets of circumstances in which this might happen. The first set is that in which the noble and learned Lord the Lord Chancellor and the Lord Chief Justice can together designate certain categories of matter which can be granted by the High Court to the upper tribunal court to consider as judicial review matters. So if a matter within that category arises in the High Court, the High Court can simply designate it as a matter to be dealt with by the upper tribunal. Or there may be individual cases which the administrative court considers suitable to be dealt with by the upper tribunal. In those circumstances also, the upper tribunal can exercise powers equivalent to the administrative court. I regard this as a rather dramatic innovation. As someone who espouses the Conservative cause in political life, I am extremely cautious of any change to something which has worked extremely well in this country over the centuries and I think it is up to the Government to justify it. But there is one point of particular concern. On the assumption that this proposal by the Government goes ahead, it is extremely important that the judges who hear judicial review matters in the upper tribunal are of the same quality and experience as the judges one would expect to find in the administrative court. It may well be that in the Bill there is some provision that obliges that situation, but I have not identified it. In my submission, it would be most unfortunate if the administrative court were to delegate a judicial matter to the upper tribunal only to find it dealt with by judges who did not have those qualifications that I have just set out. So, with apologies to the noble and learned Lord, Lord Lloyd of Berwick, for passing the buck on matters of immigration, I beg to move.