Orders of the Day — Supreme Court of England and Wales

Part of the debate – in the House of Commons at 10:26 pm on 23rd November 1999.

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Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 10:26 pm, 23rd November 1999

I congratulate the Minister on the accuracy with which she read out pretty well word for word the first seven paragraphs of what Lord Bach said when the order was debated in another place. Having said that, may I turn to some interesting points that arise from the order? Has the Minister considered the implications of the Human Rights Act 1998 and the compliance cost assessments that were put to the House on that Act and the Immigration and Asylum Act 1999, as they have to be submitted in relation to all Acts of Parliament? On further reflection, in the light of what Lord Bach said in another place and the Minister has repeated tonight, do those compliance cost assessments need to be corrected and does some kind of apology need to be given for perhaps an underestimate of the extra costs that those pieces of Government legislation would bring about?

The Minister is talking about some fairly major changes in the work load according to her own assessment. Even if only a quarter of the applications are allowed and proceed to the divisional court for determination, 1,000 to 2,000 additional applications will be made for leave to move in immigration cases after implementation of the Human Rights Act. That is a substantial increase. While it is recognised that the Government have to reflect on the consequences of their legislation, I should like to raise some further specific issues. I ask the Minister to comment on them in her reply.

In another place Lord Kingsland asked Lord Bach what saving in judicial time the Department expected as a result of the Woolf reforms—the reforms to the civil courts. Lord Bach said: I am not in a position to be able to give any real estimate as to the number of Court of Appeal judges that may be required as a consequence of the extra work involved. However, I promise the noble Lord— the shadow Lord Chancellor, Lord Kingsland— that I will take this back to the Department. I shall ensure that research is carried out and that a letter is sent to the noble Lord, a copy of which will be placed in the Library at the same time."— [Official Report, House of Lords, 10 November 1999; Vol. 606, c. 1389.] That debate in another place took place almost a fortnight ago, yet when I checked in the Library half an hour before the Division I was told that no copy of any such letter had been placed in the Library. I am sure that the Minister will recognise that almost two weeks is rather a long time for a letter to be placed in the Library of the House—one on which Lord Bach gave a solemn undertaking. Will the Minister comment on that matter? Will she ensure that the sending of the letter is expedited, as it does not appear to have taken place?

Will the Minister comment on the concerns expressed in a book entitled "The New Judiciary: The effects of expansion and activism"? The foreword is by Lord Justice Sedley, and the book was written by an academic at the London school of economics—Kate Malleson. She writes about the development of judicial review over the past 30 to 40 years—something that has certainly led to a need for further judicial appointments. She states: The publication of a guide to civil servants in 1987 and updated in 1995 entitled "The Judge over your shoulder" illustrates the extent to which judges have come to oversee the work of government in its broadest sense. This process of increasing judicial activism is about to enter a new phase with the passing of the Human Rights Act, incorporating the European Convention on Human Rights into domestic law. The exact effects of the change are still very much open to debate, but few doubt that one result, in the short term at least, will be to fuel the growth of judicial activism. Does the Minister feel that, as a result of that increase in judicial activism, even the maximum number of judges she proposes will be insufficient? Kate Malleson continues: This expansion of judicial power is redefining the role of the judges in ways which are only just starting to emerge. As well as raising implications for the political system at a general level, the changes have particular consequences for the structure of the judiciary and the processes by which it operates. Some indication of the likely direction of these trends can be gleaned by reviewing the experience of the judiciaries of other countries since the developments in judicial activism in England and Wales are mirrored by strikingly similar changes world-wide. If the consequences of the provisions in the Human Rights Act 1998 and the Immigration and Asylum Act cause the pressure outlined by the Minister this evening and by her noble Friend Lord Bach in another place, will that not lead to yet more of what the academic author described as "judicial activism"? Should we not be extremely concerned about that in this House, where we have always been conscious of the preservation of the separation of powers doctrine? When the Minister sums up this important debate, I hope that she will give us some answers on the consequences—perhaps not fully thought through—of the measures that the Government introduced in the previous Session, which have led to the need for extra judges. I hope that she will also comment on the dangers of greater judicial activism.